Kumar v Kumar [2005] FJHC 305; HBC0375.2004 (12 December 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0375 OF 2004

BETWEEN:

SUSHILA DEVI KUMAR
daughter of Appa Rao of Surrey, Canada, Self Employed as the sole
Executrix and Trustee of the Estate of Sunit Kumar
son of Ram Naresh late of Lomaiwai, Sigatoka, Business.
PLAINTIFF

AND:

HITESH KUMAR
son of Ram Piyare of
Shop 4, Kellapan Arcade, Ratu Mara Road, Nabua, Suva Businessman.
DEFENDANT

Messrs M K Sahu Khan & Co for the Plaintiff
(City Agents S B Patel & Co)
Messrs Babu Singh & Associates for the Defendant
(City Agents S B Patel & Co)

Date of Hearing: 30 November 2005
Date of Ruling: 12 December 2005

INTERLOCUTORY RULING OF FINNIGAN J

This is an interlocutory application for Interim Relief by a Plaintiff who has commenced an action for a sum of money. The nature of the relief sought is (partly) mareva injunction.

The Plaintiff as Executrix and Trustee of the estate of her late husband claims in her action $31,000.00 and interest thereon as money belonging to her late husband which she claims has been taken by the Defendant. She seeks also damages. In his Statement of Defence the Defendant asserts that the money is his. He pleads also a counterclaim alleging fraud by the Plaintiff. The pleadings are less then perfect but the nub of the matter is ownership of a business called Canwin Marketing Services.

The Interim Relief:

The Plaintiff seeks five separate orders being (in brief);

(a) An order that the Defendant give a full and detailed account of money he has withdrawn from the business,

(b) An order that the Defendant give a full inventory of purchases made with monies he has withdrawn from the business,

(c) An order restraining him from disposing of any of his real or personal property until further order of the Court,

(d) An order restraining him from transferring any of his chattels until final determination of the action, and

(e) An order restraining him from transferring or deposing of another (named) business which he owns.

At first glance the application seeks only to obtain security for the Plaintiff. Counsel on her behalf however makes the point in detailed submissions that the Plaintiff makes out a case that the Defendant, a potential judgment debtor, might on the affidavit evidence commit “the abuse of dissipating or hiding assets that the judgment creditor might lawfully attach for the purpose of satisfying a judgment given, or likely to be given, in her favour”. He makes the point that if one or more of the orders are made then they are made against the Defendant personally and not by way of attachment of any of his assets.

The only question is whether on the balance of probability the Plaintiff is in any different position from any other Plaintiff who is suing for money.

Counsel for the Defendant has also filed a very good submission. Basing his argument on American Cyanamid –v- Ethicon Ltd (1875) AC 396. He submits that there is a serious issue to be tried, particularly that raised by the Defendant’s counterclaim, that the Defendant has shown ample means to pay if the remedies is refused and later the Defendant is shown to be liable for damages therefrom, and that the balance of convenience is against interim relief.

Conclusion:

In my opinion the Plaintiff has made out a case for interim relief. She resides in Canada far from Fiji where the money is. The Defendant has pleaded a positive case and will set out to prove that he is the owner and beneficiary of Canwin Marketing Services. Nonetheless until that happens he does have the advantage of altering his position to his advantage if he is so minded. The situation is fluid and his pleadings (apart from the point that I have mentioned) are far from clear. His affidavit is clearer but it only highlights the issues raised by the Plaintiff. He goes so far as to claim that he is unable to keep up a loan repayment for which is liable. His affidavit does highlight the Plaintiff’s concerns.

Therefore there will be interim relief but not all that the Plaintiff seeks. In respect of applications (a) and (b), she may seek further and better particulars or issue interrogatories. Applications (c) and (d) are an unreasonable restriction upon the Defendant.

I take note of the submission of Counsel for the Defendant that the business named in application (e) has no direct connection to the subject matter of the Plaintiff’s claim. It has however been put in issue by the Defendant in his affidavit and can be made subject to an interim order.

I therefore make the following interlocutory order;

The Defendant is restrained from transferring or disposing of both and either of the businesses known as Canwin Marketing Services and Nabua Fast Food Kona until further order of the Court.

I fix costs on this application in favour of the Plaintiff at $300.00.

D.D. Finningan
JUDGE

At Lautoka
12 December 2005