Chandra v Ward [2005] FJHC 560; HBC0153.2005 (5 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0153 OF 2005

BETWEEN:

YOGESH CHANDRA
PLAINTIFF

AND:

STEPHEN PATRICK WARD
DEFENDANT

Mr V Mishra for the Plaintiff
Mr S Krishna (o/i) Mitchell, Keil & Associates for the Defendant

Date of Hearing: 24 June 2005
Dates of Submissions: 8 July, 22 July and 29 July 2005
Date of Ruling: 05 August 2005

INTERLOCUTORY RULING OF FINNIGAN J

On 2 June 2005 I made ex-parte orders extending a caveat and forbidding registration of dealings on a Certificate of Title. We are now at the stage of an inter-partes determination whether those ex-parte orders should remain in force.

As it happens, they expired at 4.00pm on 17 July 2005. There had been an inter-partes hearing earlier that day when the matter was adjourned for one week for the Plaintiff to file an affidavit in reply to that already filed by the Defendant. None was filed.

So, the position now is that the Plaintiff has let its ex-parte orders lapse and has filed no evidence since the affidavit he filed with the ex-parte motion. The parties have filed written submissions about what the Court should do next. The Plaintiff relies on the principles in American Cyanamid [1975] 1 All ER 505. For the Plaintiff, Counsel seeks re-instatement of the expired orders and continuation until determination of the substantive action. Counsel for the Defendant has filed a submission that not only did the ex-parte orders expire, but that the affidavit evidence shows that the order extending the caveat was too late to prevent its removal. He submits that there is no statutory provision for re-instatement of a removed caveat.

Decision:

I believe the starting point is the American Cyanamid test. Is there a serious issue to be tried, are damages an adequate remedy, and if not where does the balance of convenience lie?

There are several serious issues to be tried. Some of these are raised in the substantive claim and others are raised by the Defendant’s contention that the caveat has lapsed. I am unable to resolve the substantive issues on untested evidence. I have not been supplied with any authorities on the question whether the caveat has actually lapsed in the circumstances of this case and whether it can be re-instated if so. I am inclined to think that the Registrar is not bound to a strict 21 day limit and that if an extension is granted before he signs the memorial then the caveat would continue. This question however need not detain me because I am satisfied that on the second limb of the test the Plaintiff has no case for an injunction. If the Defendant is not prevented from proceeding as he wishes and if the Plaintiff is injured thereby, then his injury or loss in my view is well within the class of case where damages are an adequate remedy.

I therefore decline to re-instate the order extending the caveat and I decline to re-instate or make afresh any injunctive orders.

Costs on this interlocutory application are assessed in the Defendant’s favour at $500.00.

D.D. Finnigan
JUDGE

At Lautoka
05 August 2005