Newmart Autosales Ltd v Credit Corporation (Fiji) Ltd [2005] FJHC 77; HBC0341d.2004s (18 April 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 341 OF 2004

Between:

NEWMART AUTOSALES LIMITED
Applicant/Plaintiff

and

CREDIT CORPORATION (FIJI) LIMITED
Respondent/Defendant

Mr. M. Raza for Plaintiff
Mr. N. Shivam for Defendant

DECISION

By motion the plaintiff seeks various orders, inter alia, an injunction restraining ‘the defendant/Respondent or their agents and/or servants whosoever from proceeding any further with the tender advertised on the 31st day of July 2004 until further order’ of this Court; that; ‘an independent inspection by an independent and authorized Caterpillar Company be carried out to verify the true identity of the said D4D Caterpillar logging winch Bulldozer’; that upon the report being in the affirmative, the said Caterpillar be released to the plaintiff forthwith; and the Police assist the plaintiff to take possession of the said caterpillar.

On 11 August 2004 the Court made an order restraining the defendant from proceeding any further with tender advertised on 31 July 2004 until further Order of this Court.

On 27 September 2004 when the case was called before me the parties were trying to settle the matter. An order was made for defendant to file an affidavit in Reply within 14 days. On 8 November parties said they are still settling but further time was given to the defendant to file affidavit in response. By 6 December there was no settlement and counsel agreed to file written submissions, the plaintiff filed its submission on 21 December 2004 but defendant filed its on 15 March 2005 after a reminder from Court.

Consideration of application

I have before me for my consideration written submissions from both counsel. Due consideration has been given to them.

Before I deal with the application I would like to mention that the state of pleadings in this action is that a Statement of Defence has been filed.

Because there was no affidavit in response and submissions filed by the defendant despite Court Orders to do so, the learned counsel for the plaintiff filed his submission stating to the effect that the plaintiff’s affidavit has remained totally unchallenged. Therefore it says that an order be made with costs that the said caterpillar be returned to the plaintiff forthwith.

Upon reading the pleadings in this action and the affidavits filed in the present application as well as the written submissions I am of the view that the issue cannot be decided without the trial of the action in Open Court with oral evidence. The affidavit evidence will not suffice.

Order

For these reasons the plaintiff’s application is refused and is dismissed with the said order for interim injunction to remain until further order of this Court. The costs are to be costs in the cause. Now that Statement of Defence has been filed the parties shall proceed with due diligence and have the action entered for trial as soon as possible.

D. Pathik
Judge

At Suva
18 April 2005