Vuksich & Borich (Fiji) Ltd v Controller of Customs & Excise [2007] FJHC 8; HBC001.2007 (30 March 2007)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 1 OF 2007

NO. 42 OF 2007

BETWEEN

VUKSICH & BORICH (FIJI) LIMITED
Plaintiff

AND

CONTROLLER OF CUSTOMS & EXCISE
Defendant

Appearances: Vasantika Patel for plaintiff
Legal Officer (FIRCA) for defendant

Date of Hearing: 19 February 2007
Date of Decision: 30 March 2007

Decision

[1] The summons which is before me asks for the following orders on behalf of the plaintiff:

(i) that the defendant and/or his servants or agents do forthwith release to the plaintiff, the plaintiffs motor vessel, namely one (1) Rayglass Legend 730 boat and trailer together with all its equipment, or alternatively,

(ii) that the plaintiff pay the sum of $57, 751-37 being import duty, VAT and fees into Court pending the outcome of the proceedings and upon such payment into Court the defendant and/or his servants or agents do forthwith release to the plaintiff the plaintiffs motor vessel, namely one (1) Rayglass Legend 730 boat and trailer with all its equipment, and

(iii) that the costs of this application be paid by the defendant.

[2] The application is supported by the affidavits of Mladen Matulic sworn on 29 December 2006 and 24 January 2007 and Meichael Bhinnu Jalam sworn on 24 January 2007.

[3] The application is strongly opposed. The defendant has filed three affidavits setting out grounds of opposition.

Background

[4] The plaintiff is engaged in the business of civil engineering. It is presently contracted to do civil engineering works including survey and reclamation works for the Momi Bay Marriott Hotel development project. The works required the use of a boat. In 2006, the plaintiff imported a Rayglass Legend 730 boat, trailer and associated equipment (the boat) for use on the said Momi Bay development project. The boat landed in Fiji in May 2006. The plaintiff was initially granted approval for Concession Advice on 2 June 2006. However on inspection of the boat, the defendant declined to release it and issued a Detention Notice under the provisions of Section 29 of the Customs Act. Arising from this, criminal proceedings for offences under the Customs Act have been commenced. These proceedings are pending in the Lautoka Magistrates Court.

The plaintiffs grounds

[5] The plaintiff contends that:

(i) the defendant has wrongfully detained the boat

(ii) the condition of the boat is likely to deteriorate given that it is being kept in the open in the defendants premises at Lautoka

(iii) the plaintiff has always been willing to pay the assessed duty, VAT and fees where no concession is granted

(iv) the initial approval granted by the defendant on 2 June 2006 still stands.

Consideration of application

[6] Having considered the competing affidavits, the pleadings and the respective submissions of learned counsel I have declined the orders sought for the following reasons.

(i) Mandatory injunction

The orders sought by the plaintiff are mandatory injunctions. In Locobail International Finance Limited –v- Agroexport[1]the English Court of Appeal quashed an interlocutory mandatory injunction, holding that the court must "feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted." The court adopted the relevant passage from Halsburys Laws of England, Vol. 24 (4th Ed.) para. 848:

"A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the Court thinks ought to be decided at once, or if the act done is a simple and summary one which can easily be remedied, or if the defendant attempted to steal a march on the plaintiff ........ a mandatory injunction will be granted on an interlocutory application."

[7] In the present application, the supporting affidavits do not disclose special circumstances. The material relied on does not show a strong probability on the facts that grave damage will accrue in the future if the orders sought are not granted.

[8] In my view, this is not a clear case warranting the grant of the injunctions sought. The plaintiff’s case does not meet the threshold of being unusually strong and clear.[2] I am also mindful that if the orders were made, the defendant would be deprived of its statutory right to forfeit any goods liable to forfeiture under the Customs Act.

(ii) Damages

The plaintiff has not established that damages will not be an adequate remedy. In the circumstances of this case, Customs and Tax issues being a normal occurrence in business, the mere assertion of business reputation being tarnished by the Detention Notice does not suffice.

(iii) The orders sought would amount to granting the substantive relief

The interlocutory orders sought reflect prayers 3 and 4 of the substantive relief sought. This application is not to preserve the status quo. The granting of the orders would defeat the exercise of the defendants extensive powers under Section 129 of the Customs Act. It has not been established that the defendant improperly or unlawfully exercised these powers. That is an issue to be determined at trial.

(iv) Defendant not bound

The plaintiffs reliance on the 2 June 2006 approval is misconceived. The Fiji Court of Appeal held in FIRCA –v- NZ Pacific Training Centre Ltd [3]and more recently in Punjas Limited –v- Punja & Sons Ltd & Commissioner of Inland Revenue[4] that statements made by officers or servants of the defendant do not bind the defendant. At paragraph 88 of the later case, the Court stated:

"........... Whether a plea of estoppel might be available against the "Executive" in the circumstances postulated by Mason J, it is well established tax law, as we have already stated, that it is not available against the Commissioner. He cannot be encumbered by any previous position which he had taken up. He must be free to exercise his judgment and discharge his statutory functions as and when he thinks proper. In short, he is entitled to change his mind and take up a new position and disavow one that he has taken up previously."

Conclusion

[9] In view of the above, I am satisfied the injustice that would be caused to the defendant if the plaintiff was granted the injunction and later failed at trial, outweighs the injustice to the plaintiff if an injunction was refused and the plaintiff succeeded at trial. The plaintiff has not adequately established a case for the granting of the orders sought.

Order

(i) Motion dated 29 December 2006 is dismissed with costs to be taxed if not agreed.

Gwen Phillips
JUDGE

At Lautoka
30 March 2007

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^[1] [1986] 1 All ER 901 at 906
^[2] Redland Bricks Ltd –v- Morris [1969] 2 All ER 576
^[3] Civil Appeal ABU 0085 of 2004S
^[4] Civil Appeal ABU 0099 of 2005S