Home | Databases | WorldLII | Search | Feedback High Court of Fiji

  Download original PDF

China Railway First Group (Fiji) Co. Ltd v Wise [2017] FJHC 280; HBC06.2017 (6 April 2017)

In the High Court of Fiji at Suva
HBC No. 06 of 2017

Between

China Railway First Group (Fiji) Co. Ltd

Plaintiff

And

Sikeli Wise trading as Site-Safe Consultancy

Defendant

COUNSEL: Ms S. Devan for the plaintiff
Mr .......... for the defendant
Date of hearing: 2017
Date of Judgment: ........ 2017

Judgment .

1. 1. Statement of Claim

By an agreement made in writing on 18 April 2012, the Defendant agreed to provide to the Plaintiff health and safety consultancy services, in particular, to monitor and assess Plaintiff’s work sites and personnel for healthy and safety compliance and adherence.

Both the parties, the consultancy agreement dated 18 April 2012 was subsequently replaced by another consultancy agreement which was executed between the parties on the 1^st of August 2013.

Prior to the expiry of the term of the agreement dated 1^st August 2013, the Defendant abandoned his consultancy contract with the Plaintiff and left Fiji. The Plaintiff was not informed of the sudden reason for the Defendant to leave Fiji.

On or about the 13 of November 2015, the Defendant issued or caused a notice of demand to be issued for reimbursement of costs in the sum of $89,818.59.

The Plaintiff by its letters dated 23 November 2015 and 23 December 2015 disputed liability and denied owing the Plaintiff any monies under the consultancy agreement.

The Defendant has claimed a sum of $75,396.30 for transportation costs, however the consultancy contract dated 1 August 2013 specifically as per clause 1.7 states that under the said consultancy agreement, the Defendant was required to conduct all tasks and/or duties at his own cost, which included transportation costs.

Under the consultancy contract, the Defendant was fairly remunerated for his consultancy services which is specifically addressed as “fees and expenses” under clause 3.1.1. Beyond the agreed fees, the Defendant was not entitled to any further remuneration wrongfully claimed by him.

The Defendant could only claim reimbursement of cost or “out of pocket” expenses if he carried out any extra tasks or additional tasks not specified in the consultancy agreement. To that extent the Defendant did not claim that he had performed any additional or extra tasks which entitled to be reimbursed for transportation cost.

The Defendant’s claim for default interest is unsubstantiated as the Plaintiff has not defaulted in any payment of fees.

The Defendant also claimed “unjustified deduction” being a sum of $5,213.09 for which liability is denied by the Plaintiff Company on the basis that the Defendant abandoned his contract and left for England without informing the Plaintiff.

During his absence and whilst the consultancy contract was on foot, the Plaintiff was not provided with critical safety reports and plans in respect of various construction projects performed for the Government of Fiji.

The consultancy contract specifically entitled the Plaintiff to make deductions from fees owed to the Defendant, in the event the Defendant defaulted under the contract, in particular, there were specified penalties.

On the 27^th of October 2016 in a civil magistrate’s court action no. 47 of 2016, the Defendant obtained a judgment for a sum of $51,000-00 after normal proof against the Plaintiff Company.

The Plaintiff has by its Solicitors in writing on the 9^th of January 2017 has advised the Defendant and/or his Solicitors that there is a substantial dispute as to debt and the Plaintiff has filed appropriate application to set aside the Judgment dated 29 November 2016.

In the premises, it is improper and an abuse of process for the Defendant to proceed with the winding up of the Plaintiff Company.

2. Wherefore The Plaintiff Claims:
   
   1. A Declaratory Order that the Plaintiff is not liable to the Defendant for any monies as claimed by the Defendant.
   2. .
      
   3. Affidavit In Support of Wang Gang
      

Winding Up Notice

On the 16^th of December, 2016, we received a winding up notice dated 15 December 2016 from the Defendant related to a court action which had been instituted by the Defendant against the Plaintiff Company (Magistrate Court Action No. 47 of 2016 wherein a Judgment for a sum of $51,000.00 was entered.

Ms Antonio that she completely overlooked taking any steps to respond to the claim filed by the Defendant, as a result of which, the judgment was entered due to lack of response / participation.

Our Company had exchanged several correspondences with the Defendant’s Solicitors in response to the demand for payment reimbursement of costs that was issued on 13^th November 2015. Copies of the said letters dated 13^th November 2015, 20^th November 2015, 23^rd November 2015, 23^rd December 2015 and 23^rd December 2015 are annexed.

We disputed liability for the sum claimed and promptly responded to their demand letter of 13^th November 2015.

If the Management was made aware of the legal action by Ms Antonio, we would have defended the said proceedings to protect the Company’s interest.

4. Prejudice Suffered By the Plaintiff if Injunction Not Granted
   1. That the Defendant Company was not aware of the Magistrate Court Action filed by the Defendant until winding up notice was served.
   2. The Defendant Company substantially disputed the Defendant’s claim and requested if Defendant would agree to setting aside of the Judgment.
   3. Requested the Defendant and/or his Solicitors to hold the winding up proceedings in light of the debt being disputed and pending seeling aside application.

A copy of a letter dated 9^th January 2017.

The Plaintiff is a substantial company operating in Fiji and currently is engaged in numerous construction projects for the Government of Fiji and at present it has undertaken the following projects:-

1. Water pipeline upgrades for the Central and Western Divisions under a contract with Water Authority of Fiji (contract no. WAF 14/12/19/PROD/PNP). The project is valued at US$40,966,468.52.
2. Construction of a four lane highway and road upgrade from Nakasi to Davuilevu under a contract with Fiji Roads Authority (contract no. FRA 14/54 (construction of S3 – 2B). The project is valued at FJ$36,511,832.30.

The Plaintiff currently employs more than 245 workers in its operations in Fiji.

If the Defendant and/or their Solicitors are not restrained by injunctive orders, the Plaintiff Company’s operations in Fiji and all its projects will be seriously jeopardized.

The Plaintiff will also suffer financial ruin, as it currently has a debt exposure of more than $5,000.00 with Australia and New Zealand Banking Group Limited.

The Plaintiff risks losing the contract awards, if the winding up petition is presented and advertised.

5. Plaintiff Is A Substantial Company

It holds assets, comprised of property, plant and equipment which were valued at $23,160,709.00 year ending 2014 and in accordance with its last financial statement, it derived a net operating profit before tax of $2,912,738.00 year ending 2014. I annex hereto marked “WG – 19.”

And the Plaintiff Company gives its undertaking as to damages.

6. Orders
   

(a) The plaintiff’s claim
(b) The plaintiff shall

A.L.B.Brito-Mutunayagam

Judge
April, 2017