American Samoa Government v Bank of Hawaii [2012] ASHC 24; CA 29-12 (11 July 2012)

OPINIONS

OF THE

TRIAL DIVISION

OF THE

HIGH COURT OF AMERICAN SAMOA

(2012)

AMERICAN SAMOA GOVERNMENT,
Plaintiff

v.

BANK OF HAWAII,
Defendant
___________________________________

High Court of American Samoa
Trial Division

CA No. 29-12

July 11, 2012

[1] A preliminary injunction will only issue after an inter-partes hearing duly noticed, and upon "sufficient grounds," which an applicant establishes by a preponderance of evidence. Sufficient grounds for issuing a preliminary injunction are: (1) there is a substantial likelihood that the applicant will prevail at trial on the merits and that a permanent injunction will be issued against the opposing party; and (2) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on whether a permanent injunction should issue. A.S.C.A. § 43.1301(j).

[2] Although a written undertaking with sufficient sureties should issue with a preliminary injunction, one is not needed if an injunction issues on application of ASG. A.S.C.A. § 43.1309.

[3] A court issuing a preliminary injunction must determine and assess: (1) the likelihood of the applicant's success and (2) the relative harm to either side (the applicant’s showing of great or irreparable injury).

[4] The applicant’s showing of great or irreparable injury turns on a balancing of equities determination, which in turn takes into account: (i.) the harm a plaintiff would suffer without an injunction; (ii.) the harm a defendant would suffer with an injunction; and (iii.) the effect an injunction would have on the public interest.

[5] The typical preliminary injunction is prohibitory and generally seeks only to maintain the status quo pending a trial on the merits. A mandatory injunction, in contrast, is said to alter the status quo by commanding some positive act. Courts generally do not issue mandatory injunctions and require a higher showing of success on the merits if one were to be given. Where a bank is shown to have improperly frozen a government’s bank account at the behest of a foreign court’s writ of execution, the heightened showing is met. However, this ruling is narrow and the court’s order should not be misconstrued as generally allowing private individuals to seek out mandatory injunctions against another private individual for the return of money—those situations normally require an action for money (legal) damages not injunctive (equitable/coercive) relief.