Supreme and Auto Care Holdings Ltd v Jims Enterprises Ltd [2014] FJHC 675; Civil Action 323.2013 (18 September 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 323 of 2013

BETWEEN:

SUPREME AND AUTO CARE HOLDINGS LIMITED
a limited company having its registered office at 181 Mead Road, Suva
Plaintiff

AND:

JIMS ENTERPRISES LIMITED
a limited company incorporated in Fiji having its registered office in Raiwaqa, Suva, Fiji
First Defendant

AND:

MERCHANT FINANCE AND INVESTMENT COMPANY LIMITED
a limited liability company duly incorporated in Fiji and having its registered office at Level 1, Ra Marama, 91 Gordon Street, Suva
Second Defendant

AND :

DAIRY FOODS LIMITED
a limited liability company duly incorporated in Fiji and having its registered office at Lot 30 Wailada Industrial Sub Division, Lami
Third Defendant

AND :

MUTUAL STAR INVESTMENT LIMITED
a limited liability company duly incorporated in Fiji and having its registered office at Lot 29-30 Wailada Industrial Sub Division, Lami
Fourth Defendant

AND :

ARVIND KANT PATEL
of Moti Street, Samabula, Fiji, Company Director
Fifth Defendant

Appearance : MR R NAIDU for the Plaintiff

Date of Order : 18 September 2014

INTERIM INJUNCTION ORDER

1. The Plaintiff filed Ex-parte summons for Interim Injunction pending appeal on 16 September 2014 with the Affidavit in Support dated 16 September 2014 sworn by the Kalpesh Kumar Patel Director/Shareholder of the Plaintiff Company and sought the following Order:

(i) An Order that until the hearing determination of the appeal (Civil Appeal No. ABU0066 of 2014) an urgent interim injunction be granted to restrain the Second and/or Fourth Defendant its subsidiaries or related companies by themselves and/or by their servants or agents howsoever, from taking any other or further steps to conclude/complete the registration of transfer of the property comprised in Certificate of Title No. 19755 to the Fourth Defendant pending an appeal to the Court of Appeal.

2. This matter was taken up before me since Hon. Justice Corea is not available.

3. The Plaintiff's counsel Mr Naidu supported the summons filed on 18 September 2014 and stated appeal against the refusal of Interim Injunction Orders by Hon. Justice Corea was filed and served on 15 September 2014 (Annexure marked "KKP1"). The counsel submitted citing case authorities an application of this nature should be made to the High Court pending the appeal to obtain orders for the limited purposes to prevent the appeal becoming nugatory.

4. I have considered the submissions, Affidavit and the case authorities cited by the counsel.

4.1 In case of Eniford Properties Ltd –v- Cheshire County Council [1974] 1Ch 261:

"it was held by Megarry J. dismissing the motion, that the court had jurisdiction to grant the injunction and that it was not inconsistent with a decision refusing an interlocutory injunction for the court subsequently to grant a more limited injunction preserving the status quo pending an appeal against that refusal (PP 267B-C; 268C)".

I note that such decision should be made on the basis that the grounds of appeal establish arguable issues to be decided and the status quo to be maintained until the appeal is heard. In this matter unless the order is granted there shall be irreparable loss cause to the Plaintiff and the appeal becomes nugatory. I further find, there is substantial arguments to be taken up in the appeal.

4.2 I also quote from the said judgment in case of Wilson –v- Church (No. 2) [1879] UKLawRpCh 233; 12 Ch. D. 454 where Cotton L. J. stated:

"..........when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory."

4.3 I cite from the Australian Federal Court case of William Hollier and Another –v- Australian Maritime Safety Authority & Ors [1998] FCA 428 (decided on 27 April 1998):

"INJUNCTION PENDING APPEAL

The applicants have applied by motion for orders that pending the outcome of their appeal the respondents be restrained from giving effect to the notice to vacate, from evicting them, and from transferring or dealing with the title to the Island. Although the motion has been filed in the original proceeding and not in the appeal, I will call the applicants "the appellants". The Rules of Court deal with applications for orders staying execution of a judgment pending the outcome of an appeal. On such an application, the Court must be satisfied that the appellant has an arguable ground of appeal, and the appellant cannot expect a stay without showing that there is one: Alexander –v- Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 695; Griffiths –v- Australian Postal Commission (1987) 87 FLR 139 at 141; Enterprise Good Mines NL –v- Mineral Horizons NL [1988] NTSC 5; (1988) 91 FLR 403 at 410. This requirement protects the position of a successful litigant where it may be plain that the appeal has been commenced without any real prospect of success and simply in the hope of avoiding an immediate execution upon the judgment: Alexander at 695. A comparable jurisdiction exists where a stay would achieve no purpose, as where there is an appeal from an application that has been dismissed. The Court can grant an injunction against the successful respondent for the purpose of preserving the status quo until the appeal is determined, for instance by restraining the respondent from parting with the subject matter of the claim, as in Orion Property Trust Ltd –v- Du Cane Court Ltd [1962] 1 WLR 1085; [1962 3 All ER 466, The principle on which the Court acts in applications for injunctions pending appeal is the same as that applicable where a stay pending appeal is sought. It is to ensure that the appeal, if successful, is not nugatory: Wilson –v- Church [No 2] (1879) 12 Ch 261 at 268; Bercove –v- Hermes [No 2] [1983] FCA 237; (1983) 51 ALR 105; North Flinders Mines Ltd –v- Hartogen Energy Ltd (1988) 52 SASR 14. As on an application for stay, an appellant who seeks an interlocutory injunction pending appeal must show some prospect of success on the appeal. That is involved in establishing the existence of a serious question to be tried: Felkro Nominees Pty Ltd –v- Deputy Commissioner of Taxation (unreported, Sundberg J, 4 September 1996)."

4.4 The same principle was followed in Fiji Court of Appeal Case No. ABU 0062 of 2003S (unreported decision on 28 November 2003) page 6 Tompkins J.A. stated:

"[23] Mr Turner further submitted that as a matter of good practice the present application should be brought by way of a stay of execution rather than as an application for an interim injunction. In accordance with rules to which I have referred, an application for stay of execution would have to be brought first in the High Court. This is not an application for a stay of execution. A stay would not avail the appellants. There is no order or judgment in the High Court to be stayed. The only way in which the appellant can hold the present situation until its appeal against dismissal of the application for interim injunction by the High Court is heard, is by an order by way of injunction to prevent the parties taking any further action, the effect of which could render the appeal nugatory. Such an order, if otherwise appropriate, would prevent prejudice to the claims of the appellant pending the appeal in accordance with s 20(1)(e).

[24] I agree with Mr Turner's submission that as a matter of general practice it is preferable for an application such as the present to be brought in the first instance in the High Court and to the judge who has determined the initial proceedings. However, the matter is one of some urgency, the summons is now before this court with all the necessary parties present ready to have the application determined and in those particular circumstances it is preferable that the appellant's application be dealt with now rather than there be some further delay and resulting uncertainty."

4.5 There is an urgency of granting this interim order sought in paragraph (1) of the Summons if not appeal process will become nugatory. The Plaintiff adopts the undertaking to damages given to this court in his Affidavit filed on 11 March 2014 in the same proceedings and I accept the same.

5. Orders of the Court:
   

(a) The Order in paragraph (1) of the Summons granted.

Delivered at Suva this 18th Day of September 2014

............................
C. KOTIGALAGE
JUDGE