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Pacific Emerging Technologies Ltd v Post Fiji Pte Ltd [2021] FJMC 46; MBC 94 of 2021 (9 April 2021)

IN THE MAGISTRATE’S COURT AT SUVA

CIVIL DIVISION

Civil Action No. MBC 94 of 2021

BETWEEN: PACIFIC EMERGING TECHNOLOGIES LIMITED

PLAINTIFF

AND: POST FIJI PTE LIMITED

DEFENDANT

For the Plaintiff: Mr. Karunaratne of Toganivalu Legal

For the Defendant: Mr. Singh and Mr. Fatiaki of Sherani

RULING ON INTERIM INJUNCTION

Introduction

1. This is the Plaintiff’s application for an interim injunction by way of Notice of Motion and Supporting Affidavit of Mr. Radrodro Tabualevu filed on 17^th March 2021. The application is filed pursuant to Section 16 of the Magistrates Court Act and Order 22 Rule 1, Order 26 Rules 1 and 7 of the Magistrates Court Rules.
2. On 2^nd March 2021, the Plaintiff filed the substantive Writ of Summons and Statement of Claim seeking for the payment from the Defendant for outstanding sum owed for supply of o phone recharge vouchers.

The Plaintiff’s submissions

3. Now going back to the Motion, the Plaintiff seeks an interim injunction to restrain the Defendant from preventing the Plaintiff’s entry into to its registered office at Level 4, Post Fiji Building, Suva (“the premises”) to remove its tools of trade. This in itself appears to be an irregularity in procedure and I will return to this point soon in this Ruling. The Plaintiff also seeks to restrain the Defendant from dealing with the properties belonging to the Plaintiff currently located in the premises.
4. The Plaintiff states that the Defendant instituted a purported Distress of Rent against the property of the Plaintiff as a consequence of the commencement of the said Writ of Summons. The Plaintiff’s concern is their tools of trade which is locked inside the premises to which it submits is not subject to the Distress of Rent.
5. The Plaintiff submits that it has adduced facts in support of the injunctive principles as outlined by Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396. Therefore, this Court must order interim injunction as per its Notice of Motion.

The Defendant’s submission

6. The Defendant raises a preliminary objection in that the Plaintiff seeks for an interim order in this Motion which is not sought permanently for in the substantive Writ of Claim. Therefore, on this ground alone this Motion must fail. It relies on Goundar v Fiesty Ltd [2014] FJCA 20, which states:

“The application for injunction needs to be refused in limine, as there is no permanent injunctive relief sought in the claim.”

7. The Defendant submits that the Plaintiff does not satisfy the injunctive principles as per American Cyanamid.
   

The Analysis

8. There is no issue on the legal basis of making this application and also on this Court’s jurisdiction to hear the same by virtue of to Section 16 of the Magistrates Court Act and Order 22 Rule 1, Order 26 Rules 1 and 7 of the Magistrates Court Rules.
9. It is trite law that injunctions are temporary orders made with the purpose of regulating the position between the parties to an action pending trial. In the case of Deo v Hans [2018] FJHC 1113; HBC121.2018 (21 November 2018), the High Court stated:

“Such an order is particularly useful where there is evidence that the respondent’s wrongdoing will cause irreparable damages to the applicant’s interest in the period between issue of process and trial.”

10. Injunctions are only remedies, so can usually only be granted if the applicant has a substantive cause of action. As stated by Lord Diplock in The Sikina [1979] AC 210:

“A right to obtain an [interim] injunction is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out an invasion, actual or threatened by him, of a legal or equitable right of the [claimant] for the enforcement of which the defendant is amenable to the jurisdiction of the court. The right to obtain an [interim] injunction is merely ancillary and incidental to the pre-existing cause of action.”

11. These authorities give rise to the Defendant’s preliminary issue on whether an interim order in this Motion which is not sought permanently for in the substantive Writ of Claim.
    
12. The Writ of Claim outlines breach of supply agreement as the cause of action and seeks for damages as relief. This stems from the parties business relationship. There is no permanent injunction sought for in the said writ. However, this Motion outlines another relationship, that is, landlord and tenant. It seeks for an interim injunction to prevent Defendant from exercising its right to the purported Distress of Rent. The Court applies the same binding authority as raised by the Defendant in Goundar v Fiesty Ltd [2014] FJCA 20 in that an application for interim injunction needs to be refused at the outset if there is no permanent injunctive relief sought in the claim. Therefore, on this issue alone, the Motion fails. Naturally, the serious question requirement that needs to be tried as required by the injunctive principles in American Cyanamid authority is relevant here as there is a total distinction between the substantive matter and this interim matter.
13. With due respect to the Plaintiff but there is sufficient recourse in the Distress of Rent Act regarding the validity of the distress, the seizure of tools of trade and so on.

Courts’ Findings

14. The Court therefore orders: -

1. The Notice of Motion filed by the Plaintiff on 31^st March 2021 is dismissed.
2. I award costs of this application against the Plaintiff summarily assessed at $200 within 28 days of this Ruling.
3. Thereafter this action will takes its normal course.

15. 28 days to appeal

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J. Daurewa
Resident Magistrate
9^th April 2021