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Melbourne Place Ltd v Chief Executive Officer of the Water Authority of Fiji [2012] FJMC 17; Civil Action 294.2011 (14 February 2012)

IN THE FIRST CLASS MAGISTRATE'S COURT AT NADI
WESTERN DISTRICT FIJI

CIVIL ACTION NO. 294 of 2011

BETWEEN:

MELBOURNE PLACE LIMITED a limited liability company having its registered office at Messrs Pricewaterhouse Coopers, 52 Narara Parade, Lautoka.
Plaintiff

AND:

THE CHIEF EXECUTIVE OFFICER OF THE WATER AUTHORITY OF FIJI having his head office at Manohan Buildings, Kings Road, Suva (corner Wainivula Road) and branches in and around Fiji Islands.
Defendant

RULING

Application

1. This is an application by the Defendant to have the interlocutory injunction granted on 22 June 2011 set aside.
   

Background

2. Plaintiff is a Limited Liability Company having its Head Office at Nadi and with its sister company namely, New Zealand Pacific Training Centre, it is an educational institution operating training centres at various centres in and around Fiji.
   
3. The Defendant provides water to the general public and the Plaintiff is a client of the Defendant.
   
4. On 24th November 2010, the Defendant issued to the Plaintiff, a Bill Payment Notice for the sum of $5,219.64 for water consumption [annexure B of the Plaintiff].
   
5. The Plaintiff refused to pay the amount and on 03rd December 2010, the Defendant's agents disconnected the Plaintiff's water meter.
   
6. The Plaintiff protested the Bill; and the Defendant agreed to reconnect the meter while it reviewed the Bill.
   
7. After reviewing the Bill, the Defendant confirmed the same and again requested the Plaintiff to settle the Bill for the sum of $5,219.64 [annexure B and C in the Affidavit of Sekove Uluinayau].
   
8. The Plaintiff then instituted this Action and sought injunctive orders to stop the Defendant from disconnecting its water meter. On 14th June, 2011 the plaintiff filed a notice of motion and sought the following injunctive relief:
   
   1. That there be an injunctive order of this Honourable Court restraining the Defendant by himself, his officer, servants, agents from disconnecting the water supply at the plaintiff's institution namely Melbourne Place, New Zealand Pacific Training Institute situated at Navo Subdivision, Nadi under Account No. 200000011301 on water meter No. EB 9050 until the final determination action.
      

And or in the alternative

2. That the defendant by himself or through his officer, servants, agents forthwith connect the water supply at the plaintiff's institution namely Melbourne Place, New Zealand Training Institution at Navo Subdivision, under Account No. 200000011301 on water meter No. EB 9050 in the event the supply has been disconnected, until the final determination of this action.
   

Interim Injunction

9. On 14 June 2011 the plaintiff filed its Statement of Claim together with a Notice of Motion for injunctive orders and Affidavit in Support sworn by Vishnu Deo on 09th June 2011 returnable for 22 June 2011.
   
10. The defendant appeared by counsel on 22 June 2011 and obtained date to file reply and consented to grant interim injunction until 6 July 2011.
    
11. The Defendant filed its Statement of Defence on 06th July 2011 but sought two weeks time to serve the reply. The interim injunction was extended for further two weeks by consent. The matter was adjourned for mention on 20 July 2011.
    
12. On 20 July 2011 both the counsel appeared. 21 days were given for the plaintiff to file reply and 14 days thereafter for the defendant to file its reply and the matter was set down for hearing on interim injunction. At the same time interim injunction was extended until hearing on 21 September 2011.
    
13. The plaintiff did not file its reply until hearing date being 21 September 2011. Instead, both counsel agreed to file written submission on the issue of interim injunction. Accordingly the court granted 14 days for both party to file written submission. Interim injunction was extended until ruling.
    

Legal Principles

14. In an application for injunctive relief, the onus is on the Applicant ("the Plaintiff") to satisfy the Court that an injunction should be granted. And at the application to dissolve the injunction, the onus is on the Plaintiff to satisfy the Court why the injunction should continue.
    
15. The principles set down in American Cyanamid Co. v. Ethicon Limited [1975] UKHL 1; [1975] AC 396 are accepted as governing the determination whether or not to grant; and whether or not to continue an injunction. The matters to which the Court must address itself as per American Cyanamid:
    

[a]. Is there an adequate understanding as to damages?

[b]. Has there been any material non disclosure?

[c]. Is there and irregularity or defect in the Proceedings?

[d]. Is there a serious issue to be tried?

[e]. Are damages an adequate remedy? and

[f]. If not, where does the balance of convenience lie?

16. In Cambridge Nutrition Ltd v BBC [1990] 3 All ER 523 Kerr LJ said (at 534j):
    

"It is important to bear in mind that the American Cyanamid case contains no principle universal application. The only such principle is the statutory power of the court to grant injunctions when it is just and convenient to do so. The American Cyanamid case is no more than a set of useful guidelines which apply in many cases. It must be used as a rule of thumb, let alone a straitjacket ... The American Cyanamid Case provides an authoritative and most helpful approach to cases where the function of the court in relation to the grant or refusal of interlocutory injunctions is to hold the balance as justly as possible in situations the substantial issues between the parties can only be resolved by a trial. In my view ... the present case is not in that category. Neither side is interested in monetary compensation, and once the interlocutory decision is given little, if anything, will remain in practice."

Content of Affidavit in Reply (in support of dissolution of interim injunction) of Sekove Uluinayau

17. The deponent is the Accounts Clerk of the defendant. He states that the demand by the Authority for payment of the outstanding sum from the plaintiff is warranted and lawful because the Authority has the right to exercise its powers which include demanding for payment of any unpaid rates, authorizing disconnection of water supply in respect of premises where remains unpaid after becoming due for payment and levying interest in the amount of the unpaid from the date they fall due until payment is received in full.
    

Counsel's submission for defendant

18. Mr. Sharma submits that the plaintiff claims the Defendant has issued two bills for the period May to November 2010. One bill is for $223.24 which the plaintiff has paid: and the second one is $5,219.64 which the plaintiff has not paid. The fact is that the bill for $223.24 was based on estimates. However, the bill for $5,219.64 is based on actual meter readings. The plaintiff's water meter had not been read since at least February 2009 when it has buried after the floods. The meter had not been located and uncovered until November 2010. The bill of $5,219.64 is the difference between the estimated bills from approximately February 2009 to November 2010; and the actual meter readings for that period.
    
19. He further submitted that there is no serious issue to be tried, damages is an adequate remedy in this case, the balance of convenience favours the defendant and the plaintiff's undertaking as to damages is inadequate to sustain an injunction.
    

Counsel's submission for plaintiff

20. It is Mr. Suresh Maharaj's submission that looking at the Bill Payment Notices namely annexure "A", "B" and "T", it is obvious that there cannot be sudden change of consumption of water as noted in annexure "B" of 9867 units for six months. On other bills on three monthly rendering of the accounts the consumption was 87 units or 422 units. That it is submitted with respect for that this Court can take judicial notice of the fact that even if it is assumed for each quarter consumption of 500 units then for the period of May 10th to November 10th, the consumption will be 1000 units. Those 1000 unit at 5290 works out only $529.00.
    
21. That the meter was under National and Trade Measurement Decree 1989 and in particular under section 27 (Decree No. 14 of 1989) thereof duly certified by a relevant Inspector that the subject meter was providing correct readings of consumption of water.
    

Consideration of the application to set aside the interlocutory injunction

22. I have already outlined here-above the gist of Plaintiff's and Defendant's argument in this matter. I have for consideration the affidavits filed by both parties and written submission of both counsel.
23. Essentially the plaintiff's claim in this action is that the demand made by the defendant that the plaintiff pay the sum of $5219.64 as water consumption charges for the period of May, 2010 to November, 2010, is arbitrary, unreasonable, illegal, unlawful, wrong and not recoverable and further should not be the basis for disconnection of the water supply at the plaintiff's institution at Navo, Nadi under account No. 200000011301 on water meter No. EB 9050.
24. As stated in London City Agency (JCD) Ltd & Anor v Lee & Others (1969) 3 All E.R 1376:
    

"Just as a court will grant an interlocutory injunction on an ex parte application if a case of sufficient cogency is made, so also will the court on an ex parte application made on sufficiently cogent grounds discharge or vary an injunction granted ex parte."

25. The plaintiff disputed the water charges in the sum of $5219.64 as unreasonable and illegal. These charges were fore water consumption for the period of 10 May 2010 to 10 November 2010. The plaintiff received previous water bill for the period of 10.02.2010 to 10 November 2010 for $667.08. This has been duly paid by the plaintiff.
    
26. While the disputed water charges remain unsettled the plaintiff received water charges for the period of 10.11.2010 to February 2011 in the sum of $223.24. This bill has been duly paid by the plaintiff.
    
27. The Defendant says the bill for $5,219.64 is based on actual meter readings. The plaintiff's water meter had not been read since at least February 2009 when it has buried after the floods. The meter had not been located and uncovered until November 2010. The bill of $5,219.64 is the difference between the estimated bills from approximately February 2009 to November 2010 and the actual meter readings for that period.
    
28. The plaintiff refused to pay the amount ($5,219.64) and on 3 December 2010 the defendant's agents disconnected the plaintiff's water meter. The plaintiff protested the Bill, and the defendant agreed to reconnect the meter while it reviewed the bill. After reviewing the bill, the defendant confirmed the same and again requested the plaintiff to settle the bill for the sum of $5,219.64.
    
29. The plaintiff complains that the defendant installed different water meter after disconnection resulting in him doing a wrong reading and demanding for a payment on a totally wrong reading and/or different water meter. However, the defendant maintains that they have fixed the same meter when they reconnect water supply to the plaintiff. What was the reading of the water meter when the defendant removed it from the plaintiff's premises and what was the reading of it when they re-install the water meter? Whether the water meter was under National Trade Measurement Decree 1989 and in particular under Section 27 of the Decree duly certified by a relevant Inspector that the subject meter was providing correct readings of consumption of water? These are the issues that can be tried at the trial.
    
30. There cannot be two way calculations of the water charges. It should be calculated either on the basis of actual meter reading or on the average basis. The water meter had become buried in approximately January 2009 as a result of flooding and was not located until November 2010. The buried water meter was located approximately two years after it was buried. Can one rely on the reading of a water meter that was buried and found after two years? This is another issue to be tried. The substantial issues between the parties can only be solved by a trial.
    
31. The plaintiff has given usual undertaking as to the damages to the defendant should they suffer any loss by reason of orders prayed for herein being granted. The plaintiff in the affidavit in support asserts that they are a well established company and is in operation. Their annual turnover is over $80,000.00 and they have assets worth over $2,000,000.00. They have also annexed a draft financial report for the year ending 31.12.2010 [J]. In my opinion this is sufficient undertaking as to the damages to the defendant. I find no irregularity in the proceedings.
    
32. The plaintiff is an educational institution operating training centres at various Centres in and around Fiji. The disconnection of water supply to the plaintiff's premises would cause substantial loss, damages, suffering to the plaintiff, its students, employees and other persons using plaintiff's gymnasium and sporting facilities. The plaintiff will have to shut down its operations if the water supply to the plaintiff's premises is disconnected. I am of the view that balance of convenience favours the plaintiff.
    

Conclusion

33. Having analyzed the affidavit evidence before me and considering submissions of counsel for the parties and applying legal principles, I have come to the conclusion that there ought to be an injunction until the trial.
    
34. As to costs, in all the circumstances I consider that these should be in the cause and I so order.
    

M H Mohamed Ajmeer
Resident Magistrate

At Nadi
14 February 2012