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Bluewater Real Estate (Fiji) Ltd v Rao Zhi Jin [2021] FJHC 404; HBC350.2020 (30 December 2021)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. HBC 350 of 2020

IN THE MATTER of the High Court rules 1988, Order 17

AND

IN THE MATTER of an application Bluewater Real Estate (Fiji) Limited a limited

liability company having its registered office at Suva t/a HARCOURTS

(“Harcourts”) for interpleader relief against the claims of Rao Zhi Jin

(of the one part) and Hkwan Duang (of the other part) for

$2,803,611.16 held by Harcourts being funds earlier remitted to

it by the said Rao Zhi Jin to be held in trust for him.

BETWEEN

BLUEWATER REAL ESTATE (FIJI) LIMITED a limited liability company having

its registered office at Suva, Fiji t/a HARCOURTS.

PLAINTIFF

AND

RAO ZHI JIN usually of Hong Kong but otherwise exact whereabouts and

occupation not known to the plaintiff.

FIRST DEFENDANT

AND

HKWAN DUANG address and occupation unknown to the plaintiff.

SECOND DEFENDANT

Counsel : Mr. V. Singh for the Plaintiff

Mr. S.F. Koya and Ms. R. Delhumeau for the 1^st Defendant.

Date of Hearing : 17^th December 2021

Date of Judgment : 30^th December 2021

JUDGMENT

[1] The plaintiff company filed this interpleader originating summons pursuant to Order 17 and Order 65 rule 4 of the High Court Rules 1988, seeking the following orders:

1. That the First Defendant and the Second Defendant appear and state the nature and particulars of their respective claims to the money in dispute and maintain or relinquish the same and abide by such order as may be made hereon.
2. That the First Defendant and the Second Defendant declare to this Honourable Court particulars of any claimants who may have made any claim against the said monies.

100. That the Plaintiff be granted leave to effect service of the originating summons issued herein and all other documents in this action on the First Defendant by serving a copy of the same on Siddiq Koya Lawyers.

4. That the Plaintiff be granted leave to effect service of the originating summons issued herein and all other documents in this action on the Second Defendant by emailing the same to Peter Loupos at peterl@cwitrading.com.au.
5. That the costs incurred by the Plaintiff in this proceeding be paid out of the money in dispute on costs based on an indemnity basis.

[2] The plaintiff instituted these proceedings as an interpleader and the court has to decide as to which defendant is entitled to the money that the plaintiff was holding in trust and later paid into court.

[3] In this matter the Attorney General filed summons for joinder on the basis that this is a suspicious transaction. However, on 01^st November 2021 the Attorney General withdrew the summons for joinder and the application for joinder was accordingly struck out.

[4] In or about October 2018 Zdenak and Paul Cook engaged plaintiff to sell their property comprised in Certificate of Title No. 38830 being Lots 18 and 19 on the Deposited Plan 9047 and located at marina point in Denarau Island. One Peter Loupos representing the 2^nd defendant informed the plaintiff that 2^nd defendant was an interested buyer and offered to buy the property for $10.5 million.

[5] The 1^st defendant in his affidavit in reply states on 16^th January 2020 he transferred $2,803,611.16 from his bank, Bank of Communications Company Limited, Hong Kong Branch and in support of that he has attached the Customer Advice (A) dated 16^th January 2020 and the receipt (B) issued by the plaintiff on 17^th January 2020 for said amount. There is sufficient evidence to establish that this money was paid by the 1^st plaintiff.

[6] On 07^th September 2020 Peter Loupos sent an email to the plaintiff requesting the amount deposited by the 1^st defendant be released to the account of Poulos Lawyers Pty Ltd. It appears from the said email that the Peter Poulos’s request for transfer of money is based on the sale and purchase agreement.

[7] If the 2^nd defendant has any claim to this money it should be based on the same sale and purchase agreement between the seller, Zdenka & Paul Cook and the buyer, Hkwan Daung referred to in the above paragraph. However, this agreement has not been properly executed. It has not been signed by the parties and therefore, it is not a legally enforceable document.

[8] For these reasons the court makes the following orders.

ORDERS

(1) It is ordered that FJD 2,803,611.16 paid into court by the plaintiff be released to the First Defendant.
(2) The First defendant is ordered to pay the plaintiff FJD 3000.00 as costs of action.

Lyone Seneviratne

JUDGE

30^th December 2021