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Daydream Island Ltd v Vuki [2005] FJHC 310; HBC0284.2005 (16 December 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0284 OF 2005

BETWEEN:

DAYDREAM ISLAND LIMITED
previously ENDURE INVESTMENTS LIMITED
a limited liability company having its registered office at Lautoka.
PLAINTIFF

AND:

RATU TIMOCI VUKI
of Namotomoto Village, Nadi
FIRST DEFENDANT

MICHAEL CLOWES
of Denarau, Nadi, Company Director and
SUNSAIL PTY LIMITED
of Nadi
SECOND DEFENDANT

Messrs Young & Associates for the Plaintiff
Messrs Babu Singh & Associates for the First Defendant
Messrs Patel Sharma & Associates for the Second Defendant

Date of Hearing: 28 October 2005
Dates of Submissions: 18 November, 25 November and 2 December
(Extended to 9 December) 2005
Date of Ruling:16 December 2005

INTERLOCUTORY RULING OF FINNIGAN J

The Plaintiff has filed an action by Writ (subsequently amended) seeking (inter-alia) a declaration and injunctive orders. It filed ex-parte an application for interim relief which I granted ex-parte on 7 October 2005, and on 28 October I extended the relief till further order of the Court and to cover the Second Defendant.

The application for interim relief has now been heard inter-partes by filing of affidavits on behalf of the parties and written submissions by Counsel. I am required to decide inter-partes whether the initial ex-parte relief should be discharged or remain in force.

I have before me the affidavits of William Gock filed on 30 September 2005, of Ratu Timoci Vuki filed on 20 October 2005, of Michael Clowes filed on 20 October 2005, of William Gock filed on 27 October 2005 and of William Gock in response to Michael Clowe’s affidavit which was filed on 4 November 2005. I have also the submissions on behalf of the Plaintiff filed on 18 November 2005, those on behalf of the First Defendant filed on 28 November 2005, the Plaintiff’s reply to those filed on 2 December 2005 and those of Counsel for the Second Defendant filed on 9 December 2005.

This interlocutory matter should be determined without delay and after reading the affidavits and the submissions I am in no doubt as to the outcome. There are several such applications needing an early determination and I am able to deliver this one in short form. That I am able to do so is to the credit of the submissions I have received from Counsel for each of the three parties.

I shall refrain from setting out the merits of the submissions. My response to the individual submissions will be clear in what follows. All three Counsel argued on the footing that there are serious issues to be tried between the Plaintiff and the two Defendants. They addressed the issue of whether damages would be an adequate remedy and the balance of convenience. Counsel for the First Defendant addressed the further guideline of Special Cases, with authority in support, but I am not persuaded that the present case comes within that category.

Several helpful authorities were cited to me including the judgment of the Court of Appeal delivered on 4 March 2005, Mataqali Namatua –v- NLFC & Ors Civil Appeal No ABU0020.2004S. The primary authority is American Cyanamid Co –v- Ethicon Limited [1975] UKHL 1; [1975] AC 396.

From the submissions, there is little doubt that there are serious issues to be tried. The First Defendant has or has had an agreement with the Plaintiff and claims it is terminated. He claims a new agreement with the Second Defendant. The Plaintiff sues to uphold the first contract. There are substantial rights for all parties in whichever agreement is upheld. I cannot however try these issues in this interlocutory proceeding.

Would damages be an adequate remedy for the Plaintiff if the interim relief is discharged and subsequently the Plaintiff’s claims are upheld? Damages I think would be a remedy, but to be adequate they might be well beyond the capacity of the Defendants (as shown in the affidavits) to pay. Without determining the issue, the Plaintiff’s agreement if upheld seems to have a very long life. If interim relief is discharged and the Second Defendant goes into occupation, it will make changes and the Plaintiff’s its position would be irrecoverable. This consideration favours continuation of the interim relief.

Where does the balance of convenience lie? I accept the authority of Preston –v- Luck (1884) 27 ChD 497, which has some similarities with the present case. Like Cotton L J, find that the effect of the interim relief is “to keep things in statu quo, so that if at the hearing the (Plaintiff) obtains a judgment in (its) favour, the Defendants will have been prevented from dealing in the meantime with the property in such a way as to make that judgment ineffectual”. I accept that is needed in the present case. Displacement of the Plaintiff from the island which it occupies pursuant to its claimed agreement will immediately result in occupation of the island by others, which immediately terminates the specific performance which the Plaintiff is claiming. Weighed against that, the Defendants if subsequently upheld in the action will be merely delayed and that delay can be remedied by damages.

Conclusion

In my clear view the guidelines which I must apply favour continuation of the status quo and confirmation of the interlocutory relief which has been granted. I therefore make the following orders;

1. The interlocutory order made initially on 7 October 2005 and extended on 28 October 2005 will continue in force until further order of the Court.
   
2. Costs follow the event and are payable to the Plaintiff by both Defendants jointly and severally. I assess them summarily at $800.00.
   
3. The matter is listed in the callover on 24 February 2006 so that it can be allocated the earliest available trial date.
   

D.D. Finnigan
JUDGE

At Lautoka
16 December 2005.