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Fiji Islands - Court of Appeal Digest 1991-2000 - Practice:Civil |
FIJI COURT OF APPEAL
INDEX AND DIGEST
1991 – 2000
MICHAEL DISHINGTON SCOTT B.A. (Lond.)
Of Gray’s Inn, Judge of the High Court of Fiji
PARTIES
SUBJECT
DESCRIPTION
FCA
NO.
PAGE
NO.
Abdul Kadeer Kuddus Hussein v. Checkboard Furnishings
PRACTICE: CIVIL
Service of summons- not sent to address for service of defendant- no service- subsequent order striking out proceedings a nullity. RHC O 65 r 5- appeal allowed.
60/98
99/461
Amalgamated Transport Ltd v Narbada Ben
PRACTICE: CIVIL
Appeal against refusal to set aside judgement in default of Defence-all relevant factors taken into account-appeal dismissed.
62/90
92/323
Antech International Ltd v Harish Singh
PRACTICE: CIVIL
Appeal against refusal to grant interlocutory injunction allowed subject to conditions.
29/96
96/341
Anthony Stephens v A.G.
PRACTICE: CIVIL
Inordinate delays - order that appeal be reinstated in the hearing list.
64/92
96/126
Attorney-General v. Pacoil Fiji Ltd
PRACTICE: CIVIL
Stay order set aside- order for payment into Court- consequential directions and observations on the effect of Crown (State) Proceedings Act, Section 20.
14/99
99/304
Auto Mart Ltd v Catherine Verma
PRACTICE: CIVIL
Interlocutory mandatory injunction- grant justified subject to conditions - appeal allowed in part.
10/94
94/509
Bal Krishna Pillay v. CMLA Society Ltd
PRACTICE: CIVIL
NTR
40/98
00/157
Brij Ram v Michael Ban Deo
PRACTICE: CIVIL
Probate action must be commenced by writ - failure to comply merely an irregularity- need for proceedings to be regularised RHC 0.76 - Succession Probate and Administration Act (Cap.60).
49/94
94/552
Bubble Up Investments Ltd v. National MBF Finance (Fiji) Ltd
PRACTICE: CIVIL
Joinder of parties- applicable principles.
21/98
99/247
Burns Philp (SS) Co. Ltd v Lees Trading Co. Ltd
PRACTICE: CIVIL
Appeal against refusal of High Court to allow question of illegality to be raised after prior determination of the issue of liability refused.
3/93
93/196
Cecelia Chute & Anr v. Vitilevu International Holdings Ltd & Anr
PRACTICE: CIVIL
Appeal against interlocutory injunctions dismissed on the facts.
28/89
92/84
Chandra Lachmaiya Naidu v Carpenters Fiji Ltd
PRACTICE: CIVIL
Guarantee-appeal against summary judgement in High Court-proper application of RHC 0.14 discussed-no affidavit filed by defendant but Statement of Defence sufficient mode of Showing cause-appeal allowed.
48/91
92/425
Chandra Sami v. Parwati Narayan
PRACTICE: CIVIL
Application for extension of time to file appeal out of time granted.
39/97
97/308
Deo Karan Singh v Surya Deo Sharma
PRACTICE: CIVIL
Summary proceedings for possession - order made in absence of defence - RHC 0.35 r.2 does not permit a judgment on the merits to be set aside.
12/90
94/565
Dhiraj Lal Hemraj v Vinod Kumar Ramanlal Patel
PRACTICE: CIVIL
Application for Summary Judgment - RHC 0.14- decision should clearly express intended future course of the Action- options available to the Court- extent of right of appeal.
19/93
94/105
Dominion Insurance Ltd v Westpac Banking Corporation
PRACTICE: CIVIL
Loss of vessel- marine insurance- whether policy current- effect of non payment of premium- need for unambiguity in renewal certificate- whether award of costs on common fund basis justified- appeal partly allowed.
5/97
98/506
FEA v. Miriama Ganilau
PRACTICE: CIVIL
Limitation of actions- fatal accident- principles governing extending limitation period- whether a defence of limitation must be pleaded - appeal by first appellant allowed.
50/97
99/192
Fiji Medical Assn v. Ramon Fermin Angco
PRACTICE: CIVIL
NTR
41/97
97/451
Geelong Holdings Ltd v Maxwell Hitchins
PRACTICE: CIVIL
Security for costs-discovery-no rule that the former must be dealt with before the latter- power of Chief Registrar to deal with application for security for costs-in circumstances proper for a judge to deal with the application-no order for production of documents can be made under RHC 0.24 R3.
57/90
92/152
Girdhar Lal Raniga v Merchant Bank of Fiji
PRACTICE: CIVIL
Mareva Injunction - principles governing - Writ ne exeat civitate not harsh unreasonable or unconstitutional.
31/93
94/339
Harifam Ltd v. Fong Holdings Ltd
PRACTICE: CIVIL
Application for stay pending appeal refused- appeal against interlocutory orders will rarely succeed unless orders plainly wrong.
57/96
97/115
Haroon Ali Shah v. Marcella Bugeja
PRACTICE: CIVIL
Stay of order for payment made by the High Court granted on terms.
28/97
97/257
Ishu Ratnam v. Radhika Prasad
PRACTICE: CIVIL
Application for leave to appeal dismissed on the merits.
40/97
97/425
Jamnadas Sports (Fiji) Ltd v Stinson Pearce Ltd
PRACTICE: CIVIL
Appeal from summary judgment - power of the High Court under RHC 0.14 - promissory and proprietary estoppel - matter remitted to the High Court for hearing.
40/92
94/246
Kaliyan v Harpali
PRACTICE: CIVIL
Order of High Court that Originating Summons stand as pleading and that matter proceed to trial on oral evidence upheld in view of substantial issues of facts between the parties.
37/89
92/178
Kerry Francis Thomas v. Turtle Airways Ltd
PRACTICE: CIVIL
See 93/204A
50/92
93/646
K.R. Latchan Bros v Transport Control Board
PRACTICE: CIVIL
Interlocutory orders of the High Court will be upheld unless plainly wrong - leave to appeal refused.
12/94
94/306
Loga Nadan Pillay v. Subhash Chand
PRACTICE: CIVIL
NTR
64/96
97/303
Lui Fung Chan Lum v. The Commissioner of Estate & Gift Duties
PRACTICE: CIVIL
Estate and Gift Duties Act Cap 203- the procedure for stating a case set out in Part V of the Act is subject to Rule 29(4) of the Court of Appeal Rules.
28/92
93/585
Mariamma v Log Nadan
PRACTICE: CIVIL
Request for adjournment in Magistrate's Court refused-Magistrate failed to consider material in support of application-wrongful exercise of discretion-order of High Court referring matter back to Magistrate's Court upheld.
14/90
92/165
Merit Timber Products Ltd v Native Land Trust Board
PRACTICE: CIVIL
Appeal against dismissal for want of prosecution - consideration of principles governing - appeal dismissed.
52/93
94/609
Minister for Information, Broadcasting, Television & Telecommunication v Fiji Television Ltd
PRACTICE: CIVIL
Application for leave to appeal against order for cross examination dismissed.
24/98
98/224
Mohammed Yasin v. Basic Industries Ltd
PRACTICE: CIVIL
Committal proceedings- application for leave to appeal against order for payment on pain of committal dismissed- observations on need to comply with orders of the Court.
21/00
00/252
Mohammed Hasim v Naseeran Nabi
PRACTICE: CIVIL
Appeal against refusal of High Court to set aside judgment in default of Defence-no steps taken by defendant-appeal dismissed.
38/91
92/392
Mohammed Yusuf v. Bank of Baroda
PRACTICE: CIVIL
Guarantee-no power under RHC 0.19 to set aside Judgement obtained under 0.14 -proceedings in a mess -appeal allowed.
8/93
93/505
Mustaq Ali v Bank of Baroda
PRACTICE: CIVIL
Summary judgment- guarantee- whether a set--off or counterclaim amounts to a defence to application for summary judgment- RHC O 14 r (3) – onus on defendant to establish why judgment should not be given.
5/93
98/77
National MBF Finance (Fiji) Ltd v. Nemani Buli
PRACTICE: CIVIL
Resolution of issues of fact required- successful appeal against High Court’s order striking out the Defence.
57/98
00/260
Nivis Motors v Yanuca Tours
PRACTICE: CIVIL
NTR
71/91
95/97
NLTB v. Dhan Kaur
PRACTICE: CIVIL
Flagrant disregard for the Rules – inordinate and inexcusable delays and defaults- leave to appeal out of time refused.
38/97
97/553
NLTB Employees Association v NLTB
PRACTICE: CIVIL
Application for stay of redundancies pending appeal- whether NLTB's redundancy process authorised- whether Public Enterprise Act 1996 relevant- application dismissed.
28/98
98/302
Owen Clive Potter v. Turtle Airways Ltd & Anr
PRACTICE: CIVIL
Appeal against dismissal of action for want of prosecution -discussion of principles and law governing -appeal allowed.
49/92
93/205
Pankaj Bamola & Anr v Moran Ali
PRACTICE: CIVIL
Successful appeal against order of High Court setting aside judgment in default of defence- principles on which discretion to set aside should be exercised-no adequate explanation for delay - no defence on the merits.
50/90
92/181
Pacific Timber Dev. Ltd v. Karim Buksh
PRACTICE: CIVIL
Application for leave to apply for security for costs out of time- Rules of Court are to be obeyed- no special features to warrant leave being granted - application dismissed.
24/97
97/565
Peter Sujendra Sundar v. Chandrika Prasad
PRACTICE: CIVIL
Leave to appeal out of time granted on terms- a party perfecting a Judgment should always serve a copy on the other parties.
22/97
97/462
Peter Sujendra Sundar v Chandrika Prasad
PRACTICE: CIVIL
Where a ground of appeal against a final judgment is that the judge erred in making an interlocutory order with the result that the trial miscarried a separate appeal against the interlocutory order is not needed- evidence on commission- desirability of taking- amendment of pleadings- principles involved- appeal allowed.
22/97
98/175
Raj Pati v. Hari Pratap
PRACTICE: CIVIL
Appeal against grant of interlocutory injunction dismissed.
53/96
97/208
Ram Nand v. Nirmala Lal
PRACTICE: CIVIL
Originating summons procedure confused with Summary Judgment procedure - appeal allowed – matter remitted for determination on the merits.
55/96
97/470
Ram Jas v Ram Jit Singh
PRACTICE: CIVIL
Appeal against dissolution of interim injunction on terms dismissed.
55/92
93/44
Ram Swamy v Padma Wati
PRACTICE: CIVIL
Application for stay pending appeal granted.
7/95
96/102
S.B. Holdings Ltd v. Credit Corporation (Fiji) Ltd
PRACTICE: CIVIL
NTR
32/99
00/93
S.B. Holdings Ltd v Mohammed Hussain
PRACTICE: CIVIL
Application for injunction pending appeal refused.
8/96
96/471
Sitiveni Rabuka v. Dreunamisimisi
PRACTICE: CIVIL
Application for extension of time dismissed - appeal dismissed.
11/97
97/314
SSC Charan v Shah & Ors
PRACTICE: CIVIL
Whether refusal of leave to apply for J.R. interlocutory or final - "application" and "order" approach compared - application refused on the facts.
29/94
95/84 95/130
Surendra Prasad v Anand Vikash
PRACTICE: CIVIL
Magistrates’ Courts Rules (Cap. 14)- application to set aside judgement - power of Magistrates to give counsel leave to withdraw - failure to file evidence of defence fatal to the application- appeal dismissed.
31/92
94/469
Suresh Charan v. National Insurance Co. Ltd
PRACTICE: CIVIL
Judgment in default of appearance- no arguable defence- no entitlement to have judgment set aside as to liability- insurance claim- not a claim for unliquidated damages- interlocutory judgment substituted with damages to be assessed- order for costs varied.
67/98
99/264
Suresh Sushil Chandra Charan v. Suva City Council
PRACTICE: CIVIL
High Court Judgment said to have been irregularly delivered- application dismissed.
58/92
93/590
Suresh Sushil Chandra Charan v Suva City Council
PRACTICE: CIVIL
Judgment delivered by Deputy Registrar in absence of Judge following Military Coup- Judgment treated as regular- RHC 0.2 r 2(1)- application for leave to appeal refused.
58/92
93/110
Suresh Sushil Chandra Charan v Housing Authority
PRACTICE: CIVIL
Striking out action for want of prosecution- principles applicable- whether inordinate and inexcusable delay- whether fair trial possible- propriety of relying on previous judgment.
15/97
98/347
Surya Deo Sharma v. Joseva Sabolalevu
PRACTICE: CIVIL
Limitation- claim for damages for personal injuries- limited scope for judicial discretion- requirements of the Limitation Act (Cap 35) explained.
43/95
99/319
Tacirua Transport v Virend Chand
PRACTICE: CIVIL
Claims for special damages and interest must be specifically pleaded - appeal against quantum for moderate injuries dismissed.
33/94
95/67
Tauz Khan v. Netani Waqanivere
PRACTICE: CIVIL
NTR
45/97
97/457
The Attorney-General v Samisoni Naisua
PRACTICE: CIVIL
Action in the Magistrates’ Court- failure by defendant to file defence- claims for unliquidated damages must be proved by evidence- whether deemed admissions may be recognised- inferences which may be drawn from failure of defendant to appear- appeal allowed.
55/97
98/246
The National Insurance Company Fiji Ltd v Premier Apparels Ltd
PRACTICE: CIVIL
Application for leave to appeal and for stay pending appeal- applications dismissed.
14/98
98/139
The New India Assurance Co. Ltd v. Rajesh Singh
PRACTICE: CIVIL
Striking out proceedings for want of prosecution- principles applicable- not established that fair trial not possible or serious prejudice caused to appellant- delay in delivery of ruling by the High Court deprecated- appeal dismissed.
31/96
99/496
Tevita Fa & Ass. v Tradewinds Marine Ltd & Anr
PRACTICE: CIVIL
Application for leave to appeal out of time - no explanation for failure to file within time - no reasonable prospect of success on the appeal - application dismissed.
40/94
94/558
Upperdeck Investment Ltd v Sulochana Anjali Chand
PRACTICE: CIVIL
NTR
65/97
98/286
Vankat Sami Naidu v D. Chand Bros.
PRACTICE: CIVIL
Summary Judgment-subsequent application for leave to defend dismissed-bare allegation of fraud unsupported by evidence-no genuine issue to be tried-appeal dismissed.
9/89
92/78
Vatuwaqa Transport Ltd v Transport Control Board
PRACTICE: CIVIL
NTR
27/94
94/412
Victor Janson Ho v. Kenneth Michael Ho
PRACTICE: CIVIL
Wills - law on testamentary capacity- onus of proof - mere antipathy contrasted with disorder of the mind- undue influence - record of proceedings - status of Judges notes.
6/96
97/214
Vijay Prasad v Daya Ram
PRACTICE: CIVIL
Judgment in default of Defence set aside on condition that amount claimed paid into court- appeal against condition dismissed.
61/90
92/244
Vinod Kumar Ramanlal Patel v First Pacific Mortgage Ltd
PRACTICE: CIVIL
Registration of foreign Judgement - no rule that supporting affidavit may not be sworn until after summons or motion filed - Exchange Control Act (Cap.211) - whether relevant - whether registration contrary to public policy - appeal dismissed.
21/92
93/372
Wearsmart Textiles Ltd v General Machinery Hire Ltd
PRACTICE: CIVIL
Claim for unliquidated damages- default judgment with damages to be assessed- whether correctly set aside- whether convention between solicitors that notice given before entry of default judgment amounts to a rule of law- importance of defence on the merits- appeal allowed.
30/97
98/267
Westpac Banking Corp. Ltd v. Adi Mahesh Prasad
PRACTICE: CIVIL
It is generally inappropriate to apply for an injunction to restrain a mortgagee sale ex parte but if granted, the injunction proceedings should be adjourned for no more than “a day or so” for continuation inter partes – discussion of applicable principles.
27/97
99/1
Westpac Banking Corporation v Fiji Forest Sawmilling Co. Ltd
PRACTICE: CIVIL
Application for stay pending appeal refused.
45/96
96/357
© Michael Dishington Scott 2000
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