Pacific Expo (PCG) Ltd v Vuibau [1998] FJHC 181; Hbc0115.96s (28 April 1998)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 115 OF 1996

BETWEEN:

PACIFIC EXPO (PCG) LIMITED
Plaintiff

and

KARAI VUIBAU
Defendant

M. Young for the Plaintiff

DECISION

This is an ex-parte application for a Mareva injunction and a Writ ne exeat civitate.

Judgment in default of pleadings was entered against the Defendant on 24 July 1997 in the sum of $96,498.64 with interest and the judgment debt remains unsatisfied.

Two affidavits were filed in support of the application. From this evidence it is clear that the Defendant is possessed of assets in Fiji. What however has to be asked is what evidence has been presented to show either that the Defendant is likely to dissipate those assets or to leave Fiji in order to defeat the effect of the Judgment.

Paragraph 4 of the affidavit of Marie Chan, Solicitor, filed on 14 April 1998 reads:

"I am informed by a reliable source in Lautoka and I verily believe that the Defendant is poised to exit Fiji on a permanent or long term basis".

The second affidavit deposed by Ambassador Kaliopate Tavola merely repeats information provided by the Plaintiff's solicitor and does not add to the matter.

In answer to my question Mr. Young advised me that the "reliable source" was an unnamed bailiff who was not prepared to provide evidence in support of his view. I was not told where the Defendant was planning to move to, on what basis or for how long. Whether he was still the Managing Director of South Pacific Distilleries was not clear. I was not told whether his property had been advertised for sale. In short the fears expressed about the Defendant's intentions were virtually unsupported.

Mr. Young suggested that no harm would be done in granting the injunction sought and that furthermore the defendant was in no position to complain: he had persistently avoided all attempts to secure payment of the debt. That however is not the law. The Court will not lightly grant such an injunction when, if granted unjustly incalculable damage to a Defendant might ensue (see Third Chandris Corp v. Unimarine S.A., [1979] QB 645; [1979] 2 All ER 972)

It is now established that unsupported statements or expressions of fear of departure or dissipation carry little weight (O'Regan v. Iambic Productions Ltd. (1989) 139 New. L.J. 1378 D.C.) On the evidence before me I accept that Ms. Chan may fear that the Defendant is about to depart but I am not satisfied on the balance of probabilities that that fear is well founded and that a "real risk" has been established.

As to the Writ it has been held that such a writ cannot be issued for the purpose of enforcing a Mareva injunction. The Writ is available for the purposes of assisting the prosecution of an action not as a remedy in aid of execution (see Allied Arab Bank Ltd v Hajjar [1987] 3 All ER 789).

The application fails and is dismissed.

M. D. Scott
Judge

28 April 1998

HBC0115.96