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This is an application to dissolve an injunction restraining the Defendant from proceeding with a mortgage sale in respect of property
atvNative Lease No. 17638 in Labasa and in respect of motor vehicles and chattels which are under Bill of Sale to the Defendant.&n
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On 14th December 1999 I refused to grant an interim injunction ex parte basis and ordered that the application be heard iard inter parties
on 15th December after the Plaintiff had filed a writ of summons and a copy of the mortgage document.
When the matter was called on 15th December 1999, the Defendant did not appear and the injunction was granted. It now appears that thendafendant Company was served
only 15 minutes before the matter was heard in chambers.
This application is made by motion, supported by t by the affidavits of Virendra Singh sworn on 20th December 199isi Ledua, sworn on 21st December 1999 and a further affidavit of Virendra Singh sworn on 29th December 1999.
The facts of the case as disclosed by the affidavit of Hirdesh Chand Da support of the application for an injunction, sworn on 13th December are that that the Plaintiff had an agreement with the Defendant to sell Shell products on credit. The securitythe credit
wast was the property which is the subject of this application. The value of the pro and cand chattels exceeds $200,000. By 14th December 1999, the Plaintiff n arrears on the account tont to the tune of $51,774.48 On 27th November 1999, the Defendant advertised the properties for saleender. The Plaintiff was arrangltg alternative financinancing with
another bank and moved the court to grant an injunction restraining sale.
In his submissions Mr.I.Razak for the Defendant submitted that se of the inter parties motion was late, and that the motion was in
fact heard ex parte.&nbs. Heitted that the Plaintiffntiff should have deposited the amount owed to the Defendant into court, that
the Plaintiff had failed to disclose the defaults of his dt in payment, and that attempts at financing had failed.&nbd. I submitted
that on these hese grounds the injunction should be dissolved.
Mr. R. Chand for the Plaintiff, agreed that there were no good groundsnot dissolving the injunction but suggested that dissolution
should be stayed for a month tnth to allow the plaintiff to re-finance elsewhere. He further said non-discloisclosure of the nature
of arrears in payment was innocent and should not be seen as an attempt to mislead the court.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The relevant principles for the grant on dissol of an injunction are well-settled. If there is a serious question to be tried, the
cthe court must consider whether the parties can be adequately compensated in damages, and where the balance of convenience lies.
The Deft says that the wf e wf summons fails to dito disclose a serious question to be tried. The Plaf concedes that bott both
parties can be adequatempensin damages.
In the circumstances, I see no reason to allow this injunction to nue, particularly when the Plaintiff is not in a position to deposit
the undisputed amount ount of $51,774.48 into court.
Furthermore, I find the Plaintiff’s reticence as to the nature of his arrears in paymend his denial of being in default of payment
in paragraph 8aph 8 of his affidavit, to be a material non-disclosure. A material isclosure is a is a ground on its own for the
dissolution of an injunction. This is so no matte innocennocent or inadverten-disclosure might be (Dalglish v Jarvie [1850] EngR 688; (1850) 2 Mac & G 231)
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