Telecom Fiji Ltd v Campus Group Holdings Pty Ltd [2001] FJHC 161; Hbc0541d.1999s (24 May 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 541 OF 1999

Between:

TELECOM FIJI LIMITED
Plaintiff

and

CAMPUS GROUP HOLDINGS PTY LTD
Defendant

I. Fa for the Plaintiff
K. Bulewa for the Defendant

DECISION

This is an application by the Defendant (Campus) for an interim injunction to restrain the Plaintiff (Telecom) from entering the Defendants premises at 7 Statham Street Vatuwaqa or from “issuing any process on account of overdue rent until further order of the Court”.

Telecom is the owner of the land in question, Lot 2 on plan 1483. By an agreement in writing dated 1 March 1998 the parties agreed that Campus would take a lease of the land and the premises thereon for a period of 5 years commencing on 1 March 1998 at an annual rental of F$300,000.

Clause 10 of the Agreement is an arbitration clause. The clause specifies that a reference to arbitration shall not have the effect of suspending rental payments due under the agreement (see affidavit of Winston Thompson filed 17 February 00 – Exhibit A).

On about 30 August 1999 after a number of areas of dispute had arisen between the parties an arbitration agreement was drawn up (Exhibit G). A statement of agreed issues was also prepared (Exhibit D). By paragraph 22 of the agreement the parties agreed to discontinue two civil actions then pending in the High Court namely HBC 179/99 and HBC 221/99. Mr. Peter Knight was appointed the sole arbitrator (see Exhibit PK1 and PK 2 to the affidavit of Anare Cagi filed on 6 October 2000). On 13 September 1999 the parties agreed that the issues to be argued be reduced to 2, namely issues 3 and 5 in the original statement of agreed issues.

On 28 September 1999 the arbitrator published his award a copy of which is exhibited to the affidavit of Geoffrey Alister Old filed on 5 January 2000 in Civil Action No. HBC 6/00.

Action No. HBC 6/00 was commenced in January 2000. The principal relief sought was an order that Campus have leave to enforce the arbitration award.

On 10 February 00 Mr. Knight filed an affidavit in HBC 6/00 to the effect that it was his understanding that his award was interim to the extent that it was confined to the two issues argued before him. In his opinion the issues not yet dealt with by him remained for consideration and award if the parties so wished.

On 13 March 00 Mr. Thompson filed another affidavit in 6/2000 indicating Telecom’s wish to withdraw from the arbitration proceedings alternatively stating that the arbitration proceedings had “come to an end”.

On 22 March 00 I delivered a Decision refusing leave to enforce the arbitration award. On 14 November 00 an application by Campus to file a notice of appeal out of time against my Decision was dismissed by the Court of Appeal.

These proceedings were commenced by writ filed on 19 November 1999. An affidavit filed by Mr. Old on 8 February 00 exhibited a copy of the writ in action 221/99 which as has been seen was one of the two actions discontinued as part of the arbitration agreement. Comparison of the writ herein with the writ in 221/99 reveals that the cause of action and reliefs sought are substantially the same.

On 25 November 1999 Campus filed an application for the writ and Statement of Claim herein to be struck out on the ground that this action was an abuse of the process of the Court.

On 22 March 00 I ruled in favour of the application on the ground that this action amounted to an attempt to restore action number HBC 221/99 while the arbitration proceedings were still in train and despite the agreement that HBC 221/99 be discontinued. My order of 22 March 00 has not been appealed.

Given that the writ and Statement of Claim in this action have been struck out I am satisfied that this application for interlocutory relief must fail. This is because an interlocutory injunction may only be granted against a party to a cause or matter (RHC O 29 r (1)). Whether a party to arbitration proceedings is free to distrain for arrears of rent pending the conclusion of those proceedings is not a question which I am called upon to answer.

M.D. Scott
Judge

24 May 01