Dass v Shell Fiji Ltd [2000] FJHC 4; Hbc0591d.99s (13 January 2000)

Fiji Islands - Dass v Shell Fiji Ltd - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO: HBC 591 OF 1999

BETWEEN:

HIRDESH CHAND DASS

Plaintiff

AND:

SHELL FIJI LIMITED

Defendant

COUNSEL: Mr. R. Chand for Plaintiff

Mr. I. Razak and Ms. S. Lateef for Defendant

Hearing: 11th January 2000

Judgment: 13th January 2000

DECISION

This is an application to dissolve an injunction restraining the Defendant from proceeding with a mortgage sale in respect of property at Native Lease No. 17638 in Labasa and in respect of motor vehicles and chattels which are under Bill of Sale to the Defendant.

On 14^th December 1999 I refused to grant an interim injunction on an ex parte basis and ordered that the application be heard inter parties on 15^th December after the Plaintiff had filed a writ of summons and a copy of the mortgage document.

When the matter was called on 15^th December 1999, the Defendant did not appear and the injunction was granted. It now appears that the Defendant Company was served only 15 minutes before the matter was heard in chambers.

This application is made by motion, supported by the affidavits of Virendra Singh sworn on 20^th December 1999, Alisi Ledua, sworn on 21^st December 1999 and a further affidavit of Virendra Singh sworn on 29^th December 1999.

The facts of the case as disclosed by the affidavit of Hirdesh Chand Dass in support of the application for an injunction, sworn on 13^th December are that the Plaintiff had an agreement with the Defendant to sell Shell products on credit. The security for the credit was the property which is the subject of this application. The value of the property and chattels exceeds $200,000. By 14^th December 1999, the Plaintiff was in arrears on the account to the tune of $51,774.48 On 27^th November 1999, the Defendant advertised the properties for sale by tender. The Plaintiff was arranging alternative financing with another bank and moved the court to grant an injunction restraining sale.

In his submissions Mr.I.Razak for the Defendant submitted that service of the inter parties motion was late, and that the motion was in fact heard ex parte. He submitted that the Plaintiff should have deposited the amount owed to the Defendant into court, that the Plaintiff had failed to disclose the defaults of his default in payment, and that attempts at financing had failed. It was submitted that on these grounds the injunction should be dissolved.

Mr. R. Chand for the Plaintiff, agreed that there were no good grounds for not dissolving the injunction but suggested that dissolution should be stayed for a month to allow the plaintiff to re-finance elsewhere. He further said that non-disclosure of the nature of arrears in payment was innocent and should not be seen as an attempt to mislead the court.

The relevant principles for the grant on dissolution of an injunction are well-settled. If there is a serious question to be tried, the court must consider whether the parties can be adequately compensated in damages, and where the balance of convenience lies. The Defendant says that the writ of summons fails to disclose a serious question to be tried. The Plaintiff concedes that both parties can be adequately compensated in damages.

In the circumstances, I see no reason to allow this injunction to continue, particularly when the Plaintiff is not in a position to deposit the undisputed amount of $51,774.48 into court.

Furthermore, I find the Plaintiff’s reticence as to the nature of his arrears in payment, and his denial of being in default of payment in paragraph 8 of his affidavit, to be a material non-disclosure. A material non-disclosure is a ground on its own for the dissolution of an injunction. This is so no matter how innocent or inadvertent non-disclosure might be (Dalglish v Jarvie [1850] EngR 688; (1850) 2 Mac & G 231)

For these reasons I dissolve the injunction restraining the sale by the Defendants of the property at Native Lease No.17638 Lot 2 Plan M.2688, Motor vehicles CJ 167, BR 109, BV 752 and all chattels specified in the Notice of Motion of the Plaintiff dated 13^th December 1999. I see no reason to stay execution of this Order for one month to allow the Plaintiff to re-finance his loan. There is no evidence of any such further attempt before me.

The Plaintiff is to pay the Defendant’s costs which I set at $100.

Nazhat Shameem

JUDGE

At Suva

13th January 2000

HBC0591D.99S