Chung Tat Sing v Raniga [2005] FJHC 700; HBC0214.2001L (25 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0214 OF 2001L

BETWEEN:

CHUNG TAT SING
Plaintiff

AND:

PRADHUMAN RANIGA
f/n Mohan Lal
1st Defendant

AND:

MOHAN LAL & COMPANY LIMITED
2nd Defendant

Ms. S. Cevalawa for the plaintiff
Mr. J. Sharma for the defendants

Date of Hearing: 25 November 2005
Date of Ruling: 25 November 2005

EXTEMPORE RULING

The plaintiff by a Notice of Motion filed on the 13th September 2005 seeks an order that the defendant not dismantle the concrete staircase as shown on the plan approved by the Nadi Town Council until further order.

In support of the Notice of Motion the plaintiff relies upon an affidavit of Wah Hoon Yee sworn on the 24^th August 2005 and a further affidavit of Chung Tat Sing sworn on the 24^th August 2005.

The Motion is opposed and the defendants rely upon an affidavit of the 1^st defendant sworn on the 19^th October 2005. I have had the benefit of oral submissions from counsel for the parties together with written submission on behalf of the applicant/plaintiff.

The plaintiff has by Writ of Summons filed on the 20^th April 2004 sought an order restraining the defendants from interfering or hindering the plaintiff’s right to use the car park between Lots 1 and 2 in Plan SO 3795 and further an order for specific performance of the defendant register an easement to be shown on Plan SO 3795 and damages.

The plaintiff in his affidavit says that the defendant has threatened to demolish the concrete staircase and it is on the basis of this threat that the Motion is brought.

The 1^st defendant annexes to his affidavit a copy of the Plan SO 3795 which shows relevantly Lots 1 and 2 and the “Access Reserve and Car Park”. In the corner of that area is the small rectangle labelled “Conc Steps”.

The notations to the plan show under the heading “Memorandum of Easement” what might be described as an intention to create an easement over Lot 1 for the purpose of access reserve and car park The servient tenement of which is to be Lot 1, the dominant tenement of which is to be Lot 2. It would appear from that plan the concrete steps form part of the access reserve.

In the statement of claim it is pleaded that the plaintiff and defendant entered into various agreements resulting in respectively owning Lot 2 and Lot 1.

The plaintiff was led to believe that an easement would be created and would appear to be the easement referred to on Plan SO 3795 which I interpret to be an easement in favour of Lot 2 burdening Lot 1 for the purpose of access and car park.

The plaintiff submits that the defendant by his conduct is by virtue of the authorities has estopped from denying the right for the easement.

When considering the injunctive relief the starting point as the principles expressed in American Cyanamid v Ethicon Ltd [1975] UKHL 1; [1975] A.C. 396 where Lord Diplock said at page 406:

“The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved 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 were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where “the balance of convenience” lies.”

His Lordship went on to say at page 407:

“It is not part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit 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.”

On the material before the Court I am satisfied that there is a serious issue to be tried.

The claim is pleaded for, inter alia, specific performance and accordingly I think it reasonable to conclude that in those circumstances damages are not or may not be an adequate remedy.

The plaintiff gives an undertaking as to damages and supports that undertaking by paragraph 8 of his affidavit of the 24^th August 2005 by evidence that the motel operating on the top floor of the premises has a value of about $600,000.00. I am satisfied that the undertaking is in the circumstances of value.

There is nothing before the Court to show that there is any impact on the defendants by the retention of the staircase until such time as the substantive action is determined and accordingly I am satisfied that the balance of convenience lies in favour of the granting of the relief sought and I therefore order that the defendants be restrained from dismantling the concrete staircase shown on Plan SO 3795 until further Order of the Court.

JOHN CONNORS
JUDGE

At Lautoka
25 November 2005