Simone Allene v. Edward Jennings

• Jurisdiction: Fiji
• Judgment Date: 06 December 2016
• Date: 06 December 2016
• Docket Number: CIVIL ACTION NO. HBC 131 of 2011
• Counsel: (Ms.) Nilema Samantha for the Plaintiff,Mr. Janendra Kaushik Sharma for the Defendants
• Court: High Court (Fiji)

IN THE HIGH COURT OF FIJI

WESTERN DIVISION

AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 131 of 2011

Between:

Simone Allene of Flat 4, Gladstone Court, Anson Road, London NW24LA, Businesswoman

Plaintiff

v.

Edward Jennings of Sheraton Fiji Resort, Nadi, Fiji

1^st Defendant

And

Seashell Business Centre Limited a limited liability company having its registered office at Sheraton Fiji Resort Island, P O Box 10522, Nadi Airport.

2^nd Defendant

Date of Hearing: 11^th August 2016

Date of Ruling: 06^th December 2016

(Ms.) Nilema Samantha for the Plaintiff

Mr. Janendra Kaushik Sharma for the Defendants

RULING

(A) INTRODUCTION

(1) The matter before me stems from the Defendants “Notice of Motion”, dated 17^th December 2015, made pursuant to Order 23 and Order 20 rule (5) of the High Court Rules, 1988 and under the inherent jurisdiction of the Court seeking the grant of the following Orders;

• 1. The Plaintiff being ordinarily resident out of jurisdiction do give such security for costs as this Honourable Court may deem fit;

• 2. That this action be stayed until the Plaintiff give the required security; alternatively

• 3. The Action be struck out if the Plaintiff does not give the required security;

• 4. Leave be granted for the Defendants to amend their Statement of Defence and Counterclaim.

• 5. That the costs of this Application be costs in the cause.

(2) The “Notice of Motion” is supported by an Affidavit sworn by “Edward Vince Jennings”, the First Defendant and the Director of the Second Defendant Company.

(3) The “Notice of Motion” is vigorously contested by the Plaintiff. The Plaintiff filed an “Affidavit in Opposition” sworn on 22^nd March 2016, opposing the application for security for costs and amendment of pleadings. The Defendants filed an “Affidavit in Reply” sworn on 09^th May 2016.

(4) The Plaintiff and the Defendants were heard on the “Notice of Motion”. They made oral submissions to Court. In addition to oral submissions, Counsel for the Plaintiff and the Defendants filed a careful and comprehensive written submission for which I am most grateful.

(B) THE FACTUAL BACKGROUND

(1) What are the circumstances that give rise to the present application? What is this case before me?

(2) To give the whole picture of the action, I can do no better than set out hereunder the averments/assertions of the pleadings.

(3) The Plaintiff in her Statement of Claim pleads inter alia;

• Para 1. The Plaintiff is a British citizen.

• 2. The 1^st defendant is a shareholder and company director of Seashell Business Centre Limited, the 2^nd defendant.

• 3. Share capital of the 2^nd defendant company is $100,000.00 divided into one dollar each. 100 shares were issued of which 70 were issued to the 1^st Defendant and 30 were issued to Yoko Jennings who is the wife of the 1^st defendant.

• 4. In or about April 2005 the 1^st defendant and the plaintiff reached an agreement for the plaintiff to take up 49% shareholding in the 2^nd defendant for a consideration of $110,000.00.

• 5. In May 2005 the 1^st defendant and the plaintiff attended the office of the defendants' accountant Nanda & Co, Accountants in Nadi and completed the Fiji Trade and Investments Board (FTIB) application form to facilitate the transfer of shares to the plaintiff.

• 6. The 1^st defendant was told by the plaintiff that she had GBP 36,000 in United Kingdom with which she will be paying for the shares. The 1^st defendant advised the plaintiff that in order for the application to be submitted to the FTIB the plaintiff had to forward the funds to Fiji.

• 7. The 1^st defendant represented to the plaintiff that the money should be paid into Yoko Jenning's personal account pending the completion of the formalities and provided the plaintiff with the bank account details of Yoko Jennings which was kept at ANZ Bank, Nadi Account No. 3804377.

• 8. On 19^th May, 2005 the plaintiff transferred the said sum of GBP 36,000 at that time totalling $110,081.74 into the above account of Yoko Jennings as instructed by the 1^st defendant.

• 9. In May 2005 the plaintiff intended to return to Thailand for a year to assist in Tsunami rehabilitation works. The defendants and Yoko Jenning were made aware of that and they agreed and advised the plaintiff that one year would allow the formalities to be completed for the transfer to be effected.

• 10. It was agreed between the plaintiff and the defendants that the transaction will be completed by May 2006. The Plaintiff left for Thailand in May 2005.

• 11. In January 2006 the 1^st defendant asked the plaintiff to return to Fiji to help run the operations of the 2^nd defendant and another of the 1^st defendant's business known as Dive Tropex since he was scheduled to leave for Iraq in March 2006. The 1^st defendant left for Iraq in March, 2006 and in April, 2006 the plaintiff returned to Fiji and started working for Dive Tropex and the 2^nd defendant.

• 12. In June, 2006 when the 1^st defendant returned from Iraq the plaintiff enquired with him regarding the transfer of the shares to her as agreed. She further enquired about the transfer in September and December 2006.

• 13. Despite numerous requests by the plaintiff the 1^st defendant in breach of the agreement failed and/or refused and/or neglected to transfer the shares to the plaintiff.

• 14. The plaintiff by a letter dated 14^th July, 2009 through her solicitors accepted the 1^st and 2^nd defendants' non performance of the agreement and/or breaches of it and the total failure of consideration as the repudiation of the agreement and demanded for a refund of the sum of $110,081.74.

• 15. The 1^st and the 2^nd defendants have refused and/or neglected to pay the plaintiff the said sum of $110,081.74 and interest as demanded.

• 16. Further and/or in the alternative the 1^st defendant and the 2^nd defendant have been unjustly enriched in that they received money from the plaintiff but failed to transfer the shares to her by May 2006 as agreed.

• 17. Further the plaintiff was promised a directors salary of $2,000.00 per month. She was initially paid $1,500.00 and it was further reduced to $1,000.00 July 2007. The plaintiff was not paid any salary for the remainder of the time she was in Fiji until her departure at the end of November, 2007.

• 18. The plaintiff as a result of the actions of the 1^st defendant and 2^nd defendant has suffered loss, damages, inconvenience and mental anguish.

(4) Wherefore, the Plaintiff claims from the Defendants;

• (a) Judgment for the sum of GBP 36,000 or its equivalent in Fijian dollars as at the date of judgment.

• (b) Interest at the rate of 13.5% on Judgment sum in (a) above from 19^th May, 2005 to date of payment.

• (c) Judgment for the sum of $12,000 being the plaintiff's loss of income.

• (d) Interest at the rate of 13.5% on $12,000.00 from August, 2007 to date of payment.

• (e) General damages for inconvenience and mental anguish.

• (f) Such further or other relief as this Honourable Court deems just.

• (g) Costs of this action.

(5) The Defendants in their Statement of Defence and Counter-Claim plead inter alia;

• 1. As to paragraphs 1, 2 and 3 of the Statement of Claim,

  The Defendants admit the same.

• 2. As to paragraph 4 of the Statement of Claim,

  The Defendants admit that a verbal agreement was made with the Plaintiff at the material time, but the same was always subject to and conditional upon obtaining the prior approval of the FTIB and/or the Reserve Bank of Fiji.

• 3. As to paragraph 5 of the Statement of Claim,

  Except as to say they attended in either April or May, 2005, the Defendants admit the same and say further that work permit application for the Plaintiff was also prepared and submitted to Department of Immigration on or about April, 2006 in connection with the said FTIB application.

• 4. As to paragraph 6, 7 and 8 of the Statement of Claim,

  The Defendants admit the same.

• 5. The Defendants say that the Plaintiff's claim herein and/or the damages prayed for by the Plaintiff are statute barred under section 4 of the Limitation Act.

• 6. As to paragraph 9 of the Statement of Claim,

  The Defendants are not aware of the same and neither admit or deny.

• 7. As to paragraph 10 of the Statement of Claim

  The Defendants deny the same and put the Plaintiff to strict proof.

• 8. As to paragraph 11 of the Statement of Claim

  The Defendants admit that the Plaintiff took the position of operations manager of the Second Defendant and of the dive shop, known as Dive Tropex, which the Second Defendant operated and managed. Some time in 2006 around the time the First Defendant was posted to Iraq.

• 9. The Defendants say that, at the material time, Dive Tropex employed the Second Defendant to handle its accounts and manage its office and operations.

• 10. As to paragraph 12 and 13 of the Statement of Claim,

  Except as to admit that the First Defendant travelled into and out of Fiji several times during 2006, the Defendants deny the same and put the Plaintiff to strict proof.

• 11. The Defendants say further that they were awaiting the necessary regulatory approvals at the material time.

• 12. The Defendants say that some time in 2007 the Plaintiff, after initiating a verbal dispute with the First Defendant, left the premises of the Second Defendant, abandoned her position as operations manager and ceased rendering services to the Second Defendant and/or Dive Tropex.

• 13. However, the Plaintiff continued to collect wages despite not working.

• 14. The Plaintiff also continued to stay free of charge in the flat and drive the vehicle provided by the Second Defendant and/or Dive Tropex.

• 15. Later the Plaintiff abandoned the said vehicle at the Korotogo roundabout with the keys inside on the day the vehicle's LTA registration expired, causing the Second Defendant unnecessary expense and loss to retrieve the same.

• 16. The Plaintiff also filed complaints about the Defendants with the FTIB.

• 17. Eventually the Plaintiff left Fiji and the Defendants did not hear anything further from her until some time in 2009.

• 18. As to paragraph 14 of...