PH Kelly Holdings Ltd v Collard [1997] FJHC 243; Hbc0304.95l (22 October 1997)

IN THE HIGH COURT OF FIJI
(AT LAUTOKA)
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0304 OF 1995L

BETWEEN:

P.H. KELLY HOLDINGS LTD
PLAINTIFF

AND:

DAVID JOHN COLLARD
ANNA MARIA COLLARD
1ST DEFENDANT

AND:

VITACRAFT (SOUTH PACIFIC) LIMITED
2ND DEFENDANT

Mr A. Patel for the Plaintiff
Mr Singh (of KOHLI & SINGH) for the Defendants
Mr Gordon for an interested 3^rd Party.

Date of Hearing: 22nd October 1997
Date of Decision: 22nd October 1997

DECISION

On the 22nd October 1997 I heard argument in this matter. I delivered my Decision at the time. Herewith are my written reasons.

The Plaintiff f/Respondent in this matter issued a Writ of Summons out of this Court on the 14th September 1995 concerning a certain commercial matter between it and the 1st and 2nd Defendants. On that day I granted an ex-parte order designed to be temporary only. I was informed that there was a container load of personal possessions about to leave Fiji which belonged to the 1st Defendant. I ordered an Ex-parte Mareva Injunction intended to stop these items leaving Fiji pending a hearing from both parties.

A defence was subsequently filed on the 1st April, 1996. This was after the Ex-Parte order had been extended until further order. This was done in absence of appearance of the 1st and 2nd Defendants on the 8th December 1995. I pause to note that the sealed order in respect of that matter sealed on the 19th December has Mr RAM KRISHNA appearing for Messrs MUNRO LEYS & CO. for the Defendants. The Court Record does not support this. In fact the Court Record says that there was no appearance made by the 1st and 2nd Defendants despite having been called. I thus direct the Deputy Registrar to correct this error pursuant to O.20 r.10. A copy of this ruling will be directed to the Deputy Registrar for that purpose.

On the 1st July 1997 the 1st Defendant filed a Notice Of Motion seeking to dissolve the Injunction. An Affidavit in support was sworn by Mr TOLOI whom I accept as the lawful Attorney for the 1st Defendant DAVID JOHN COLLARD. It seems Mr DAVID JOHN COLLARD is the person who has the running of this matter on behalf of both he and his wife.

I have read all of the Affidavit material in this matter and I can only say I am far from impressed with the bona fides and truthfulness of the 1st Defendant. I am concerned at the following matters:-

1. In Mr TOLOI's Affidavit of the 27th August 1997 (Sworn the 26th August 1997), a deed of gift between the 1st Defendant and their son MATTHEW JOHN COLLARD is annexed. This DEED of gift purports to show that all the items in the container are in fact the goods of MATTHEW JOHN COLLARD and not of the 1st Defendant. Consequently, it is inferred, the Court has no jurisdiction over those goods. The deed of gift is dated sometime in December 1992 and was registered it seems on the 11th January 1993.

2. Despite the contents of that deed, when I refer to the Affidavit of MESSRS KELLY (for the Plaintiff/Respondent) filed on the 27th August, there appears what is clearly a dated compromise in this action. That dated compromise lists certain items of furniture to be held as security. The deed of compromise is entered by Mr COLLARD, implicitly for and on behalf of the 1st Defendant. The items of furniture set down therein to be used as security for compromise agreement are the same items of furniture which appear in the container and which are supposedly the property of MATTHEW JOHN COLLARD.

The alternatives are obvious:

a) The deed of gift to MATTHEW JOHN COLLARD is a sham and no effective transfer of the goods took place.

b) The goods and property transferred to MATTHEW JOHN COLLARD do not include the goods pledged to the security for the compromise - this is certainly not the implication in the material

or,

c) That DAVID JOHN COLLARD has pledged another person's goods as security without that person's consent. As I recall the CRIMINAL LAW in Queensland that is most likely a criminal offence.

I am further intrigued by the statement made by Mr TOLOI in paragraph 3 of his Affidavit of the 27th August which says:

"Furthermore, I an advised that he signed the Agreement (this is the compromise agreement - my clarification) despite the fact that the liability was not admitted to the claim but to seek an early release of the container."

Mr TOLOI then goes on to say that he has been advised that indeed the parties did sign the compromise agreement.

How is the Court meant to take this? Does it mean that Mr COLLARD signed the agreement just to get the release of the container and he has no intention of complying with the terms thereof? Does it mean that the compromise agreement was simply a sham to designed to trick both the Court and the Plaintiff? There is no evidence before me that the compromise agreement has in any sense being carried out by, for example the payment of $10,000.00 into the Trust Account of MESSRS BENNETT, CARROL AND GIBBONS, SOLICITORS of I believe, Mt. GRAVATT in Brisbane.

It must be pointed out that the 1st Defendant/Applicant comes before this Court seeking that the Court do equity. Injunctive Relief is an exercise in the Court equitable jurisdiction, as is of course, an application to dissolve any injunctive relief previously granted. A very basic (in fact the most basic) principle to be applied by parties coming into Court seeking equity, they come with clean hands. In other words they come into the Court, telling the truth. I am far from convinced that the 1st Defendants have come before this Court in its equitable jurisdiction with clean hands. In fact I have very strong suspicions of the opposite.

Accordingly I dismiss the application brought by way of Notice of Motion filed on the 1st July 1997.

I might say that this Court will quite willingly dissolve the Injunction if it receives confirmation that the terms required to be meet for release of the container in the compromised agreement have been met. One would expect, for example, that such confirmation would be able to be put before the Court by consent. Perhaps take the form of bona fide correspondences from the Brisbane Solicitors Messrs BENNET, CARROL & GIBBONS that they do have in fact the monies in Trust and that they are prepared to act as it were, as Trustee for the parties and attend to their responsibilities under that compromise agreement. As was advised during the hearing, I have knowledge of that firm of solicitors (I know Mr Carrol as a professional colleague). It is a firm of long standing and of good reputation in Brisbane. The Court would have little difficulty in accepting their assurances that the terms of compromise have been carried out, provided of course it is put before the Court in proper form.

After I dismissed the application, I was invited to exercise my discretion in respect of costs. At this stage I prefer to reserve costs. I note that the compromise agreement makes a provision in respect thereof, it would be inappropriate for the Court to make any orders as to costs at this stage other than merely reserving them to see whether the 1st Defendants do in fact carry out that compromise agreement.

I note Mr GORDON's client as the owner of the Container has some concerns. If of course the compromise agreement is carried out then they will have their container back soon enough.

Accordingly, I will adjourn this matter until the 16th January 1998 for mentioning in Chambers whereupon I expect the parties to give the Court some sort of update on developments.

JOHN D. LYONS

HBC0304.95L