Counsel: Plaintiff in person
Patel for Defendantspan>
Hearing: 22nd March 2000
Decision: 27th March 2000
DECISION
This is an application by the Plaintiff to restrain the Defendant from proceeding with distress for rent in respect of rental arrears
at shop premises in Cumming Street, Suva.
The application, which was supported by the affidavit of Asumar, was heard inter partes. The Defendant filed the affidavit of Pravin
Chandra, sworn onrn on 16th March 2000. The Plaintiff filed a reply.
The writ of summons claims that the Defendant and the Plaintiff h arrangement under which the Plaintiff rented the Defendant premises
at Cumming Street. The. The Plaintiff claims that he overpaid the Defendant’s rental to the tune of $16,260.77, and that the Defendant
has now unlawfully proceeded to levy distress for arrears.
The facts that emerge from the affidavits before me, are that the partiesa written tenancy agreement which expired in December 1992.1992.
The rental was $357.87 per month.
The Plaintiff continued to occupy the premises paying the Defendant $522.00 per month until 1994. From 1994 hd the Defendant $550.00.
On0. On some occasions he paid less, but later made up for the monthly amount of $522.00 or $550.00. The Plaintiff claims that he
was regularly over-paying the Defendant by over $165.00 a month. He claims he did this of his own free will.
The Defendant says that the agreement was that the Plaintiff should pay 00 per month from 1992, and $550.00 from 1994. The Defendant
says the Plaintiff did not ovet over-pay him, and that he does not owe the Plaintiff any money at all.
At the hearing of this application the Plain who appeared in person, submitted that there was a serious question to be tried on the
base basis of these facts. However he conceded that damages were an adequate remedy for his claim.
Mr Patel, for the Defendant submitted that since damages were an adequate remedy, an injunction was not appropriate.
The principles governing the grant or otherwise of an injunction are well-settled. The first question is whethere is a serious question
to n to be tried, the second is whether damages would be an adequate remedy for each of the parties, and the third is whether the
balance of convenience favours the grant of an injunction.
In this case, there is a dispute about the rental owed by the Plaintiff to the Defendant. In the absence of a written agree it is
clear that the issueissue of the terms of the agreement, will depend on the credibility of witnesses at the substantive hearing.
However, a perusal of the receipts of rent - annexed to the affidavit of the Plaintiff, shows that the Plaintiff was making regular
payments of $522.00 and of $550.00 “for rent” for named months. The receipts do not show that the Plaintiff was paying in excess
of what was owed. In fact, on those occasions when part-payments were made, the Plaintiff was making payments later to make up the
balance to either $522.00 or $550.00. The evidence indicates that the parties had agreed that the monthly rental was $522.00 and
$550.00 after 1994. The Plaintiff was unable to explain why the receipts did not reflect excess payments.
The applicant does not have to show a prima facie case, only that his claim is not frus or vexatious. (Philip Morris (NZ) Ltd. v. Ligget Mget Myer Ltd. (1977) 2 NZLR 35. Although the receipts tendered appear to contradict the Plaintiff’s claim, the issue is ultimately one of credibility at the trial.
I am therefore unable to say that this claim is a clearly frivolous one.
However, although there is a serious question to be tried, the Plaintiff agrees that he can be adequately compensated in damages in
respect of his claim, and for any loss as a result of distress. It is clear from the nature of this claim that the Plaintiff’s remedy,
if he succeeds, is in damages.
I therefore refuse the application. Costs are in the cause.
ass=MsoNormal style="margin-top: 1; margin-bottom: 1">
Nazhat Shameem
JUDGE
At Suva
27th March 2000n>
Hbc0105d.00s
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