Bhavani Jewellers Ltd v Vayeshnoi [2011] FJHC 599; HBC115.2011L (26 September 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 115 of 2011L

BETWEEN:

BHAVANI JEWELLERS LIMITED
Plaintiff

AND:

LEKH RAM VAYESHNOI
Defendant

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr S Sharma (Plaintiff)
Mr G O'Driscoll (Defendant)

Solicitors: Samusamuvodre Sharma Law (Plaintiff)
O'Driscoll & Co (Defendant)

Dates of Hearing: 12 September 2011

Date of Judgment: 26 September 2011

INTRODUCTION

[1] This is my judgment after an inter-partes hearing on whether I should continue interim orders which I granted ex-parte on 29 July 2011. The orders which I granted ex-parte were in the form of Mareva Injunctions.

THE EX-PARTE ORDERS

[2] The orders granted ex-part were to restrain the defendant from dealing with his properties in Fiji, specifically, a Crown lease of residential property No 12759 LD ref 4/11/1669, motor vehicle EH 155 and his Fiji National Provident Fund (FNPF) entitlements and from withdrawing monies from his bank accounts in Fiji.

[3] At the ex-parte hearing, the plaintiff's director swore in his affidavit that he and the defendant had been close friends and he had a lot of respect for the defendant as the defendant had served as a Minister of government and was a prominent parliamentarian. In July 2005, the defendant borrowed from him $10,000 and in exchange the defendant gave to him a post dated cheque for the same amount. The defendant also told him he would try and pay the debt in cash by 28 July at which time he would uplift his cheque. The defendant paid the cash so the director did not present the cheque at the bank. Again in October 2005, the defendant borrowed more money from him which he also repaid. These transactions led to a building of trust between them over the years. On 30 December 2010, the defendant wrote a cheque for $50,000 payable to the director for the supply of gold jewelry. The director did not have such jewelry in stock so he had to specially order it. The defendant uplifted the jewelry on 2 May 2011 from the director's shop for which he raised an invoice. When the director presented the defendant's cheque on 18 May 2011 at the defendant's bank the cheque was dishonoured and the bank told him that the account had been closed. He said the reason he did not present the cheque earlier was the defendant asked him to hold on to the cheque because he would pay back the $50,000 in cash. He tried to contact the defendant but he did not respond. He has reported the matter to the Sigatoka police and attached a copy of the statement that he gave the police. In that statement the director said the defendant told him when he gave the cheque that he was waiting on compensation of $300,000 from the Fiji Times in a civil suit which he had won. The defendant has flown to New Zealand and is applying for permanent residency there. The defendant is trying to sell his residential property and motor vehicle in Fiji.

[4] It was under those circumstances that I granted the Mareva injunctions ex-parte as I was satisfied that the plaintiff had shown more than a good arguable case and there was a real likelihood that the defendant would sell off his properties to frustrate any judgment which the plaintiff was likely to get: Sharma v Akhil Holdings Ltd [2006] FJHC 82; HBC155.2002L (15 December 2006).

THE HEARING INTER-PARTES

[5] It is now conceded that the defendant's FNPF funds cannot be the subject of a Mareva injunction.

[6] The defendant filed an affidavit in reply. In it he says it is true that he and the director of the plaintiff had been close friends and had a good relationship but that ended when this action was filed. His explanation of the circumstances of the $50,000 cheque was that it was given by him to the director to bolster the financial position of the director's company. The company was purchasing another jewelry shop and in an attempt to convince the seller of the director's company's financial position, the defendant gave the $50,000 cheque post dated to 31 December 2010. There was definitely no liability attached to the cheque, according to the defendant. Since he and the director had a good relationship based on trust he did not bother to take the cheque back after 31 December 2010. He denies receiving any jewelry from the plaintiff company or its director; it was a blatant lie that he uplifted the jewelry from the plaintiff on 2 May 2011. He disputes the authenticity of the plaintiff's invoices. He says his documentations proved that he left Nadi for Auckland on the Pacific Sun flight in the early morning (8.45am) of 3 May 2011. He denies applying for permanent residency in New Zealand. He has only applied for an extension of his current visa. A letter from the New Zealand Department of Immigration confirms that the defendant's visitor's visa had been extended to 30 October 2011. He says he has been unemployed since resigning from cabinet in August 2008 and his holiday in New Zealand was sponsored by his brother and sister living there.

[7] In his affidavit in response, the director says he purchased the shares in the other jewelry business in 2005 and denies that his company is in financial difficulties and attached the company's tax returns as proof. He says he personally raised the invoices and handed the jewelry to the defendant on 2 May 2011. His company has paid the VAT on the supply and annexed the May VAT return to his affidavit as proof.

[8] The defendant's residential property is a protected Crown lease so it is subject to s 13 of the Crown Lands Act, which so far as relevant, provides:

Whenever in any lease under this Act there has been inserted the following clause:-

"This lease is a protected lease under the provisions of the Crown Lands Act"

(hereinafter called a protected lease) ... except at the suit or with the written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any court of law, ....

[9] The Court of Appeal[1] in Civil Aviation Authority of Fiji Islands v Limalevu Apisai [2008] FJCA; ABU 20 of 2006 (25 March 2008) has interpreted the provision to mean that:

[11] The consent of the Director of Lands to commence proceedings can be obtained anytime before the land is actually "dealt with" by the Court – Mohammed Rasul v Jeet Singh and Hazra Singh 10 FLR 16.

[12] We interpolate here that this was a decision of Hammett Acting CJ who held that land is not dealt with by the Court until an order has been made or a judgment of the Court delivered.

[10] On 29 July 2011, I did grant the ex-parte orders so in principle the Court had dealt with the lease without the prior consent of the Director of Lands. I am therefore prohibited from continuing any orders in respect of the defendant's residential property because no prior consent had been granted. I should also say that it seems to me there is nothing to stop the plaintiff seeking the Director of Lands consent for the filing of another application or to pursue that part of the claim in respect of the Crown lease.

[11] I am not convinced that the defendant has managed to show from his affidavit evidence that the plaintiff has less than an arguable case or that he intends or is capable of meeting any judgment for the plaintiff so I will allow the injunction to continue in respect of the motor vehicle EH 155,.

[12] The same goes to any bank accounts which the defendant may have in Fiji.

[13] The defendant has filed a cross application to strike out the plaintiff's claim. At the end of the hearing I indicated to counsels that I would leave that application for determination at a later date. I think it should be clear from this judgment what the outcome of that application is likely to be but I make no orders in respect of it. I will set another date for hearing of that application if the parties want it.

COSTS

[14] I think costs should be in the cause so I order accordingly.

THE ORDERS

[15] The orders are therefore:

• (a) Paragraphs 1(i) and 1(iii) of the Court's orders of 30 July 2011 are discharged.
  
• (b) Paragraph 1(ii) and 2 of the Court's orders of 30 July 2011 are to continue until further order.
  
• (c) Costs of this application are to be costs in the cause.
  

Sosefo Inoke
Judge

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^[1] Byrne and Shameem JJA