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Western Builders Ltd v Manohan Aluminium and Glass (Fiji) Ltd [2012] FJHC 1330; HBC22.2012L (12 September 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 022 of 2012

BETWEEN:

WESTERN BUILDERS LIMITED
a limited liability company having its registered office at Ba, Fiji
Plaintiff

AND:

MANOHAN ALUMINIUM AND GLASS (FIJI) LIMITED
a limited liability company having its registered Office at Suva, Fiji.
1st Defendant

AND:

MITRE 10 (FIJI) LIMITED
a limited liability company having its registered office at Suva, Fiji.
2nd Defendant

Appearances:
V.Sharma/Mishra Prakash for the Plaintiff
Wasu Pillay for the 1st & 2nd Defendant

ORDER

1. The Plaintiffs obtained an Ex parte interim injunction for a limited period of time (extended till further order of Court) restraining the Defendants from proceeding with a winding up application against the Plaintiff. The Defendants are moving to set aside that interim injunction.
   
2. The Plaintiffs have come to Court on the basis that they have not been paid by the FNU due to defects in supplies made by the Defendants and as such alleging a counter claim against the Defendants.
   
3. The Defendants have asserted in their written submissions that the Plaintiff has been paid fully by the FNU and that material fact had not been placed before the Court when obtaining the above interim injunction. The Defendants have made this assertion of non disclosure of material facts against the Plaintiffs in their written submissions of 15/5/2012, and the Plaintiff by their subsequent written submissions of 22/5/2012 has failed meet or deny that assertion.
   
4. Inoke J, in Vinod Patel & Company Vs. Vimal Construction & Joinery Works Ltd 2011 FJHC 194 cited the following passage of Donaldson L.J in Bank of Mellat v. Nikpour (1985) F.S.R. 87;
   

"This principle that no injunction obtained ex parte shall stand if it has been obtained in circumstances in which there was a breach of the duty to make the fullest and frankest disclosure is of great antiquity. Indeed, it is so well enshrined in the law that it is difficult to find authority for the proposition; we all know it; it is trite law. But happily we have been referred to a dictum of Lord Justice Warrington in the case of R. v. Kensington Income Tax Commissioners, ex p. Princess Edmond de Polignac (1917) 1 K.B. 486 at p.509. He said: 'It is perfectly well settled that a person who makes an ex parte application to the court - that is to say, in the absence of the person who will be affected by that which the court is asked to do - is under an obligation to the court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained by means of the order which has thus wrongly been obtained by him'."

6. Therefore this Court will not delve in to the merits of the Plaintiffs application but set aside the Ex parte interim injunction so obtained forthwith.
   
7. As such the Ex parte interim injunction obtained on the23rd February 2012 and sealed bearing the date 23/2/2012 though signed by the Acting Assistant Registrar on the 28/2/2012, is hereby discharged, dissolved and set aside with immediate effect.
   
8. The Plaintiff shall pay costs summarily assessed in a sum of $1000/- to the Defendants.
   

.............................................
Hon. Justice Yohan Ian Fernando.
JUDGE.

High Court of Fiji
At Lautoka,
12th September 2012.