Anabels Ltd v Avon Investments Ltd [1997] FJHC 77; Hbc0138d.98s (27 June 1997)

Fiji Islands - Anabels Ltd v Avon Investments Ltd - Pacific Law Materials

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 138 OF 1996

BETWEEN:

ANABELS LIMITED
Plaintifintiff

ANpan>

1. AVON INVESTMENTS LIMITED
2. NATIONAL MBf FINANCE (FIJI)br> Defendants

Mr. M. Raza for the Plaintiff
Mr. Anil Tikarr the First Defendant
Mr. V. Kapadia for the Second Defd Defendant

DECISION <1"> There are twoons before the Court, namely, one by the plaintiff and the other by the second defendant.

The Plaintiff's Motion seeks an injuncteeking orders as follows:

That the First and Second Defendants and each of them acting by and through their respective servants, employees and agents be restrained until the hearing of this action or other order

(i) from preventing the Plaintiff entering the premises and conducting its restaurant business therefrom and

(ii) from interfering with the Plaintiffs peaceful enjoyment of the ses and in particular the cthe conduct of its restaurant business therefrom and

(iii) from enteringPremises for any purpose other than as customers of the saie said restaurant business and

(iv) frooving or other disposing of any of the Plaintiffs equipmentpment of other chattels on the premises and

Whereas the Second Defendant seeksnjunction and prays for orders as follows:

1. THAT the the Plaintiff and the First Defendant and each of them acting by and through their respective servants, employees and agents be restrained from interfering, removing and or otherwise disposing of any of the chattels and equipment situated at 59 Gordon Street, Suva in premises occupied by the Plaintiff trading as Scotts Restaurant subject to the Lease Agreement dated 24th May, 1994 and the Bill of Sale dated 19th December, 1994 granted by the Plaintiff in favour of the Second Defendant.

2. THAT the Second Defendant be allowed to remove and dispose of all of the said chattels and equipment the subject of the Lease Agreement dated 24th May, 1994 and the Bill of Sale dated 19th December, 1994 granted by the Plaintiff in favour of the Second Defendant.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Background

The Plaintiff has issued Writ of Ss against the first and second defendants seeking: (1) a declaration that distress for rent rent made by D1 on 30 March 1996 against the Plaintiff is invalid, (2) that D2's entry into and taking possession of the Plaintiff's leased premises is unlawful and (3) injunction restraining D1 and D2 from entering the leased premises, interfering with Plaintiff's peaceful enjoyment of the premises, from entering the premises, from removing the Plaintiff's equipment or other chattels and such consequential relief as will protect the Plaintiff's interests in the circumstances.

The injunction sought by the Plaintiff is particularly against D2; and Dthough it has filed the affe affidavit, it is not seeking any order in these interlocutory proceedings. The Plaintiff does not want D2 to interfere with the Plaintiff's operation of its restaurant business at 59 Gordon Street, Suva ("the premises") and from entering the premises and removing and otherwise disposing of the Plaintiff's equipment or chattels including any equipment or chattels still remaining on the premises and being the subject of a certain Lease Agreement dated 24 May 1994 ("the Lease Agreement") and a certain Bill of Sale dated 19 December 1994 (the "Bill of Sale") made between the Plaintiff and D2.

The D2 on the other hand is countering by seeking orders to enter the premises without interferencremove and dispose of certacertain equipment and chattels the subject of the Lease Agreement and Bill of Sale.

The Plaintiff has filede affidavits, the D1 one affidavit and D2 two affidavits.

The Plaintiff and D2 have filed written submissions and I have considerem.

The Plaintiff's submission

The Plaintiff alleges that D2 unlawfully seized and removed certain "equipment" her chattels of the Plaintiaintiff in excess of D2's claim. Although the Plaintiff is now back in possession and is operating its restaurant it has suffered considerable loss of business because of D2's unlawful actions. It says that chairs valued at $100,000 have been removed by D2.

The Plaintiff submits that status quo remain until the hearing of the substantive action. It says that on the authority of AMERICAN CYANAMID CO v ETHICON LTD [1975] UKHL 1; (1975) A.C. 396 it ought to be granted an injunction. It says that there is a serious question to be tried; it says that damages would not be sufficient in this case.

Second Defendant'sission

Under certain Lease Agreement dated 24 May 1994 with the Plaintiff, D2 leased various refrigerator, air conditioning and kitchen equipment to the Plaintiff. There was also a Bill of Sale over various chattels. The Plaintiff defaulted in its repayments under these agreements and a bailiff was instructed to seek repossession of all the items the subject of agreement and Bill of Sale. The arrears as at 20 March 1996 was $69,338.86. The D2 says that it had removed certain dining chairs only before being stopped by Security Guards brought in by Plaintiff.

The D2 says that the Plaintiff is in considerable arrears and that it has a cleght to repossess the chattehattels and equipment as no payment whatsoever is being made by the Plaintiff to it pursuant to the Lease Agreement and Bill of Sale.

Mr. Kapadia submits that damages will not be an adequate remedy as the Plaintiff is unable to pay its rent to D1 and the Lease payment to D2. He argues that D2 should be able to rely on its contractual documents and take possession of the equipment otherwise "commercial confidence in entering into such transactions would suffer where Leases such as the Plaintiff carry on the business with impunity by not paying any instalment under the Lease Agreement for considerable period of time."

Consideration of the issue

I have given careful consideration to the affidavit evidence adduced and to titten submissions of both coth counsel.

The first defendant, who is the landlord of the premises occupied by the Plaintiff, is not act involved in these interlocerlocutory proceedings.

It is not denied that about 19 December 1994 the Plaintiff gave Bill of Sale to D2 various chattels. The D2 isD2 is entitled to payments under it and the Plaintiff has defaulted in payment. Therefore, D2 had to exercise its powers which it was entitled to; and although the Plaintiff says that goods in excess of what is actually owed has been seized by D2, the Plaintiff can pursue its claim in the action itself. The D2 would be able to pay any damages that is awarded against it.

On the affidavit evidence before me and in view of the Bill of Sale in D2's favour I cannot see any justification whatsoever for preventing D2 from exercising its powers under the said Bill of Sale.

This is not an appropriate case in which an interlocuinjunction ought to be granted to the Plaintiff. The Plaintlaintiff is bound by the terms and conditions of the Bill of Sale and I am not convinced that D2 should be prevented from exercising its powers under the said document. To protect its security the mortgagee is free to exercise its powers as mortgagee in accordance with the provisions of the Bill of Sale when, inter alia, there has been a default in payment thereunder.

In this context I adopt the words of FATIAKI J in NATIONAL BA FIJI and ABDUL KADEER KUDD KUDDUS HUSSEIN s/o Kadir Hussein (C.A. 331/94) at p.6 when he said:

&qurthermore if the plaintiff bank were required to await the outcome of the defendant's claimclaim in Civil Action No. 97/92, the Court would, in learned counsel's submission, in effect, be restraining the bank from exercising its powers and rights as a mortgagee without the usual protection afforded a mortgagee under such an order i.e. by payment into Court of the amount claimed by the bank."

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> As was said by LORD DIPLOCK in AMERICAN CYANAMID case (supra) at p.407 that:

p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> "... The Court no doubt must be satisfied that the claim is not frivolous lous or vexatious; in other words, that there is a serious question to be tried".

I do not see that there is a serious question to be tried except for the allon that "gears&quos" worth in excess of the amount due has already been seized. Be that as it may, the Plaintiff can still pursue its claim without the need for an injunction. The balance of convenience lies in the refusal of the stay.

In the me, for the above reasons the Plaintiff's motion seeking an injunction against the second dond defendant is refused. However, the second defendant's motion is allowed with costs which is to be taxed if not agreed.

D. Pathik

At Suva
27 June 1997

Hbc0138d.98s