Blakelock v Blakelock [2014] FJHC 642; HBC244.2014 (29 August 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 244 of 2014

BETWEEN:

EDWARD BLAKELOCK of Villa 309, Admiral Circle, Pacific Harbour, Deuba
Plaintiff

AND:

ELIZABETH RATU BLAKELOCK of 17 Sam Lal Street, Bay View Heights, Suva, Fiji
1st Defendant

AND:

THE REGISTRAR OF TITLES of Civic House, Suva, Fiji
2nd Defendant

Appearance : SOKIMI A. of Jamnadas & Associates for the Plaintiff

Date of Judgment : 29 August 2014

INTERLOCUTORY JUDGMENT

1. The Plaintiff by the Ex-parte Notice of Motion filed pursuant to Order 29 Rule 1(1) and (2) of the High Court Rules 1988 sought the following Orders:

A. An interlocutory interim injunction restraining the 1st Defendant from transferring the property comprised and described on Crown Lease No. 4222 ("the property") until the final determination of this action;

B. An interlocutory interim injunction restraining the 2nd Defendant from registering or endorsing any transfer of the property until the final determination of this action;

C. An interlocutory interim injunction restraining the 1st Defendant from dissipating the remaining balance of the Plaintiff's share of the sale proceeds of the property, being the sum of FJ258,000.00 (Six Hundred and Seventy Five Thousand Fijian Dollars), until the final determination of this action;

D. An interlocutory interim injunction requiring the 1st Defendant to pay the remaining balance of the Plaintiff's share of the sale proceeds in the sum of FJ$258,000.00 (Two Hundred and Fifty Eight Thousand Fijian Dollars) into the trust account of Jamnadas & Associates to be held on trust until the final determination of this action;

E. An interlocutory interim injunction freezing all the 1st Defendants assets and finances in the Bank of South Pacific Account No. 10282531 until the 1st Defendant undertakes to pay the sum of FJ$258,000.00 (Two Hundred and Fifty Eight Thousand Fijian Dollars) into the trust account of Jamnadas & Associates to be held on trust until the final determination of this action;

F. Any other interim interlocutory Order the Honorable Court deems just and equitable.

2. The matter was taken up for hearing on 29 August 2014 and in the Affidavit dated 25 August 2014 sworn by Edward Blakelock and stated:

2.1 The Plaintiff has the joint ownership in the property Crown Lease No. 4222 (Annexure 'EB2').

2.2 By Transfer No. 73168A registered on 9 September 2010 the Plaintiff transferred the property on CL4222 to himself and the 1st Defendant to hold in joint tenancy (Annexure 'EB1'). Prior to this transfer the Plaintiff was the sole owner of the property and the said transfer was effected in favour of his sister at his father's request.

2.3 The Plaintiff and the Defendant were interested in selling the property and the sale was arranged through Harcourts Fiji Ltd – Real Estate Agents.

2.4 The said Harcourts Fiji Limited informed the Plaintiff the best offer received was from Star Printery Limited the sum of FJD$675,000.00 with a guaranteed deposit of 10% of the purchase price.

2.5 Having agreed for the offer the Plaintiff and the Defendant executed a Sale and Purchase Agreement (Annexure 'EB6') and copy of the agreement was not given at that time although the Plaintiff requested for same. The Harcourts Fiji Ltd had engaged the services of the Law firm Patel Sharma Solicitors for legal documentation.

2.6 The Plaintiff was residing in Pacific Harbour and the 1st Defendant was entrusted with liaising with the lawyers and the real estate agent since it was onerous for the Plaintiff to come to Suva to attend to those matters on the understanding proceeds of the sales to be shared equally.

2.7 The settlement for the property had taken place on 7 August 2014 for the sum of FJD$675,000.00 and it was fully paid.

2.8 Having deducted the expenses the net sale proceeds amounted to FJD$596,000 the Plaintiff awaited his share of FJD$298,000.00. When the Plaintiff contacted Patel Sharma Solicitors they have informed the Plaintiff the cheque for FJD$596,000 was given to the 1st Defendant and when the 1st Defendant was contacted, she informed the Plaintiff that he will be receiving FJD$40,000.00 as his share and claimed the Plaintiff was not a registered owner of CL4222. The 1st Defendant denying stated execution of the Transfer No. 736168A (Annexure 'EB1') was transferred to himself and the 1st Defendant to hold as joint tenants.

2.9 The Plaintiff stated the 1st Defendant had given a Bank cheque for $40,000.00 and the 1st Defendant had refused to pay the balance sum of FJD$258,000.00.

2.10 The Plaintiff further stated one Malani from Patel Sharma Solicitors informed him that he was not a registered owner of CL4222 and the Plaintiff disputed same.

2.11 Subsequently, the Plaintiff had conducted a search at the Registrar of Titles and a copy of the Title for CL4222 (Annexure 'EB2') was obtained and by the letter dated 21 August 2014 (Annexure 'EB5'), the Plaintiff's solicitors informed the Registrar of Titles:

(a) the endorsement of the title did not reflect the specific instructions relayed in Transfer No. 766168A as the Plaintiff was not registered as a joint owner;

(b) the 1st Defendant was attempting to sell the property and the Plaintiff requested to cease the finalizing the transfer through endorsing the title.

2.12 On 22 August 2014, through the Solicitors for the Plaintiff obtained a copy of Sale and Purchase Agreement from Harcourts (Annexure 'EB6') and alleged his name was cross off and signature too was crossed off in the agreement. There were no initials acknowledging the deletions of the Plaintiff's name and signature and the said issues to be determined in a substantive hearing.

2.13 Ms Mala of Patel Sharma had informed the Plaintiff and he believes that the 1st Defendant is in the process of purchasing a property from the sale proceeds of CL4222.

2.14 The third party who had purchased the property had advertised in Fiji Sun News Paper on 23 August 2014 for sale through an agent (Annexure 'EB7').

2.15 The Plaintiff was advised by his solicitors if Transfer from the 1st Defendant is endorsed on the Title of CL4222, the third party will acquire an indefeasible title and the Plaintiff is permanently deprived of his share of this property.

2.16 It is also advised by the solicitors, the defendant had the ability to dissipate the remaining balance of the sale proceeds amounting to $258,000 and this court to intervene to restrain such dissipation of the proceeds.

2.17 The Plaintiff also stated in his Bred Bank Account No. 0021667019 he has FJD$38,510.66 to his credit (part of FJD$40,000.00 paid to him by the 1st Defendant – Bank Account Statement Annexure '8') and his undertaking as to damages is backed by the said sum.

3. Analysis and Conclusions
3.1 As stated in American Cyanamid Co. vs. Ethicon Ltd [1975] UKHL 1; [1975] All ER 504, the inter-alia following factors to be considered:

(a) whether there is a serious issue to be tried before granting interim injunction;

(b) the inadequacy of damages to compensate the Defendant;

(c) where the balance of convenience lies in favour of the Defendant

. 3.2 (a) Whether there is a serious issue to be tried
3.2.1 I find prima facie endorsement of the Transfer No. 736168 is incorrectly stated in the Title of CL4222.

3.2.2 I am satisfied there is a serious issue for determination as to whether the 1st Defendant was aware of the error made in the endorsement of Transfer No. 736168 A on the Title of CL4222 if so whether the Defendant took advantage to deprive the Plaintiff from his share of entitlement of the property.

3.2.3 I further conclude Annexures 'EB1' to 'EB8' establish a prima facie case against the Defendants which includes allegations of fraud. These matters have to be tried at a substantive Trial.

3.3 (b) Inadequacy of Damages
3.3.1 I conclude that there is imminent danger of the property is for sale which will deprive the Plaintiff having fruits of the Judgment in a substantive trial if a Transfer Deed is registered in the name of the 3rd Party the Plaintiff will suffer irreparable damages. As such there is a necessity to safeguard the rights of the Plaintiff as the joint owner of CL4222.

3.4 (c) The Balance of Convenience
3.4.1 There are adequate material tendered by the Plaintiff and I conclude balance of convenience lies in favour of the Plaintiff. I am satisfied with the security for undertaking as to damages subject to order made in paragraph 5 below.

3.5 Accordingly, I make the following interim injunction orders varied:

1. The 1st Defendant is restrained from transferring the property comprised and described on Crown Lease No. 4222.

2. The 2nd Defendant is restrained from registering or endorsing any transfer of the property comprised and described on Crown Lease No. 4222.

3. The 1st Defendant is restrained from dissipating the remaining balance of the share of the sale proceeds of the property being the sum of FJD$258,000.00 and further ordered to all the Commercial Banks operating in Fiji to obtain permission from this court to release any funds to the 1st Defendant from any account maintained by the 1st Defendant in her name or jointly.

4. The 1st Defendant's Bank of South Pacific Account No. 1028253 is freezed and the 1st Defendant is restrained from operating the said Account.

5. The above orders are subject to providing a letter of undertaking for guarantee from the Bred Bank addressed to the Chief Registrar of this court FJD$38,510.66 shall be paid to this court on demand by the Chief Registrar.

6. Orders (1); (2); (3) and (4) are inforce and operative until 22 September 2014 (subject to Order (5).

Delivered at Suva this 29th Day of August 2014

C. KOTIGALAGE
JUDGE