Boat Shed Holdings Limited v. Toll Construction & Joinery (Fiji) Pte Limitd

• Jurisdiction: Fiji
• Judgment Date: 15 September 2023
• Court: High Court (Fiji)
• Date: 15 September 2023
• Counsel: Ms. S. Lodhia for the Applicant,Ms. P. Kumar for the Respondent
• Docket Number: Companies Action No. 14 of 2023

IN THE HIGH COURT OF FIJI

AT LAUTOKA

COMPANIES JURISDICTION

Companies Action No. 14 of 2023

IN THE MATTER OF BOAT SHED HOLDINGS LIMITED

AND

IN THE MATTER of an application to Set Aside a Statutory Demand pursuant to section 516 and 517 of the Companies Act 2015

BETWEEN:

Boat Shed Holdings Limited a foreign company registered in Fiji under section 367 of the Companies Act (Cap 247), having its registered name and address of its local agent being Hitesh Dip Chandra of 26 Nasoki Street, Lautoka, Fiji.

Applicant

v.

Toll Construction & Joinery (Fiji) Pte Limitd a limited liability company having its registered office at Lot 18 & 19, Nasilivata Road, Namaka Industrial, Nadi, Fiji.

Respondent

Date of Hearing: 02 May 2023

Date of Ruling: 15 September 2023

Counsel:

Ms. S. Lodhia for the Applicant

Ms. P. Kumar for the Respondent

RULING

INTRODUCTION

1. Before me are two applications. The first is a Summons to Set Aside Statutory Demand “setting aside application”) filed by Boat Shed Holdings Limited (“BSHL”) pursuant to section …. of the Companies Act 2015. The second is a Summons to Strike Out the said application (“striking out application”) filed by Toll Construction & Joinery (Fiji) Pte Limited (“TCJPL”).

2. BSHL's setting aside application was filed on 17 February 2023. TCJPL's striking out application was filed on 31 March 2023.

THE STRIKING OUT APPLICATION

3. TCJPL's striking out application is based on the following arguments:

• (i) BSHL has come to Court by way of a Summons. It should have filed an Originating Summons. Order 5 Rule 3 of the High Court Rules 1988 mandates that an application made pursuant to any Act of Parliament must be made by way of Originating Summons.

• (ii) an application to set aside statutory demand is caught under Order 5 Rule 3 because such an application is made pursuant to the Companies Act 2015.

• (iii) furthermore, BSHL, in this case, has actually filed two affidavits in support. These are (i) the affidavit of Peter Rakich who is a director of BSHL and (ii) an affidavit of Jason Wayne Gerard, an Architect.

• (iv) Order 28 of the High Court Rules 1988 only allows for three (3) affidavits. These are (i) the founding affidavit supporting the application (ii) the affidavit in opposition and (iii) the affidavit in reply. If there is a need to file an additional affidavit, then the prior leave of the Court must be sought (Order 28 Rule 2(6)).

• (v) the defect involved is not curable by amendment. This is because – if BSHL were to be allowed to amend their process and file a proper Originating Summons, that would offend section 516 of the Companies Act. Section 516 is mandatory in its stipulation that an application to set aside a statutory demand must be made within twenty-one (21) days.

THE RESPONSE TO THE STRIKING OUT APPLICATION

4. Ms. Lodhia responds as follows:

• (i) there are no provisions in the Companies Act 2015 which prescribe the form in which an application to set aside a statutory demand must be made. So, there is no defect in form in the setting aside application.

• (ii) in any event, even if this is a defect in form, the defect is not fatal. Where an alleged defect has caused no prejudice to the other party, the Court retains a discretion under Order 2 Rule 1 of the High Court Rules 1988 to overlook

COMMENTS

5. Order 2 Rule 1 of the High Court Rules provides as follows:

1.–(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

6. I do note that the two affidavits filed in support of the setting aside application were both filed on 09 March 2023 together with the said application. I understand that the Gerard affidavit was filed in order to...