Thai Brickworks (Fiji) Ltd v Sun Enterprises Ltd [1992] FJHC 32; Hbc0283d.92s (27 August 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 283 OF 1992

Between:

1. THAI BRICKWORKS (FIJI) LTD.
2. PATTAMIKA DAMPRAPHA
Plaintiffs

- and -

1. SUN ENTERPRISES LTD.
2. KENNETH JOSEPH SEETO
Defendants

Mr. J. Howard for the Plaintiffs
Mr. S. Inoke for the Defendants

RULING

On the 22nd of June this court granted ex parte to the plaintiffs an interim injunction restraining the defendants from selling, disposing of or in any charging or dealing with a 'brick-making machine' (hereafter referred to as "the machine") which the defendants had in their possession and which the court was satisfied prima facie belonged to the plaintiffs.

The defendants now seek the discharge of the injunction and the plaintiff's an order for the restoration of 'the machine' to their possession, which is a somewhat "different" order to that previously granted ex parte. Indeed the present order sought is in the nature of a mandatory injunction.

The facts that gave rise to these applications may be briefly stated. The 2nd plaintiff a Thai national and a major shareholder and director of the 1st plaintiff company imported into Fiji in August 1986 the machine in question. After storing it temporarily at her residence for 3 years the machine was taken to the defendant's Wailada factory in about June 1989 where it was "stored" on a specially built concrete pad (measuring 7m x 10m). Since then the machine has been in the defendant's possession and control.

The plaintiffs now seek the return of the machine but the defendant's refuse to return it claiming the right to retain possession of it on the basis of an oral agreement entered into between the 2nd plaintiff and 2nd defendant sometime in "early 1989" and which is "evidenced" by an undated, unsigned "Leasing Agreement" which purports to be "for a period of 10 years with effect from 15.8.89".

The plaintiffs for their part deny the existence of any such Leasing Agreement ("which was at variance with that which had been discussed") maintaining instead that the machine was left at the defendant's factory premises upon his "offer to store (it)".

It is undisputed that the machine in question is the only one of its kind presently in the country. It is also undisputed that the plaintiffs have obtained the necessary approvals (in principle) for the formation of a 'joint venture company' with a local brick manufacturer. The joint venture however is "... dependant on the plaintiffs ... regaining possession of the brick making machine ..." and making it available for use in the operations of the joint venture.

In this latter regard Michael McAuliffe, a principal and shareholder of Bula Brick (Fiji) Ltd. has confirmed the proposed joint venture company and, more particularly, the essential requirement that the machine "... be available for the joint venture to proceed ..."

There are also several undisputed assertions in the affidavit such as, that the 2nd defendant had agreed in March 1992 to sell "the machine" to Bula Brick Ltd. for $29,000 ; that the machine is "... lying idle in the defendant's premises"; and that "... it would cost less than $4,000 to reimburse the defendants for the storage of the machine ..."

It is noteworthy that the defendants nowhere assert a 'right of ownership' over the machine and indeed as much is implicit in Clause 3 of the "Leasing Agreement" which recognises the right of the plaintiffs to remove the machine from the defendants premises subject only to payment of expenses incurred in the storage of the machine.

Furthermore, when questioned about the signed agreement to sell the machine, counsel for the defendants sought to "explain" it by referring to a clause in the "Leasing Agreement" which entitles "the lessee" (the defendants) to dispose of the machine to recover outstanding expenses incurred for the transportation, installation, repair and maintenance of the machine and other operating costs.

These latter expenditure and costs are particularised more fully in the defendant's Statement of Defence and Counterclaim and amount to a sum of $40,380 (notably 10 times the amount deposed in Mr. McAuliffe's affidavit).

Needless to say the defendant's agreement to sell the machine for $29,000 represents a significant shortfall in the expenditure and costs allegedly incurred in respect of the machine. In similar vein the defendant's undated 'draft settlement agreement' records the defendant's willingness to release the machine to the plaintiffs upon the plaintiffs withdrawing this action and agreeing to pay the sum of $30,000.

Learned counsel for the plaintiff's submits however that damages would be an adequate remedy for the plaintiffs in the event that their claim should eventually succeed. Counsel reasoned that a replacement machine could be obtained by the plaintiff from overseas should she wish to continue in the joint venture.

Whilst I accept that there is a serious question to be tried, namely, the legal status (if any) of the defendant's oral lease agreement, I cannot accept that damages are an adequate remedy in the particular circumstances of this case having regard to the rather specialised nature of the particular machine involved and the basis on which the defendant's claim to be entitled to retain possession of it.

Indeed the converse is more likely in my view to be true, namely, that damages (which is all that the defendants counterclaim) would be an adequate remedy for the defendants in the event that they are successful in establishing the existence of a legally enforceable agreement by the plaintiffs to lease the machine to them.

Furthermore the 'balance of convenience' in this case strongly favours the plaintiffs who seek the recovery of the machine in order to enable them to enter into a joint venture company and to enable the machine to be used productively for the purpose for which it was designed. The defendants on the other hand seek to retain the machine not because it is being used by them, but rather as some form of "security" for the recovery of expenses related to the installation, storage and maintenance of the machine over the past 3 years.

In all the circumstances I am satisfied that this is an appropriate case for the grant of a mandatory injunction in terms of the plaintiff's inter partes motion of the 28th of July 1992.

Mindful however that the machine is affixed to the defendants premises and has been for the past 3 years and that expenses have been and will be incurred in the dismantling of the machine I order that the plaintiffs pay into Court for payment out to the defendants the sum of $6,880 being rental claimed for the space occupied by the machine for 36 months @ $80 per month (incorrectly computed by the defendants as $8,399) together with the estimated cost of dismantling the same.

(D.V. Fatiaki)
JUDGE

At Suva,
27th August, 1992.

Hbc0283d.92s