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Rewa Co-op Dairy Company Ltd & Another v Sharon Julie Anne Mckenzie & Others (Case Note) [2004] JSPL 1; (2004) 8(1) Journal of South Pacific Law

REWA CO-OP DAIRY COMPANY LTD & ANOTHER V SHARON JULIE ANNE MCKENZIE & OTHERS

[2001] FJCA 11

BY: SUNITA BOIS-SINGH∗

SUMMARY OF THE FACTS

This case is an appeal from the decision of Justice Byrne of the High Court of Fiji on 30th July 1998. On 29th January 1998 there was an originating summons in the High Court at Suva, naming the company Rewa Dairy as the defendant. In this proceeding (No. 77 of 1998) the plaintiffs sought an injunction inter alia seeking to restrain the company from appointing or electing any new directors unless and until the issues raised by the originating summons had been determined. However, the High Court did not issue such an order.

The appeal is related more to the subsequent originating summons (No. 129 of 1998) taken out by the present respondents on 23rd February 1998. The summons sought a declaration that Article 77 of the Company’s Constitution was valid and an order for the reconvening and completion of the company’s 1997 Annual General Meeting (AGM). The resolutions proposed that for the purposes of the meeting, Article 77 be suspended and Article 73 modified to enable the Chair to decline any demand for a poll. It also proposed that Article 77 should be amended so that every member was entitled ‘to vote once only’ and that two additional directors be elected.[1] The 1997 AGM was held on 30th January 1998. In relation to the agenda item relating to the election of new directors, the Chair did not allow voting to proceed on the basis that the matter was sub judice before the High Court (through civil case no. 77 of 1998).

At an earlier stage in the progress of the two sets of proceedings the respondents applied for their consolidation. The appellants opposed, arguing that the actions were not between the same parties, that different solicitors were involved and that the issues were unrelated. They however, had no objection to the actions being heard consecutively by the same judge. The appellants requested that the hearing be adjourned so that the two actions could be dealt consecutively at the same hearing. Later, the action under matter no. 77 of 1998 was dropped by the plaintiffs.

The trial judge decided against the consolidation and gave his judgement without any adjournments for parties to make further submissions. He ordered that the AGM be resumed no later than 22 August 1998. The appellants hope that the Court of Appeal will turn the decision of the trial judge in relation to the consolidation of the cases and the decision of the judge to not allow further submissions.

CLAIM