IN THE MAGISTRATES COURT AT NASINU

Civil Case No. 58/2011

APOROSA ROKOTUIVEIKAU
[Plaintiff]

v

PERMAL GOUNDER
[Defendant]

Ms. Anuleshni Neelta for the Plaintiff
Mr. Rajendra Chaudhry for the Defendant

Ruling on Interim Injunction

1] The plaintiff filled its Ex-parte application seeking, inter alias, to possess the vehicles registration numbers bearing DK 327 and EG 591 until the Defendant has paid the sum of $25,000 to the Plaintiff. The Plaintiff further asked those vehicles not to be sold by the defendant until the said sum paid to the Plaintiff. Having satisfied with the plaintiff's ex-parte motion, I granted orders in terms of said motion on 02nd February 2011 ordered copy of the order to be served on the Defendant.

2] Then on 15th February 2011, the Defendant filed ex-parte notice of motion to vacate the said order. On that application the court decided to have it inter-parte and notice issued on the Plaintiff. On 18th, 23rd February and 4th March 2011 matter was supported and argued before this court, both parties have filed their written submissions respectively and Ruling fixed for today which I now consider.

3] The plaintiff's case is succinctly as follows. The defendant was residing with the plaintiff until 8th May, 2008 and he owns above registration vehicles. Those vehicles were under Bill of sale to The Merchant Finance company Limited. The Defendant left the country in May 2008 and leaving above vehicles with the Plaintiff. One of vehicle EG 591 was seized by the Finance Company for nonpayment of its bill of sale and later the plaintiff has paid and cleared off the vehicles under Bill of Sale. The plaintiff has paid fees for Bill of sales, LTA and maintenance and spent total sum of $25,000. The Defendant has made no contribution whatsoever while he was in New Zealand. Plaintiff averred that the Defendant advised the plaintiff to pay and clear off the Bill of Sale with Merchant Finance and in doing so will transfer ownership to the Plaintiff. The plaintiff cleared the Bill of Sale for DN 916. The Plaintiff said that the Defendant arrived Fiji on 27th January 2011 and he then tried to contact the Defendant which the Defendant evaded. Therefore the Plaintiff fears that Defendant will transfer the above vehicles to a third party without paying the sum used by the Plaintiff, believes that the Defendant intends to take the vehicles from his premises without paying the said sum. If the Defendant is allowed to take the said vehicles without paying the Plaintiff's expenses he will suffer irreparable loss and expenses.

4] Therefore the Plaintiff prays; 

a) An injunction restraining the Defendant whether by himself, his servant or agent from in anyway seizing said vehicles EG 591 and DK 327. 

b) An order that the Defendant should pay the said sum of $25,143.75 to the Plaintiff. 

c) Judgment on sum, cost and other relief as the court may deem just and equitable.

5] The plaintiff ex-parte notice of application is supported by his affidavit without any documents. In the affidavit he said that the Defendant was in de facto relationship with his mother namely Akeneta Tinanicagi. He said in December through Korovou Police the Defendant's Brother Simon Kumar, tried to seize these vehicles on instructions of the Defendant.

6] In replying that the Defendant said prior to his leaving to New Zealand in May 2008, an arrangement was made in the presence of his brother Siman Salen Kumar with the Plaintiff. That is to say that the Plaintiff would drive the said vehicles for him and the Plaintiff will be paid $100 per week for each vehicle. In return the Plaintiff was to earn $490 and $390 per week for both vehicles respectively and $200 will be deducted and balance sum was to be given to Simon Kumar would then pay Merchant Finance. The said vehicles were used to cart passengers, stock and other villagers from Nabua to Tailevu. The Defendant said that the Plaintiff had not paid as he agreed and had paid directly to the bank and remaining money was pocketed by the Plaintiff without giving to his brother. The defendant said that he has not agreed to transfer the vehicles to the plaintiff's name whatsoever. There was no agreement in this regard. By calculating the Defendant showed that the Plaintiff gained $1960 for every month and has not suffered any loss yet and his claim cannot be sustained. The defendant marked following documents to support his application. PG1-Ex-parte Order on 02-02-2011,PG2-Copy of Pertinent Registrations, PG-3- Merchant Finance letter to prove that the bills of sale have been cleared, PG-4 The Affidavit of Simon Shalend Kumar,PG-5- ledger sheets to prove payments of bill of sale for each vehicle.

7] Since matter was fixed inter- parte both parties filed their replies to each other. In the Plaintiff's reply he said that he was not merely a driver and the Defendant treated him as a son and he treated the Defendant as a father since the Defendant was de facto husband of his mother. He said that he stayed with the Defendant in the Defendant's house and the Defendant has a daughter by the Defendant's de facto relationship with his mother. He denied the arrangement which the Defendant mentioned in his Para. 7. In this reply Plaintiff filed documents making "A" Affidavit of Akenata Tinai, "B" and "C" the two letters sent by the Defendant to New India Insurance Company and the Merchant Bank- Nabua . The Plaintiff averred that in one time he was unable to meet the default amount and his maternal grandfather gave his Mataqali money to set off the default amount. He said he earned money by Dalo farm and had used to set off the bills of sale. 

8] In replying the Defendant admitted the de facto relationship with the Plaintiff mother but said it has no effect to this application. He averred that there was no legal father and son relationship with the Plaintiff. He said that the defendant was the Driver and Hirer and Care taker of these vehicles were his brother Simon Kumar. He admitted that he wrote letters to New India Insurance Company and Merchant Finance Co. Defendant said that Plaintiff unjustly enriched and benefitted from using the said motor vehicles. Therefore the Defendant Seek to dissolve an injunction as granted on 2nd February 2011.

9] Basic legal principles for granting interlocutory injunctions are set out in American Cyanamid Co. V. Ethicon Ltd [1975] AC 396;

A) The Plaintiff must establish that there is a serious question to be tried. 
B) The inadequacy of damages to compensate the Plaintiff by the Defendant
C) Balance of convenience.

10] In Whittaker v National Bank of Fiji Ltd [2009] FJHC 275; HBC155.2009l (9 December 2009), Sosefo J said:

"The Court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried. So unless the material available to the Court at the hearing of the application for an interlocutory injunction fails to disclose that the Plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the Court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought".

11] In line with the above principles I now analyzed the facts before me. It is apparent according to the facts before me that the Plaintiff has no legal right to these vehicles. He admits that the Defendant has the lawful owner/title and but he alleges the Defendant agreed to transfer these vehicles after payment was settled as to bills of sale in his name. But it appears that there is no written contact to that effect, but of course apart from the written contacts, contacts may be derived from verbally or by behavior of the parties. Therefore it cannot be decided whether there is an existing contract to that effect. Particularly, in this case, it is hard to decide said matter on available evidence. The Plaintiff does not dispute the fact that the Defendant is the owner of the said vehicles. Prima facie and legally there is no lien over the said vehicles to the Plaintiff. Then it is clear that the Plaintiff has no hold for said vehicles. But at this moment the court cannot consider any of these issues to be frivolous. They cannot be easily resolved by reference to the affidavits. The parties must be tested under oath by cross examination and factual assertion to be done accordingly. 

12] In American Cyanamid Co. V. Ethicon (supra) Lord Diplock Articulates;

"In view of the fact that there are serious questions to be tried upon which the available evidence is incomplete, conflicting and untested, to express an opinion now as to the prospects of success of either party would only be embarrassing to the judge who will have eventually to try the case" 
 
13] In Natural Waters of Viti Limited v Crystal Clear Mineral Water (Fiji) Limited (unreported Civil Appeal No. 11 and 11A of 2004 delivered 26 November 2004), Fiji Court of Appeal has indicated that the principles set out in American Cyanamid case are appropriate test to be applied in law of injunctions.

Therefore, I hold that there is serious question to be tried. 

14] The Second ground is, has the Plaintiff given any undertaking as to damages? Is this undertaking properly evidenced as reflecting his ability to pay damages? Or the Plaintiff could be adequately compensated? Lamentably, the Plaintiff has not addressed this matter nor he has given any undertaking as to damages. No evidence has been adduced in that effect that he has a capacity to pay the damages if the Defendant succeeded his claim. Is this vitiating the Plaintiff's Application for injunction? Now I shall turn to the case law.

 15] In National Australia Bank Limited & others v. Bon Brewing holdings Limited & others (1990) 169 CLR 271 court held

"that the ex parte order should not have been made without an undertaking as to damages being offered or required".

16] In unreported case Satya Nand v. Rajendra Prasad and other Civil Action HBC 277 of 2010 dated 21st February 2011, His Lordship Justice Calanchini held

"this consideration is to ask whether damages would be an adequate remedy for the plaintiff. If the damages would be adequate remedy and the defendant was in a financial position to pay them, then an interlocutory injunction would not normally be granted, regardless of the apparent strength of the Plaintiff's Case" 

17] In this case the plaintiff quantified his claim as to $25,143.75. Court notes if the Plaintiff succeeded his case, he could be adequately compensated as the Defendant is the owner of subject vehicles. On the other hand the Plaintiff has not adduced any evidence that if the Defendant succeeded his claim that the Plaintiff has mean to pay adequately compensate to the Defendant. 

18] In Natural Waters of Viti Limited v Crystal Clear Mineral Water (Fiji) Limited (unreported Civil Appeal No. 11 and 11A of 2004 delivered 26 November 2004) the Fiji Court of Appeal stated that applicants for injunctive relief must place sufficient material before the Court to fortify the undertaking as to damages. The Court held that applicants for interim injunctions who offer an undertaking as to damages should always proffer sufficient evidence of their financial position. 

19] In Air Pacific Limited and Others v Air Fiji Limited (unreported Civil Appeal No. 66 of 2006 delivered 10 November 2006), the Court of Appeal re-iterated the requirement in regard to the undertaking to pay damages stating that:

 "As an important point of practice we wish to repeat however that where a party gives an undertaking to pay damages, there must be adequate information to allow an assessment of the worth of the undertaking"

20] This principle was repeated in Honeymoon Islands (Fiji) Ltd v. Follies International Ltd (Unreported Civil appeal No. 63 of 2007 delivered on 4th July 2008). As these cases indicated there should be an undertaking as to damages and the Plaintiff failed to do so and I hold that injunction cannot be sustained in favor of the Plaintiff.

21] Now I turn to consider non-disclosure of material facts. I note both parties are equally fault at this factor.

22] In R. v Kensington Income Tax Commissioners, ex p. Princess Edmond de Polignac (1917) 1 K.B. 486 at p.505 as per Lord Cozens-Hardy M. R held in relation to material non-disclosure; 

"…the Court ought not to go into the merits of the case, but simply say, we will not listen to your application because of what you have done"

23] More relaxed approach is taken in Brink's-MAT Ltd v Elcombe and others [1988] 3 All ER 188 Ralph Gibson LJ determined;

"Whether the fact not disclosed is sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues which were to be decided by the judge on the application…

Finally it is not for every omission that the injunction will be automatically discharged… the court has a discretion, not withstanding proof of material non-disclosure which justifies or requires the immediate discharge of ex parte order, nevertheless to continue the order, or to make a new order on terms." 

24] In considering Balance of Convenience Lord Diplock sets out the approach to be taken in Cyanamid (supra) as follows:

"It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises. It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them.

25] In Official Custodian for Charities v Mackey [1985] Ch 168, Scott J said that the American Cyanamid principles

"are not in my view, applicable to a case where is no arguable defence to the Plaintiff's claim. The Court will not consider the balance of convenience, but will grant the relied claimed subject to the usual equitable considerations".

26] It is clear that American Cyanamid principles may not be applied where there is no arguable defence to the Plaintiff's case. It is to be noted these vehicles are not registered as public vehicles under the section 62 of the Land Transport Act. Yet it is premature to hold that there is no arguable defence to the Plaintiff and therefore above Official Custodian case has no application to this case.

27] Ms. Neelta has extensively addressed the court regarding arguable defence and unjust enrichment. Court appreciates that it has some weight. In this case the Plaintiff claims the unjust enrichment, on the other hand the Defendant claims to the Plaintiff has been unjustly enriched by using these vehicles by breaching the verbal agreement. Hence these things need to be decided in the substantive case on merits and it is unwise to decide on the documents and untested affidavits. The Plaintiff failed to file material documents and particulars in the firsthand. The legal maxim of "Lex Vigilantibus, Non Dormientibus, Subvenit- Law assists the wakeful, not the sleeping" to be applied. If he filed the material particulars along with the supporting documents his ex-parte application could have been survived. Thus he failed to do so, he will have the repercussions.

 28] I have carefully considered the facts before me. In line with the above case laws I am of the view that injunctive orders as granted on 2nd February 2011 cannot be sustained and should be vacated. Therefore, I make following orders.

i) Injunctive orders as granted on 2nd February 2011on the Plaintiff's Application is hereby dissolved. 

ii) The Defendant is prevented to sell subject matter ( vehicles registration numbers bearing DK 327 and EG 591) until the conclusion of substantive matter.

iii) Transfer of subject matter has been banned and Land Transport Authority to be notified said order through Senior Court Officer of Nasinu Magistrates Court.

iv) Parties should bear their own cost in this application

v) The Defendant ordered to file Statement of Defence for the substantive case within 14days and The Plaintiff should file the reply within 7 days thereafter (If any). 

On 18th March 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate