BA Town Council v Ghimli Fashion (Fiji) Ltd [2007] FJHC 10; HBC222.2005 (5 April 2007)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 222 OF 2005

NO. 43 OF 2007

BETWEEN

BA TOWN COUNCIL
Plaintiff

AND

GHIMLI FASHION (FIJI) LIMITED
Defendant

Appearances: A. K. Lawyers for plaintiff
Fa & Co. for defendant

Date of Hearing: 5 April 2007
Date of Decision: 5 April 2007

Decision

[1] By summons dated 30 March 2007 the defendant applied to set aside the orders made against it on 12 August 2005. The application is defective in that the said orders were made on 2 December 2005 and the defendants earlier summons of 12 October 2005 for the same relief as the present summons was dismissed on 2 December 2005. At the hearing earlier today, Mr. Isireli Fa for the defendant submitted that the application is for variation of the orders made on 2 December 2005 as contemplated by order (3) of Mr. Justice Connors ruling of that date. In his ruling, granting the injunction sought by the plaintiff, Justice Connors made the following order:

"(3) The defendant be at liberty to apply on 7 days notice for a variation of these orders to facilitate the sale of any of the parcels of real estate subject to the proceeds of sale being paid into Court".

[2] I have treated the present application as having been brought pursuant to said order (3) above and have amended the present application to that extent.

[3] The application is urgent. The defendant has executed Sales and Purchase Agreements in respect of the properties subject to injunction. Transfers have been executed and the defendant requires the uplifting of the injunction to complete settlement. There is a risk that the purchaser may resile from it’s agreements with the defendant.

[4] The plaintiff does not object in principle to the orders sought for variation so long as the proceeds of sale for CL 13444 in the sum of $850, 000.00 are paid into Court. Mr. Fa submitted that the plaintiff is only entitled to be secured for the alleged loss of rental in the sum of $140, 000.00 plus costs of between $10,000.00 to $20,000.00. He submitted that I ought to re-consider the balance of convenience given how little has transpired between the granting of the orders and the present application. I agree. The issue is simply how much of the proceeds of sale be paid into Court.

Consideration

(i) After obtaining the injunctions, the plaintiff sat on its hands for some 7 months. No action was taken to advance the claim further until the plaintiffs summons for directions dated 20 July 2006. A further 6 months was allowed to pass before the plaintiff filed its affidavit verifying list of documents. Having obtained injunctive relief, the plaintiff was required to take steps promptly to move the action to trial. It did not.

(ii) Not only did the plaintiff drag its feet, the affidavit of documents does not disclose any documentation relating to the claim for damages for alleged alteration in the sum of $450,000.00. There are no plans, approvals, costing, invoices etc. disclosed in regard this claim.

(iii) The plaintiff’s contention would put it in a position of a secured creditor. The plaintiff is surely not entitled to be put in that position.

iv) In balancing where the justice lies, the prejudicial impact to the defendant in being prevented from dealing with its assets far outweighs the injustice to the plaintiff in terms of the amount the plaintiff insists be paid into Court. The balance of convenience lies in favour of the defendant given my conclusions at (i), (ii) and (iii) above.

Orders

i) Orders granted on 2 December 2005 varied to the following extent. Order 1 is dissolved to facilitate the sale of the properties contained in CL 13444, CT 12777 and CT 12670 subject to the condition that the defendant pay into Court, the sum of $260, 000.00 within 24 hours of settlement of the sales in respect the properties.

Breakdown

• $140, 000.00 alleged rent due
• $20, 000.00 legal costs
• $100, 000.00 for the alleged alteration claim and general damages
  

ii) Costs of application be costs in the cause.

iii) Monies deposited into Court to remain until further order of the Court.

Note

Mr. I. Fa gave an undertaking that $260, 000.00 will be paid into Court within 24 hours of settlement.

Gwen Phillips
JUDGE

At Lautoka
5 April 2007