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Local company to pay costs

Frederica Elbourne
Wednesday, January 16, 2013

The High Court in Suva has discharged arrest orders against two ships and ordered local shipping company Transam (Fiji) Limited to pay legal costs totaling $3000 to a New Zealand company and to the two ships.

Transam had initially obtained an ex parte arrest order on December 7, 2012 against the ships "MV Reef Samoa" and "MV Reef Express".

The order was issued without hearing the other parties because of urgency.

Transam claimed the two ships were owned by Reef Shipping Limited of NZ, which was in receivership, and should be arrested and sold to pay a debt of more than $1.5 million owed by the NZ company for goods and services provided to the ships.

After a full hearing 13 December 2012 at which the NZ company and the ships were represented, Justice Chandrasiri Kotigalage found that , Transam Fiji Ltd had not met legal requirements for arresting the ships and had failed to prove its case for the continuation of the arrest orders.

Justice Kotigalage said in his order the affidavit filed by Transam Fiji Ltd for the arrest of the vessels were misconceived because Transam Fiji Ltd failed to meet the requirements under the court rules.

"The plaintiff (Transam Fiji Ltd) failed to fulfil the requirements under Supreme Court Act 1981 of UK, as such plaintiff did not establish its case to exercise Admiralty Jurisdiction of this court to continue with the order for arrest," he said.

He also said that the evidence did not prove that Transam (Fiji) Ltd had actually supplied any goods or services to the ships and did not establish that the ships were owned by Reef Shipping Ltd.

"I conclude plaintiff (Transam Fiji Ltd) failed to establish the beneficial ownership over the vessel Reef Express and Reef Samoa," Justice Kotigalage said.-

Transam Fiji Ltd submitted a claim of $1.5 million saying Reef Shipping was under receivership and that Transam should be protected as a local company. Justice Kotigalage said,"However the court cannot consider the cases of commercial nature on sympathetic grounds. Court should act according to the accepted rules and norms," he said.

In the order, the judge rejected Transam's submission that affidavits of the defendants should not be accepted because they were sworn by their solicitors' law clerks.

Justice Kotigalage said the affidavits stated the clerks had been authorised by Reef Shipping and by NZ lawyers acting for the two ships.

He said that there was no provision under Order 41 Rule 5—as cited by the plaintiff that law clerks cannot swear affidavits.

He said that earlier cases referred to by Transam's lawyer were decided on different facts and grounds and could not be applied to this case.