Wakaya Ltd v Nusbaum [2010] FJHC 385; HBC256.2010 (6 September 2010)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: 256 of 2010

BETWEEN:

WAKAYA LIMITED
Plaintiff

AND:

MARSHA NUSBAUM
1st Defendant

KENNETH CHAMBERS
2nd Defendant

Counsel: Jamnadas & Assoc for the Plaintiff
Kenneth Chambers in Person
1st defendant in person

Date of Interlocutory Judgment: 06th September, 2010

INTERLOCUTORY JUDGMENT

[1] This is an application for an order of injunction by the plaintiff seeking that the 1st and the 2nd defendants by themselves and/or through their servants and agents be restrained from entering into and burying Alexander Gerald Walsh-Wrightson Lynch-Chambers (the deceased) on Wakaya Island on Certificate of Title No 27687 on the grounds set out in the affidavit in support. At the time of applying for the injunction, the plaintiff had filed writ of summons against the defendants seeking substantive relief such as damages as prayed therein.

[2] This court, having considered the ex parte application of the plaintiff on 25.08.2010, granted the interim injunction as prayed for, returnable on 06.09.2010.

[3] The defendants, upon receipt of the order of injunction, filed 'Notice of Motion' on 01.09.2010 seeking following orders:

(a). Expediting inter-parte hearing on the ex-parte interim Injunction issued by this Court on 25th August 2010 on compassionate and humanitarian grounds;

(b). That the Plaintiff produces Meliki Togavua Tuinamuana at the expedited hearing for the purposes of cross-examination concerning the matters at issue in the plaintiff's injunction proceeding;

(c). That the plaintiff consolidates in these proceedings all recovery process for rate arrears alleged to be owed by the 1st defendant to the Plaintiff; and,

(d). Further and other relief.

Background Facts.

[4] The property in dispute was first purchased by Edward Nusabum subject to a lease mortgage. He became the registered proprietor of the property pursuant to the transfer No 333584. On 17.09.2007 the property was transferred to Marsha Nusabum, the 1st defendant pursuant to a marriage settlement filed in USA. It was subject to a Restrictive Covenant No 333584A and Easement Nos 333585,333586 and 162746. The 1st defendant accordingly became the registered proprietor of CT 27686 being Lot 6 on DP 4648 (hereinafter referred to as the property).

[5] The second defendant's son passed away on 17.08.2010 and it was planned to bring his body to Wakaya Island for burial. The plaintiff filed ex-parte application for an injunction to prevent the body being buried on the said property.

[6] The contents of the Plaintiff's affidavit can be summarised as follows:

(i) Although the 1st defendant is the registered proprietor of the property, she cannot access the property as she was in arrears of her rates and the plaintiff was in the process of re-entering and taking possession of the property;

(ii) Wakaya Island did not have a cemetery and the defendants did not have a proper approval for burial. The first Defendant is in arrears of rates from January 2008 and demand has been made but the 1st defendant failed to make payments. Legal proceedings to collect the rates were commenced in the Suva Magistrate's Court but later withdrew to allow the plaintiff to re-enter the property; and,

(iii) The 1st defendant has, as a result of her failure to pay rates, lost right to access the property.

[7] The 2nd defendant filed affidavit dated 30.08.2010 together with the motion seeking dissolution of the ex parte injunction.

[8] The second defendant claimed that pursuant to an arrangement between him and the 1st defendant, the second defendant became an equitable owner of a 50% interest in lot 6 DP 4648 on the beach at Wakaya Island and the 1st Defendant owns the remaining 50%. The Minister of Land's consent has been obtained for that and the 'Application for Consent to Dealing' with the Minister's approval is marked as KC1 and annexed to the affidavit.

[9] The 2nd defendant further claimed that the Minister of Health has issued a letter. The contents of the letter dated 25.08.2010 of the Minister read:

'...as powers vested by me under section 3(3) and provisions of the Burial and Cremation Act Cap 117, permission is granted for the parcel of land as aforesaid be acquired or being set a part and licensed as a private burial ground.'

[10] The letter issued by the Minister of Health was marked as KC2 and annexed. A copy of the letter of consent for burial as given by the 1st defendant was marked as KC3 and annexed.

[11] The 2nd defendant further stated that there is no authority to levy rates in the Restrictive Covenant annexed to the affidavit of Meliki Tuinamuana and therefore the invoice annexed and marked as MTT 9 is fraudulent.

[12] In reply to the 2nd defendant's affidavit, the plaintiff filed an affidavit in reply. In the affidavit in reply, the plaintiff stated that the 2nd defendant cannot claim rights on the land on the basis of equitable ownership because the ministerial consent dated 03.08.2010 only allows the 2nd defendant to enter into a contract to purchase the property but there is no sale and purchase agreement to evidence any sale of the property to the 2nd defendant. It was also stated that the letter issued by the Minister of Health did not satisfy the criteria laid down under Section 3 of the Burial and Cremation Act. Section 3 (1) of the Act stipulates:

'It shall be lawful for the Minister by notice in the gazette to set apart and license as a public or private burial ground or crematorium any parcel of land, whether crown land or private property, which may be required for the purpose of a burial ground or a crematorium'

[13] Further, it was stated that since clause 8 of the 'Application for Dealing' marked as KC 1 states the purpose of the purchase as 'property to be held as retirement and holiday accommodation for transferees, their families, friends and associates' and therefore, acquiring the property to license it as a private burial ground is contrary to the very purpose of the purchase.

[14] The 2nd defendant tendered a supplementary affidavit without obtaining leave; but, this court after considering the nature of the 2nd defendant's application and also the fact that he appeared in person, decided to accept that affidavit. I considered the contents of that affidavit as well.

[15] In the context of the above factual background as advanced by the plaintiff and the defendants, I now consider the applicable legal principles.

[16] In American Cyanamid Co. v. Ethicon Ltd [1975]1 All E.R.504 the House of Lords decided that in all cases, the court must determine the matter on a balance of convenience there being no rule that an applicant must establish a prima facie case. The extent of the court's duty in considering an interlocutory injunction is to be satisfied that the claim is not frivolous or vexatious.

In that judgment Lord Diplock stated the object of the interlocutory injunction as follows:

'..the object of the interlocutory injunction is to protect the plaintiff against injury by violation of his rights 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."

Lord Diplock further stated:

'It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavits 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.'

[17] A similar view was expressed by McCarthy P while explaining the objective of an interim injunction in Northern Drivers Union v. Kawau Island Ferries Ltd (1974) 2 NZLR 617 at 620 and 621, where he stated:

"The purpose of an interim injunction is to preserve the status quo until the dispute has been disposed of on a full hearing. That being the position, it is not necessary that the court should have to find a case which entitle the applicant to relief in all events: it is quite sufficient if it finds one which shows that there is a substantial question to be investigated and that matters ought to be preserved in status quo until the essential dispute can be fully resolved.....

...It is always a matter of discretion, and as the citation from Lord Pearce endorses, the court will take into consideration the balance of convenience to the parties and the nature of injury which the defendant, on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right, and that which the plaintiff, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right'

[18] In American Cyanamid v. Ethicon Co Ltd [1975] 1 All E.R. Lord Diplock further enunciated what should the courts 'approach be in considering the granting of an injunction as follows:

"........ the court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried.

It is no 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 claim 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............

......the governing principle is that the court should first consider whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant's continuing to do what was sought to be enjoined between the time of application and the time of the trial. If the answer under this head is yes and if the defendant is in a financial position to pay the damages then no interlocutory injunction should be granted, however strong the plaintiff's case appeared to be at that stage. If the answer to that question is no, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do what he sought to be enjoined, he would be adequately compensated under the plaintiff's undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a position to pay them, there would be no reason on this ground to refuse an interlocutory injunction.

It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises. Various matters are taken into consideration to determine balance of convenience. These will vary from case to case.".......

[19] What could be deduced from Lord Diplock's rulings in American Cyanamide Case are in fact tests to be adopted in dealing with an application for interim injunction. The tests could be summarised as follows:

1. Is there a serious question to be tried?
   
2. Is damage an adequate remedy?
   
3. Where does the balance of convenience lie?
   

[20] I would first deal with the issue of whether there is a serious question to be tried.

[21] The issue of cardinal importance to be determined here is whether the 2nd defendant has any equitable interest on the property in dispute and if so should the injunction granted be dissolved.

[22] To prove equitable interests on the property, the 2nd defendant mainly relies on the 'Consent for Dealing Application'. The 2nd defendant has thoroughly canvassed in his submissions, equitable interests and the effect of the 'Consent for Dealing Application'.

[23] In his affidavit the 2nd defendant stated that he has a 50% equitable interest in the property referred to in the Minister of Lands consent pursuant to sections 6 and 7 of the Land Sales Act.

[24] However, the plaintiff contended that the application for consent to dealing cannot be considered as a valid agreement for sale. Relying on Gonzalez v. Akthar [2004] FJSC, the plaintiff submitted that any contract for sale was to be void, if ministerial consent was not first granted to enter into that contract.

[25] Section 6 (1) of the Land Sales Act Cap 137 states that no non-resident or any person acting as his agent shall without the prior consent in writing of the Minister responsible for land matters make any contract to purchase or take on lease any land...

[26] In the instant case, the application for consent to dealing is dated 19th July 2010 but the ministerial consent was granted on 3rd of August, 2010. Furthermore, the Plaintiff laid great stress on the terms and conditions of the Sale and Purchase Agreement. The document marked MTT9 also shows that the 1st defendant is in arrears of her rates.

[27] The Plaintiff submitted that under sub-clause 13 (3) of the agreement, the owner is liable to pay all rates. The document marked as MTT4 shows that the 1st defendant has admitted her failure to pay rates. The 1stdefendant did not deny the fact that she is in arrears of rates from 2008.

[28] It is the defendant's contention that the plaintiff does not have the right to levy the 1st defendant with rates.

[28] The property in dispute has been acquired by the 1st defendant via transfer No 69457, which was made pursuant to Restrictive Covenant Transfer No 33584 by virtue of the original Sale and Purchase Agreement dated 5.7.1985 made between the plaintiff and the 1st defendant's former husband.

[29] The plaintiff submitted that under clause 13(c) of the Sale and Purchase Agreement, an owner is liable to duly and punctually pay all rates, assessment charges and other similar outgoings.

[30] Under the Clause 20 of the said Agreement, if the purchaser shall make default in payment, the vendor may re-enter upon and take possession of the lot without the necessity of giving any notice or making any formal demand.

[31] The second defendant further submitted that the plaintiff had failed to disclose all the material facts when the ex parte order was obtained and therefore the injunction should be dissolved.

[32] However, it appears to me that the plaintiff had disclosed all the relevant facts material to the ex parte order. The second defendant alleged that the plaintiff should have made inquiries as to the issuing of the letter by the Minister of Health. That letter was issued on 25.08.2010 and the plaintiff supported the ex parte application also on 25.08.2010. Hence it cannot be inferred that the plaintiff had the knowledge of that letter at the time of supporting the ex parte application.

[33] The 2nd defendant further submitted that the property in question is situated about five miles away from the Wakaya Resort and therefore the proposed burial would not affect the resort owned by the plaintiff.

[34] However, neither the 1st defendant nor the 2nd defendant has averred that fact in any of the affidavits in support of that submission. The court, therefore, is not inclined to consider the said submission at this stage.

[35] Furthermore, the 2nd defendant submitted that since his son had Maori blood they have to follow the Maori traditions and customs, which require them to bury the deceased on a land, belong to their family. The defendants failed to file any affidavit evidence to prove that fact either.

[36] However, even in the absence of any affidavit evidence, the court was really in favour of considering that matter having regard to the fact that it involved an issue relating to human traditions and culture. Nevertheless, court cannot at the same time disregard the fact that there is a serious dispute as to the defendants' rights to the property.

[37] On the other hand, as an alternative measure, the 2nd defendant can bury the deceased temporarily at a public burial ground and can relocate it permanently on the property if the court decided so after the conclusion of the substantive matter at an expedited hearing.

[38] It is, however, to be noted that the court did not lose sight of the agony and the unpleasant experiences that the 2nd defendant is undergoing as revealed by his submissions at the hearing. Nevertheless, court is restrained from deviating from the accepted legal principles in arriving at its decision.

[39] These arguments clearly point to the fact that there are serious issues to be tried. The evidence available to the court at this stage is insufficient and has not been tested by oral cross examination. Since there are issues for trial before the court in this action, it certainly is not a frivolous or vexatious action. Hence, the question is whether in the circumstances of this case, the injunction should be dissolved or not until the trial of the action.

[40] In arriving at a decision in this matter, I cannot lose sight of the complaint that the 1st defendant has failed to pay the rates as is required by the sale and purchase agreement. The said agreement clearly empowers the vendor to enter into the property if the vendee has defaulted.

[41] Under Order 29/1/11 of the Supreme Court Practice 1979 Vol. 1 it states:

'The granting of an interlocutory injunction is a remedy that is both temporary and discretionary, and in exercising its discretion whether or not to grant such an injunction, the court is not justified in embarking upon anything resembling a trial of the action, upon conflicting affidavits in order to evaluate the strength of either party's case.'

[42] In light of the above factual analysis, this court also considered the fact whether damages would be an adequate and suitable remedy. The plaintiff has stated that it can pay damages if the action does not succeed after trial. This court, on the other hand, is of the view that the plaintiff could not be adequately compensated by damages, if the application of the defendants is allowed for burial after dissolving the interim injunction at this stage. Moreover, it appears that the plaintiff will suffer irreversible consequences as a result of the burial of the dead body when serious questions of facts are still to be determined by court.

[43] Having considered all the facts of circumstances as set out above, this court is of the view that it would be appropriate to allow the status quo to remain in so far as the parcel of land in issue is concerned. The court also finds that the balance of convenience clearly favours the plaintiff at this stage.

[44] For the reasons set out above, court is not inclined to dissolve the interim injunction granted on 25.08.2010. I accordingly disallow the defendants' application and order that this matter be set down for expedited trial. Parties are to bear their own costs.

[45] The matter is referred to the Master of the Court on the Thursday the 9th day of September 2010 for directions on pleadings and expedited trial.

So ordered.

Pradeep Hettiarachchi
JUDGE

At Suva
06th September, 2010