Air Pacific Ltd v Airports Fiji Ltd [2004] FJHC 372; HBC0418.2003L (23 February 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0418 OF 2003L

BETWEEN:

AIR PACIFIC LIMITED
Plaintiff

AND:

AIRPORTS FIJI LIMITED
Defendant

Counsel for the Plaintiff: Mr. Chen Bunn Young
Counsel for the Defendant: Messrs K. Vuataki & K. Qoro

Date of Hearing: 17 February 2004
Judgment Delivered: 24 February 2004

JUDGMENT

Application

The plaintiff seeks by way of Summons and order restraining the defendant from dealing with offices 19 and 20 on the ground floor of the arrivals concourse at the Nadi International Airport. The matter first came before Byrne J. on 1 December 2003 when Orders were made restraining the defendant from dealing with the premises until further order of the Court.

The plaintiff pleads three causes of action. The first is founded on breach of representation that the defendant would in good faith deliver a written agreement in respect of the tenancy of Offices 19 and 20 to the plaintiff for signing.

Secondly that the defendant induced the plaintiff into assuming that it would lease offices 19 and 20 to the plaintiff and is therefore estopped from denying the existence of an agreement.

Thirdly, the defendant is guilty of misleading and deceptive conduct contrary to section 54 of the Fair Trading Decree.

Background

To enable renovations to be carried out to Nadi International Airport, the plaintiff’s premises were relocated from the ground floor concourse to the first floor. In about March 2003, the defendant advised the plaintiff that the office allocations in the arrivals concourse were completed and that the defendant was offering the plaintiff offices numbered 19 and 20 on the ground floor at the arrivals concourse.

The proposed tenancy agreement was for a period of ten years to commence on 1 June 2003.

The Evidence

The plaintiff relies upon the affidavits of Gemma Kwong sworn on 28 November 2003 and 11 February 2004.

The defendant relies upon an affidavit of Fane Kamikamica sworn on 15 January 2004.

In addition to the evidence referred to the court has had the benefit of written submissions filed by counsel for the plaintiff and counsel for the defendant.

The Issues

Principles applicable to the granting of the injunction and the considerations the court must make a, clearly expressed in American Cyanamid v. Ethicon Limited [1975] UKHL 1; [1975] A.C. 396 page 46 Lord Diplock said: -

“The object of the interlocutory injunction is to protect the plaintiff against the injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty will resolve in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty will resolve in the defendant’s favour at the trial. The Court must weigh one need against the other and determine where “the balance of convenience” lies.”

On page 407 Lord Diplock said: -

“It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavits as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. One of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the grant of interlocutory injunction was that “it aided the court in doing that which was its great object viz. abstaining from expressing any opinion upon the merits of the case until the hearing”: Wakefield v. Duke of Buccleugh (1865) 12 L.T. 628, 629. So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.”

It is upon this basis that the Court considers the application before it.

The fundamental requirements might be summarized as: -

1. Are damages an adequate remedy?
2. Is there a serious question to be tried?
3. Where does the balance of convenience lie?
   

Serious Issue to be Tried

There is clearly a serious issue to be tried based upon the affidavit material upon which the parties rely. For the reasons stated above, it is not encumbent on the court at this time to look in depth at that material or at the arguments that flow from it. It is suffice for the court to be satisfied that there in fact a serious issue to be tried.

The claim and counterclaim with respect to the creation of a tenancy with respect to premises 19 and 20 and the terms of that tenancy together with the allegations made by the plaintiff of misleading and deceptive conduct contrary to Section 54 of the Fair Trading Decree on the part of the defendant are in themselves sufficient to satisfy the Court that there is in fact a serious issue to be tried.

A Damages and Adequate Remedy

Whilst it would appear from the material filed that damages may be a remedy, it is the opinion of the court that damages may not be an adequate remedy in the circumstances. The plaintiff seeks the occupation of premises 19 and 20 on the ground floor of the arrivals concourse at Nadi International Airport, as it requires an appropriate prominence as the national carrier at the main International Airport of the country.

Should it be deprived of occupation of these premises, it is difficult to see that damages, if they were capable of assessment, would in fact be an adequate remedy for the loss of profits or loss of business that may flow as a result of that deprivation.

Balance of Convenience

The evidence before the Court suggests that the defendant has granted some form of occupancy to another tenant, Sharma’s Car Rental, with respect to premises 19. The term of this tenancy whilst being unclear from the evidence appears to be until about March 2004. This is based upon the receipt annexed to the affidavit of Fane Kamikamica which describes the payment therein referred to as being “concession rental from 13/11 – 12/3/04”.

If the premises are leased to someone other than the plaintiff then it would seem that it would become impossible for the plaintiff to ultimately at trial obtain that which it seeks i.e. the right to occupy premises 19 and 20 in accordance with the terms of the alleged agreement between the plaintiff and the defendant.

To enable there to be some ultimate purpose to the litigation having found that there is indeed a triable issue, it appears that the balance of convenience must require that the premises be available for the plaintiff in the event that the plaintiff is successful at the hearing of the substantive matter.

Conclusion

For the reasons stated above, I am of the opinion that it is not necessary or proper for the court at this point in time to embark upon a detailed analysis of the law applicable to the issues raised by the plaintiff. It is suffice that the court be satisfied that there is in fact a triable issue. The court is so satisfied based upon the untested affidavit material that has been filed and the submissions of counsel.

Damages, for the reasons stated may not on the hearing of the substantive matter be an adequate remedy and it follows that the balance of convenience lies in favour of the plaintiff to preserve the premises dependent upon a hearing of the substantive matter and a consideration of the law applicable to the issues.

Orders

1. The defendant be restrained whether by its servants or agents from howsoever dealing with Offices 19 and 20 comprising of 599.3 sq. feet situated on the ground floor of the Arrivals Commercial Concourse at Nadi International Airport or any part thereof including (but not limited to) selling or leasing or parting with possession or granting a licence to any third party until further Order of the Court.
   

2. Costs to be costs in the cause.

JOHN CONNORS
JUDGE

AT LAUTOKA
24 FEBRUARY 2004