Victoria Wines & Spirits Ltd v Watson [2010] FJHC 569; HBC236.2010L (31 December 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 236 of 2010L

BETWEEN:

VICTORIA WINES & SPIRITS LIMITED
Plaintiff

AND:

VALDA ADA FERRIER-WATSON
Defendant

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr S Krishna for the Plaintiff.

Solicitors: Neel Shivam Lawyers for the Plaintiff.

Date of Hearing: 14 December 2010
Date of Judgment: 31 December 2010

INTRODUCTION

[1] This was an ex-parte application by the Plaintiff, Victoria Wines, to restrain the Defendant, Ms Watson, from selling the property on which Victoria Wines operated its liquor store.

THE APPLICATION

[2] The Ex-parte Motion was filed pursuant to Order 29 Rule 1 of the High Court Rules 1988. It sought the following orders:

1. That the Defendant and/or her servants or agents be restrained from further selling, transferring, mortgaging, alienating or otherwise dealing with the property in any manner whatsoever until the further Order of this Court.
   
2. The Defendant pay to the Plaintiff the costs of this Application on a full indemnity basis.
   

[3] The grounds of the application were set out in the supporting affidavit of the director of Victoria Wines. She says the company is the lessee of Ms Watson's freehold land CT No 10842 being lot 17 on DP 2776 in Nadi. The company operates its liquor store from there. The company and Ms Watson entered into a lease agreement on 7 November 2008 for a period of 10 years from 1 November with option to renew for a further 10 years. The lease also gave Victoria Wines an option to buy the property exercisable on or after 1 November 2010. The lease was drawn up by Ms Watson's then solicitors.

[4] The relationship began to sour in 2009. Ms Watson wanted some of the terms of the lease changed but Victoria Wines was not agreeable to the changes. She then claimed that the lease she signed on 7 November 2008 was not what she agreed to. The lease provided for the payment of rent of a fixed amount to be reviewed every two years but was silent as to whether it was to be inclusive or exclusive of Value Added Tax (VAT). That also led to another ongoing dispute and a letter of demand from Ms Watson's solicitors. Victoria Wines denied that it was liable for VAT and exercised its option to purchase by letter dated 25 May 2010. A further letter from the company was sent on 14 October 2010 advising Ms Watson that it was ready and willing to complete the purchase of the property. In response, by letter on 25 October 2010, Ms Watson's solicitors demanded that the company pay VAT on the rental and on the purchase price. The demand was not met so, on 26 November 2010, her solicitors gave notice of termination of the lease if the VAT on the rental was not paid by 9 December 2010 and the company to vacate the premises on 10 December 2010. Immediate action for vacant possession without further notice was to follow.

[5] By Ex-parte Notice of Motion dated 8 December 2010, the company brought this application which was issued out of the Registry on 14 December 2010 and heard on that day.

[6] I was satisfied that the company had shown that its application was one of urgency and the delay that would result from the matter proceeding in the usual way would entail irreparable or serious mischief as required by Order 29 Rule 1(2)

ORDERS

[7] I therefore made the following orders:

1. Order as per paragraph 1 of the Ex-parte Motion in respect of CT 10842 being Lot 17 on DP 2776.
   
2. Plaintiff to serve all Court documents on the Defendant within 3 days.
   
3. Mention on 31 January 2011 at 9.30 am.
   
4. The Originating Summons is to issue with the same return date.
   

Sosefo Inoke
Judge