Home | Databases | WorldLII | Search | Feedback High Court of Fiji

  Download original PDF

Low v Labour Marine Shipping Services Ltd [2014] FJHC 618; HBC188.2014 (20 August 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
Civil Action No. HBC 188 of 2014

BETWEEN:

AUBREY LOW a resident of the United State of America
PLAINTIFF

AND:

LABOUR MARINE SHIPPING SERVICES LIMTED a duly incorporated company having its registered office at c/- GH Whiteside & Co., 211 Ratu Sukuna Road, Suva
FIRST DEFENDANT

AND:

SPENCER AH SAM of Lami, Suva
SECOND DEFENDANT

AND:

RUSSEL AH SAM of Lami, Suva
THIRD DEFENDANT

AND:

MALCOLM AH SAM of Lami, Suva
FOURTH DEFENDANT

AND:

HILDA AH SAM of Lami, Suva
FIFTH DEFENDANT

AND :

TRADE PUBLICITY LIMITED a duly incorporated company having its registered office in Suva
SIXTH DEFENDANT

BEFORE : Justice Deepthi Amaratunga
COUNSEL : Mr. A. Singh for the Plaintiff
Mr. A. Chand for the Defendant
Date of Hearing : 11 August 2014
Date of Judgment : 20 August 2014

JUDGMENT

INTRODUCTION

1. The Plaintiff filed a notice of motion and inter partes motion seeking an extension of caveat and also seeking injunctive relief restraining dealing with said property. At the time of the hearing the counsel for the Plaintiff admitted that the caveat had lapsed and only remaining issue was the interlocutory injunction. The counsel for the Plaintiff also stated though a separate number had been assigned to this matter he will not be filing a writ of summons and or statement of claim but were relying on the pending action HBC426 of 2007 between the same parties for this application for an injunction. In the said action the Plaintiff was claiming for damages on the basis that the transfer of ownership of a land belonged to the 1st Defendant as fraudulent deal. Now the Plaintiff is seeking an order from the court preventing the Defendants from dealing with another property owned by 1st Defendant Company, where the Plaintiff and 2nd and 4th Defendants are equal shareholders. The basis of the application as per paragraph 15 of the affidavit in support is that he 'did not trust directors of the Defendant'.
   

FACTS

2. The Plaintiff seeks to obtain an injunction 'restraining the Defendants in any manner whatsoever from transferring, charging, mortgaging, leasing or in other way to deal with the land known as Lot 16 on S 1435 Wailada Industrial Subdivision registered in Crown Lease no 5358 (Crown Lease)together with the improvements, until further order of this Honorable Courts.'
   
3. The Plaintiff has not filed a writ of summons, but filed notice of motion seeking inter alia said order. The Plaintiff's counsel in his submission said he does not desire to file a writ of summons and or statement of claim, but relied on a pending HBC 426 of 2007. If so why their motion did not contain the same action number (ie. HBC 426 of 2007) was not explained. Though the parties to this matter as well as HBC 426 of 2007 were the same, the numbering of the defendants were not identical. If the Plaintiff desired to rely on HBC 426 of 2007, the numbering of the Defendants cannot change as this would create confusion.
   
4. The HBC 426 of 2007 had not proceeded to hearing, and the Plaintiff was alleging fraud against the Defendants relating the dispose of a land more fully described in the said action. The said property in action HBC 426 of 2007 as well as the Crown Lease that is in issue of this case belonged to the 1st Defendant Company.
   
5. The Plaintiff admitted that he along with the 2nd and 4th Defendant were the equal shareholders of 1st Defendant Company. That means the Plaintiff who is a minority shareholder is seeking the majority shareholders from dealing with the Crown Lease. 2nd Defendant in the affidavit in opposition admitted that he and 4th Defendant were holding equal shareholding in the 1st Defendant, but stated that he had paid the 4th Defendant, for his share a sum of $130,000.
   
6. There is no evidence supporting the payment of the said sum and or any agreement between the 2nd and 4th Defendant to transfer the shareholding of the 4th Defendant to be transferred to the 2ndDefendant, and in the circumstances I need to consider 2nd and 4th Defendant as equal shareholders having 2/3 stake in the 1st Defendant Company.
   
7. In any event the Plaintiff is seeking an injunction against all the defendants including the 2nd and 4th Defendant as well as the 1st Defendant Company.
   
8. The Plaintiff denied that he was not actively engaged in the affairs of the 1st Defendant Company, but in the affidavit in support at paragraph4 stated that he intended to divest his shareholding (presumably with the 2nd Defendant), but could not settle the divesture proposal and had to leave to USA in 2005 leaving 1st Defendant Company and its assets in trust to the 2nd and 4th Defendant. This was contrary to what the Plaintiff was alleging in the affidavit in reply at paragraph 3 where he alleged that he was 'actively involved in the day today operation of the 1st Defendant'.
   
9. The law relating injunction as laid down in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] 1 All ER 504 at 509 Lord Diplock stated as follows;
   

"The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The court must weigh one need against another and determine where 'the balance of convenience' lies".(emphasis added).

10. The Plaintiff sought an injunction restraining dealing with the Crown Lease belonging to the 1st Defendant Company on the basis of alleged fraud in Action HBC 426 of 2007 relating to a land belonged to the 1st Defendant . The Plaintiff stated that he had lost trust of the directors of 1st Defendant. The Plaintiff has not explained in its affidavit in support alleged injury or the alleged violation of his right.
    
11. In paragraph 15 of the affidavit in support the Plaintiff stated that he did not trust the directors of the Defendant and Trade Publicity Limited to hold the subject land in trust for his financial benefit as a director and equal shareholder of the Defendant'. If so the Plaintiff's alleged right was based on the loss of trust.
    
12. Even assuming that Plaintiff proves his case in Action No HBC 426 of 2007, it cannot be a basis to restrain dealing with Crown Lease, as it was not the subject matter of said action. Perhaps, that may have resulted this motion being filed separately as a separate matter under a separate number. If this motion was filed in the said action, it would have been clearer that this matter relates to a separate land, and no serious question of law being revealed relating to the Crown Lease in HBC 426 of 2007, in order to restrain dealing with the Crown Lease. HBC 426 of 2007 was relating to a different land which was already transferred. In that action the Plaintiff was seeking damages. So, there is no irreparable loss revealed.
    
13. The Plaintiff has also failed to state that he could not be adequately compensated in damages. The Crown Lease belongs to the 1st Defendant Company and dealing of the property is vested with the management of the company for the benefit of the shareholders including the Plaintiff. Merely because of pending action against the Defendants in HBC 426 of 2007, the Plaintiff cannot obtain restraining order against a property not related to the claim of the said action. There is no claim for permanent injunction relating to the Crown Lease or any other asset belonging to the 1st Defendant in HBC 426 of 2007 and in the circumstances the interim restraining order against the dealing of the land cannot stand.
    
14. Lord Diplock in American Cyanamid (supra) at p510 further held,
    

'As to that, the governing principle is that the court should first consider whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant's continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted.....,'

15. The counsel for the Plaintiff stated in his written submissions relied on Smith and others v Inner London Education Authority [1978] 1 All ER 411. In that case the injunction was refused by UK Court of Appeal (civil division) since there was no prospect of obtaining a permanent injunction against the public body. The ratio is, when there is no prospect of success of permanent injunction as final relief the interim injunction cannot stand, even to preserve status quo. In the said case the dispute arose from a decision of the Education Authority to terminate funding to a school which was in existence for over 200 years. The parents of the children of the school contended that there could be a change of mind after the general elections which was due shortly. But Lord Denning refused the preservation of status quo as there was no 'real prospect of succeeding in their claim for a permanent injunction' (see [1978] 1 AII ER 411 at p418). The Plaintiff did not seek any relief against the Defendants from dealing with the property belonging to the 2nd Defendant Company, in HBC 426 of 2007. The said action was only relating to one transfer of a property previously owned by 1st Defendant, for which the Plaintiff was claiming damages as a shareholder.
    

CONCLUSION

16. In the HBC 426 of 2007, there was no permanent injunction sought restraining dealing with the Crown Lease and or the affairs of the 1st Defendant Company where the Plaintiff is presently only a minority 1/3 shareholder. At the same time there is no evidence before me to the effect that if the Plaintiff were to succeed at the trial in HBC 426 of 2007, in establishing his right to a permanent injunction or adequacy of damages as compensation. The Crown Lease belonged to 1st Defendant Company where the Plaintiff as well as 2nd and 4th Defendants are shareholders. The Plaintiff allege that he cannot trust the Directors of the 1st Defendant to deal with Crown Lease, but Crown Lease or assets of the 2nd Defendant were not subject matters of the HBC 426 of 2007. There is no serious question to be tried relating to the assets of 1st Defendant and or more specifically the Crown Lease. In the circumstances the motion dated 8th July, 2014 is struck off. The cost of this application is summarily assesses at $1,000.
    

FINAL ORDERS

1. The notice of motion dated 8th July, 2014 struck off and the matter is dismissed.
2. The cost is summarily assessed at $1,000.
   

Dated at Suva this 20th day of August, 2014.

Justice Deepthi Amaratunga
High Court, Suva