IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No.  HBC 44 of 2016
XX HBC 162 of 2016

BETWEEN	:	SUHUA LIU of 148 Waimanu, Suva, Fiji, Female, Chinese ID: 510702195704169028, Company Chairperson.

FIRST PLAINTIFF

AND	:	LINLIN CHEN of 148 Waimanu, Suva, Fiji, Female, Chinese
ID: 350204198210183021, Manager.

SECOND PLAINTIFF

AND	:	YONG CHENN of 148 Waimanu, Suva, Fiji, Female, Chinese
ID: 510702195408269016, General Manager.

THIRD PLAINTIFF

AND	:	AIDONG ZHANG of 48 Cumming Street, Suva, Fiji, Company Director.

FIRST DEFENDANT

AND	:	OUTSTANDING (FIJI) LIMITED a duly incorporated company having its registered office situated at 48 Cumming Street, Suva, Fiji.

SECOND DEFENDANT

AND	:	THE NEW HOME TRADING COMPANY LIMITED a duly incorporated company having its registered office situated at 48 Cumming Street, Suva, Fiji.

THIRD DEFENDANT

BEFORE	       :	Master Vishwa Datt Sharma

COUNSEL		   :	Mr. Nilesh Prasad    - for the Plaintiff
Mr. Nandan           - for the Defendants

DATE OF JUDGMENT: 30th May, 2017
JUDGMENT
[Defendant’s Application for Security for Costs pursuant to Order 23 of the
High Court Rules, 1988 and the Inherent Jurisdiction of the Court]

A.	Introduction

1.	On 07th July, 2016, the Defendants filed a Summons for Security for Costs against the Plaintiffs and sought for the following Orders-

(a)	That the Plaintiffs do within 14 days give security for the Defendant’s costs to the satisfaction of this Court;
(b)	That in default of such security the action herein be struck out; 
(c)	That in the meantime all proceedings herein other than the proceedings relating to giving such security be stayed;
(d)	That the Costs of this application be awarded in favour of the Defendants in any event; and
(e)	Any other such orders that the Court deem just and appropriate.

2.	This application is made pursuant to Order 23 of the High Court Rules, 1988 and the Inherent Jurisdiction of this Court.

3.	The Defendants rely on the Affidavit in Support deposed by Aidong Zhang.

4.	The Plaintiff relies on the Affidavit in Answer deposed by Jianhua Su.

B.	Brief Background

5.	The Defendants contention is that the Plaintiffs do not personally own any real property in Fiji and neither do they derive any income in Fiji.  Whereas the Plaintiff’s say that they own 80% majority share in Bairain Group (Fiji) limited a duly incorporated Company having its registered office at 148 Wainimanu Road, Suva.

6.	Bairain is the registered proprietor of the following two substantial commercial properties in Fiji-

(i)	Certificate of Title No. 4411 being Lot 1 at 148 Waimanu Road, Suva which was purchased on 04th December, 2014 for a sum of FJ $3,300,000; and
(ii)	Certificate of Title No. 15188 being Lot 1 on Deposit Plan No. 3951 situated at Pacific Harbour purchased on 30th July, 2015 for FJ$ 2,600,000.
(iii)	The funds to purchase the Waimanu Road property were remitted jointly by the Plaintiffs from China.
(iv)	The current claim is in respect of unaccounted monies remitted by the Plaintiffs to the Defendants for the purchase of the Waimanu Road property owned by Bairain.
(v)	By virtue of the fact that the Plaintiffs own 80% shareholding in Bairain, the Plaintiffs are the beneficial owners of the properties by virtue of advancing monies to purchase them.

C.	The Law on Security for Costs
7.	 Security for costs of action, etc. (O.23, r.1)

(1) Where, on the application of a defendant to an action or other proceeding in the High Court, it appears to the Court-
(a)	that the plaintiff is ordinarily resident out of the jurisdiction, or
(b)	…………………………………………………………………………
(c)	………………………………………………………………………….
(d)     	…………………………………………………………………………
Then if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the plaintiff to give such security for the defendant’s costs of the action or other proceeding as it thinks just.
8.	The Rule states that “having regard to all circumstances of the case, the Court think, it just to do so, it may order” confers upon the Court a discretion whether or not to order security for costs.

D.	Analysis and Determination

9.	The issue for this court to determine is ‘Whether the Defendant is entitled to Security for Costs’ as sought for in their application?

10.	The Defendants contention all along is that all the Plaintiffs in this case are Chinese and further reside outside of Fiji, despite the address stated by them in this action.

11.	Security for Costs is not ordered because a Plaintiff is ordinarily resident outside of Fiji, the Court must consider other facts incidental to the proceedings.

12.	Reference is made to the case of Inspired Destinations (Inc) Ltd v Bayleys Real Estate (Fiji) Ltd [2015] FJHC 812; HBC180.2013 (20 October, 2015) wherein the issue of security for costs was discussed and observed as follows:

“That the Plaintiff is a non-resident and has no assets in Fiji is a circumstance of great weight favouring a security order. I am of course mindful to the fact that the making of an Order for security for costs is discretionary and the Courts no longer adapt a rigid rule. [see, M. J. Raine, “In locals we trust – Foreigners pay cash; rethinking security for costs against Foreign Residents (2012) 1 JCIVP 210 at 214P)].’

‘Returning to the instant case, although the grounds for security for costs have been proved by the Defendants, I am not bound to make an order.’

13.	In the High Court of Fiji in Furuuchi Susian Company Limited v Hiroshi Tokuhisa and Others Civil Action No.95 of 2009, Justice Byrne ordered Security for Costs against a Plaintiff company incorporated and operating in Japan as the Plaintiff was ordinarily resident out of the jurisdiction. In reaching this decision, Justice Byrne relied on what Sir Nicolas Brown Wilkinson V.C said in Porzelack KG v Porzelack (UK) Limited 1987 1 All ER 1074 at p.1076

“That the purpose of ordering security for costs against a plaintiff ordinarily resident outside the jurisdiction is to ensure that a successful defendant will have a fund available within the jurisdiction of the court against which it can enforce a judgment for costs. It is not, in the ordinary case, in any sense designed to provide a defendant with security for costs against a Plaintiff who lacks funds. The risk of defending a case brought by a penurious Plaintiff is as applicable to Plaintiffs resident within the jurisdiction”.

14.	The Defendant will only be entitled to costs if the Plaintiff’s claim is ultimately dismissed with costs. The Defendant is not entitled to security for costs as of right. If the Court feels that the Plaintiff has a good claim with good prospects for success, it may not be inclined to make any order for security for costs. 

15.	In Ali v Chandra [2014] FJHC 710; HBA14.2013 (30 September 2014), Judge Kumar also saw fit to highlight a portion from Porzelack K.G v. Porzelack (supra) and further enunciated as follows;:

3.26 The threshold for exercise of discretion is that Respondent (Plaintiff) “does not ordinarily reside in Fiji”.

3.27 The term “resident” or “ordinarily resident” cannot be given a precise definition.

3.28 Whether a person is resident or ordinarily resident will depend on various factors such as person’s address, type of employment, duration of stay at a particular address, ownership of real properties and so on.

3.29 Once the Court determines that the Respondent (Plaintiff) “does not reside” or “does not ordinarily reside” in the country then Court has to exercise its discretion as to whether to make an Order for security for costs or not.

3.30 Of course in exercising discretion whether to make an Order for security costs, Court needs to take various factors into account. Some of the factors which Court may take into account are available funds within jurisdiction properties owned by the Respondent within jurisdiction and their values;  (Sharma v. Registrar of Titles) chances of Plaintiff’s claim succeeding (Para 25.13.1 White Book. Vol 1, 2011).

3.31 It must be made clear that the factors listed in preceding paragraph are not exhaustive and Court is free in exercise of its discretion to take into consideration any relevant factors.

16.	As reported in the White Book (1997) at page 407 (23/1-3/2)  on Security for Costs it states that:

“Discretionarily power to order security for costs (rr1 - 3). The main and most important change effected by this Order concerns the nature of the discretion of the Court on whether to order security for costs ‘if, having regard to all the circumstances of the case, the Court thinks it just to do so’ These words have the effect of conferring upon the Court a real discretion, and indeed the Court is bound, by virtue thereof to consider the circumstances of each case, and in light thereof to determine whether and to what extent or for what amount a plaintiff (or the defendant as the case may be) may be ordered to provide security for costs. It is no longer, for example, and inflexible or rigid rule that Plaintiff resident abroad should provide security for costs. In particular, the former Order 65 r 6B which had provided that the power to require a Plaintiff resident abroad, suing on a judgment or Order or on a bill of exchange or other negotiable instrument, to give security for cost was to be in the discretion of the Court, has been preserved and extended to all cases by r.1 (1).

17.	Lord Denning as reported in Sir Lidsy Parkinson & Co Ltd v Farripian Ltd [1973] 2 A.E.R. 273 at 285-286.

…..’If there is a reason to believe that the company cannot pay the costs, then security may be ordered, but not must be ordered. The court has a discretion which it will exercise. The court has a discretion which it will exercise. The court has a discretion which it will exercise considering all the circumstances of the particular case. ………………..The court might also consider whether the application for security was being used oppressively-so as to trey and stifle a genuine claim.”

18.	An exception applies if it is established that a foreign Plaintiff has substantial assets within the Jurisdiction which are available to satisfy a costs order. In that exceptional case, security for costs will not be ordered.

19.	In Babu Bhai Patel v Moanohan Aluminium Glass (Fiji) Ltd, Civil Appeal 19/1997, an appeal from the Magistrates Court, Chief Justice Fatiaki held to the effect that to come within the exception a non- resident Plaintiff has the onus to prove that he has suitable property within Fiji.

 ‘Once it is established that the Plaintiff was not ordinarily resident in Fiji, as in this case they are resident in Australia, the ‘onus’ then shifted to the Plaintiffs to satisfy Court that they have property within the Jurisdiction which can be made the subject to the process of this court. However, even if the Plaintiffs have no assets in Fiji, they may still avoid having to pay security for costs if they are able to convince the court pursuant to Order 23 of the High Court Rules, 1988, that having regards to all the circumstances of the case, it would not be just and fair to order security for costs or that it would be oppressive to do so in the circumstances.’ 

20.	In the current case before this Court, the Plaintiffshave argued that in terms of the Plaintiff’s ‘assets’ in Fiji, the Plaintiffs have 80% majority share in Bairain Group (Fiji) limited.  Bairain is the registered proprietor of two (2) substantial commercial properties in Fiji.By virtue of the fact that the Plaintiffs own 80% shareholding in Bairain, the Plaintiffs are the beneficial owners of the properties by virtue of advancing monies to purchase them.

21.	Ownership and shareholder are literally the same thing. The term owner is used in the sense of proprietorship where proprietor owns the whole of the business. The term shareholderis used in corporate worlds where share is owned by an individual.

Further, there is no documentary evidence in terms of the passports and other travel documents to establish the Plaintiffs status in Fiji.

22.	The Plaintiffs filed a Writ of Summons and the Statement of Claim on 24th February, 2016. The Defendants failed to file and serve their Statement of Defence and Default Judgment was accordingly entered.

23.	On application to set aside the Default Judgment, the Plaintiff’s consented to the setting aside and hence the Default Judgment was set aside. 

24.	The Defendants filed their Statement of Defence thereafter on 31st May, 2016.

25.	Reply to Defence was filed as per the requirements of the High Court Rules on          07th June, 2016.

26.	The Defendants contention is that the Agreement No. 1 was between the 2nd Defendant and Supreme Fuel Limited. The Plaintiffs were offered the opportunity to acquire the Property for $5,500,000. The Plaintiffs contribution was to be 80% of $5,500,000 which amounted to $4,400,000. That upon payment by the Plaintiffs of the sum of $4,400,000 the 2nd Defendant nominated Bairain to be the Purchaser under Agreement No. 1.  The 1st Defendant has not defrauded the Plaintiffs. Further, no monies have been paid either to the 1st Defendant or 3rd Defendant. 

27.	Prima facie, bearing in mind the Defendants contention as based hereinabove together with their Defence, and the Statement of Claim of the Plaintiffs as set out within the Statement of Claim, upon a careful consideration, the Plaintiffs may have an arguable case with good prospects of success. However, this court at this stage of the proceedings cannot delve itself into the merits of the parties’ case, since that would be determined upon a proper hearing accordingly.

28.	In ‘Kadavu Shipping Company Ltd v Dominion Insurance Ltd’ 2009 HBC 508 Master Udit said in relation to the ‘Strength or bona fides of a claim’

‘Under this criterion, the respondent is to show that it has a prima facie regular claim, which disclosed a reasonable cause of action. It is not the court’s duty to divulge into a detailed analysis of the merits of the case unless it can be clearly demonstrated that there is a relatively high degree of success or failure. Once it is established, the Court is to proceed on the basis that the claim is bona fide’.

29.	In ‘Allan v Hill View Limited [2003] HBC 366, Connors J said;

‘…...another matter of importance for the Court is exercising its discretion is the Plaintiff’s prospect of success in the action and of course as in any such situation that does not require the Court at this point in time to make any detailed determination of the likelihood of success but merely to do so based on the pleadings as they appear before the court’.

30.	The balance of convenience lies in the Court accepting that the Plaintiff has a regular bona-fide claim which has a chance of success without making any detailed determination as to the likelihood of success.

31.	The Defendant’s main thrust is that since the Plaintiffs are resident out of this Jurisdiction, they should be required to pay security for costs. On the other hand, the Defendant will only be entitled to costs if the Plaintiff’s claim is dismissed. 

32.	The Plaintiffs have initiated this proceeding and they have the prosecution of the case to ensure they bring it to the conclusion on the balance of probabilities. And it is for the Defendants to counter the claim in terms of their Defence. However, it is obvious in the circumstances that expenses in terms of costs will be incurred and therefore the parties to the proceedings must be ready to cater for the costs. In this case the Defendants have sought for security for costs against the Plaintiffs.

Quantum of Costs

33.	No formula for ascertaining the quantum of the security for costs was furnished to court by any of the Counsels. However, a very helpful guide is provided for in Halsbury’s Law of England (4th edition) Vol. 37 para 307,which states as follows-

‘The amount of security for costs ordered to be given is in the discretion of the court, which will fix such sum as it thinks just to do so, having regards to all the circumstances of the case. It is not the practice to order security for costs on a full party and party, still less on an indemnity basis. In the case of a Plaintiff resident out of the jurisdiction the more conventional approach is to fix the sum at about two- thirds of the estimated party and party costs up the stage of the proceedings for which security is ordered, but there is no hard and fast rule.’

34.	Reference is made to the New Zealand Court of Appeal case of Mclachlan & Others v. Mel Network Limited [2002] NZCA 215 (29 August 2002) at paragraph 27 of the Judgment wherein His Lordship, Mr. Justice Gault said-

‘[27] The amount of security is not necessarily to be fixed by reference to likely costs awards: National Bank of New Zealand Ltd v Donald Export Trading Ltd [1980] 1 NZLR 97, at 103- ‘It is rather to be what the court thinks fit in all the circumstances…’

35.	For the abovementioned rational, I grant the Defendant’s application and proceed to make the following orders.

E.	Orders

(i)	Each of the Plaintiffs are hereby ordered to pay a sum of $7,500 each (A total sum of $22,500) as security for costs into the Chief Registrar’s interest bearing account within 28days.

(ii)	The Plaintiff’s Writ of Summons and the Statement of Claim will be struck out upon the non-payment of the ordered security for costs within the set time frame.

(iii)	Parties to proceed with the next appropriate cause of action in terms of the substantive claim.

(iv)	Cost of this action is summarily assessed at $500 against each of the three (3) Plaintiffs (A total of $1500) and to be paid to the Defendants within 28 days.
(v)	The case will now be scheduled for further directions accordingly.

DATED at SUVA THIS   30th DAY OF MAY     2017

							...........................................................	
							MR VISHWA DATT SHARMA
							Master of the High Court
                                                          Suva

cc.   Reddy &Nandan Lawyers, Suva
      Mitchell Keil Lawyers, Suva