Dee Cee's Bus Services Ltd v Credit Corporation (Fiji) Ltd [2003] FJHC 102; HBC0480D.2000S (2 May 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0480 OF 2000

Between:

DEE CEE’S BUS SERVICES LIMITED
Plaintiff

and

CREDIT CORPORATION (FIJI) LIMITED
Defendant

Mr. D. Sharma for the Plaintiff
Mr. N. Arjun for the Defendant

DECISION

This is the defendant’s application by motion dated 28 January 2003 for an order that the interim injunction granted herein on 1 August 2001 be dissolved.

In support of the application affidavit by Uday Raj Sen, Business Development Manager of the defendant company was filed on 28 January 2003. To this Reginald Mohan, Company Director of the plaintiff company replied on 25 February 2003.

As ordered, both counsel made useful written submissions and I have given these my due consideration.

An interim injunction was granted herein on 8 December 2000 and varied on two occasions by me on 1st August 2001 and 6 December 2002. The Order of 1 August 2001 stated that ‘the interim injunction to continue until further order of this Court subject to’ certain conditions. One of the conditions was: ‘The Plaintiff to make regular monthly instalments on the 5 accounts with the Defendant amounting to $37,856.00 into Court at the end of each and every month with the first such payments on or before 31 August 2001 until further determination of the matter’.

The main ground for seeking dissolution is based on the fact that the plaintiff is in breach of the said order, particularly in failing to meet monthly payments of $37,856.00 into Court. It has failed to meet monthly payments for the months June to December 2002 and January to February 2003. Default was made before when the plaintiff consented to the continuance of the injunction until determination of the matter.

The defendant says that whilst the plaintiff enjoys the full benefit of the injunction the defendant is restrained from exercising one of its fundamental rights with the ‘asset purchase agreements’.

In these circumstances the defendant submits that the injunction ought to be immediately dissolved. The defendant’s counsel submits that the plaintiff is in contempt of the Court Order.

The plaintiff’s counsel admits in his written submission that ‘it (the plaintiff) has not been making regular payment’ but not out of ‘disrespect for this Honourable Court’. He has given reasons for not complying fully with the order of this Court. He says that the plaintiff ‘cannot afford to pay such a large sum of money into Court when its buses chronically need funds for repairs. Times have been really bad for bus companies and the plaintiff has had to spend monies for maintenance of its fleet of buses.’

The interim injunction was granted herein by consent until ‘further order’ or ‘until further determination’. One kind of ‘further order’ is an order discharging the injunction.

One obvious ground on which an injunction could be discharged is where the injunction was granted on terms and those terms have not been fulfilled. There is also another ground where the continuing effect of the injunction has become oppressive.

In this case there is blatant defiance of the said Court Order for regular monthly instalment payment. It is clear that the Order has not been fully complied with and if this is not a contempt of the said Order then what is it? It is submitted that it is not meant to show disrespect, then what is it? The plaintiff through its Director Reginald Mohan in his affidavit sworn 17 July 2002 says ‘we are not willing to pay any further monies unless and until the defendant produces copies of our contracts and sets out how it has calculated the extended contracts. ... There is no further need to make additional payments into Court’.

So long as there is the said Order, the plaintiff must comply fully with it until it is set aside. It ought to bear in mind the maxim that ‘he who comes to equity must come with clean hands’ and not while in flagrant violation of an injunction of this Court.

The order herein was made sometime ago. There was ample time for the plaintiff to press on expeditiously with the substantive action. It should as soon as possible have the action set down for trial now that pleadings are complete. The merits of the case can only be decided in the trial of the action.

For these reasons I grant the dissolution of the said interim injunction with costs to defendant in the sum of $400.00.

D. Pathik
Judge

At Suva
2 May 2003