Waterlife Exporters Fiji Ltd v Diston [2016] FJHC 119; Civil Action 361.2015 (26 February 2016)

In the High Court of Fiji at Suva

Civil Action No. 361 of 2015

Between:

Waterlife Exporters Fiji Limited
Plaintiff

And:

Kristofferson Diston
Defendant

Appearances: Ms D Ghandi with Ms K Chetty for the plaintiff
Mr G. O'Driscoll for the defendant
Date of hearing: 25th January 2016

Judgment

1. By ex parte notice of motion filed on 24th November,2015, made inter-partes the plaintiff sought the following reliefs:
   
   1. That the Defendant by himself and/or through its his servants and/or agents and/or Solicitors, and/or howsoever be restrained from selling, transferring, charging, mortgaging, assigning, disposing off or in any manner or form from dealing with the properties described as the Hitachi digger/excavator UHO52M, Engine serial number 80822 (6BB1), unregistered at LTA, (hereinafter referred to as "the digger") until determination of the within action.
      
   2. That the Plaintiff .. is at liberty to recover the digger...
      
2. Peter Savona, Director of the plaintiff company in his affidavit in support stated as follows:
   
   1. The plaintiff and the defendant agreed on the sale and purchase of a Hitachi digger/excavator UHO52M, Engine serial number 80822,(6BB1). The agreement was attached.
      
   2. On 8th April 2015, the date of execution of the agreement, he paid the defendant $3,100.00.
      
   3. The total purchase price of the digger was $35,000.00 to be paid with an initial deposit of $10,000.00 and three equal payments over the next 12 months, after possession was given to the plaintiff.
      
   4. The plaintiff has paid a total amount of $15,000.00 to the defendant.
      
   5. The defendant was obliged to have the digger repaired at his cost and register the digger with the LTA.
      
   6. The defendant advised that he was not in a financial position to get the repairs done. The deponent then paid Janend Singh aka Mr Brown $3,000.00 for the repairs.
      
   7. He saw an advertisement for the sale of the digger in the Fiji Times of 7th November, 2015. He is certain from the description in the advertisement that the digger he purchased is the one advertised, as he has the serial number and description of the digger.
      
   8. The digger is currently in Mr Brown's garage.
      
   9. When he visited the garage on 16th November, 2015, Mr Brown informed him that the defendant has advertised the sale of the digger for a continuous period of three weeks prior to the advertisement of 7th November, 2015, and prospective buyers have visited his garage.
      
   10. He fears that it can be sold at any time, because he "strongly feels Mr Brown is not reliable and has hostility towards " him.
       
   11. The digger has now been repaired and is operational. The defendant may sell the digger at any time, as he already has three to four interested buyers.
       
3. On 26th November,2015, the plaintiff filed summons for substituted service by way of advertisement in the Fiji Times. I granted order in terms of that summons.
   
4. On 30th November,2015,the application for interim relief was supported by Ms Devan, counsel for the plaintiff on that occasion. The defendant was absent and unrepresented. I granted order in terms of prayer (i) of the motion filed on 24th November,2015, till 7th December,2015, which was subsequently extended.
   
5. On 4th December,2015, the defendant filed acknowledgment of service.
   
6. When the matter was called on 11thDecember,2015, Mr O'Driscoll, counsel for the defendant moved for the dissolution of the interim injunction.
   
7. On 25th January 2016, I heard counsel on the dissolution of the interim injunction.
   

The hearing

8. Mr O' Driscoll submitted that the plaintiff had a triable issue, but damages would provide an adequate remedy, since the plaintiff's debt was quantifiable. The plaintiff has not explained why damages would not be an adequate remedy.
   
9. Next, he pointed out that the statement in paragraph 13 of the affidavit in support that $15000 has been paid was an incorrect statement, as the receipts attached to the petition depict that $ 3715 has been paid. Together with the deposit of $ 10000, the plaintiff has paid $ 13715 in total to the defendant.
   
10. Mr O'Driscoll said that the agreement provided that three equal payments were to be paid over the next 12 months. By 24th November, 2015, the plaintiff should have paid $ 18300, ie the deposit of $ 10,000 and $ 8300 as installments.
    
11. On the issue of the balance of convenience, it was submitted that the plaintiff has not given any cogent reason for the grant of interim relief. The alleged advertisement was on 7th November,2015, but the plaintiff sought interim relief only on 24th November,2015.
    
12. Finally, Mr O'Driscoll submitted that no evidence in the form of bank statements has been given by the plaintiff with its undertaking as to damages.
    
13. Ms Chetty, counsel for the plaintiff argued that there was a serious issue to be tried and damages was not an adequate remedy, as the plaintiff does not have use of the digger. If the injunction was dissolved, the defendant can sell the digger and dispose parts. She also said that the defendant has not filed an answering affidavit.
    

The determination

14. The parties are not at variance that there is a serious issue to be tried. The affidavit in support discloses that there is a dispute as to the amount paid and balance due from the plaintiff to the defendant for the digger.
    
15. The American Cyanamid case [1975] UKHL 1; [1975] 1 All ER 504 postulated that once an applicant for an interlocutory injunction meets the threshold of a serious issue, the governing consideration is the balance of convenience and the significant factor in assessing it is the inadequacy of damages. If damages would adequately compensate the plaintiff if successful at the hearing and the defendant could pay the damages, no interlocutory injunction should be granted.
    
16. Lord Diplock at page 509 stated:
    

The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right 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 protect against injury resulting from his having been prevented from exercising his own legal rights for which he could not be a 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.(emphasis added)

At pg 510, His Lordship stated further:

"......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 damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no

interlocutory injunction should normally be granted, however strong the plaintiff's claim appeared to be at that stage. If on the other hand damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypotheses that the defendant were to succeed at the trial in establishing his right to do that which was 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 application and the time of the trial.(emphasis added)

17. I would agree with Mr Driscoll that the plaintiff's claim relates to a quantifiable claim. Further, the plaintiff has not shown that the defendant is not in a financial position to pay. Accordingly, damages would be an adequate remedy.
    
18. I would also note that the plaintiff has not disclosed his assets in its undertaking as to damages.
    
19. In Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Limited,(Civil Appeal No. ABU 0011 of 2004),the FCA stated:
    

Applicants for interim injunctions who offer an undertaking as to damages should always proffer sufficient evidence of their financial position. The Court needs this information in order to assess the balance of convenience and whether damages would be an adequate remedy.

20. Next, it was argued that there was no serious or imminent threat to the sale of the digger, as the advertisement for sale was made on 7th November,2015, but the plaintiff sought interim relief on 24th November,2015.
    
21. The American Cyanamid case concerned an application for a quia timet interlocutory injunction to restrain the threatened infringement of a patent.
    
22. In Wakaya Ltd v Chambers,(Civil Appeal No. CBV0008/11) a quia timet injunction was defined as:
    

An injunction to restrain wrongful acts which are threatened or imminent but have not yet commenced.

23. In London Borough of Islington v Elliot and Morris, (2012) EWCA Civ. 56, the Court of Appeal reviewed the principles that apply in the grant of a quia timet injunction before damage has taken place. The basis of the claim was an allegation that roots of a tree from a property owned by the council constituted an actual or potential nuisance to the neighbour's property. The claimants sought a quia timet injunction to have the trees removed, even though actual damage had not yet occurred. The Court of Appeal held that the justification for granting a quia timet injunction depended on whether the prospect of damage was sufficiently imminent and certain.
    
24. The effect of the judgment is that an application for a quia timet injunction should not be granted simply for the reason that damage may be caused in the future. The damage has to be sufficiently proximate and likely. A claimant must establish with some certainty that an infringement of his legal rights is to take place.
    
25. I would note that the plaintiff has not established that the phone number given in the advertisement is that of the defendant nor substantiated its assertion in the affidavit in support that "Mr Brown had informed (the deponent) that the Defendant has advertised for the sale of the digger for a continuous period of three weeks(3) prior to the advertisement in the Fiji Times on 7th November 2015 and other prospective buyers have visited his garage", as I pointed out to counsel for the plaintiff when the application for interim relief was supported.
    
26. In my view, there is no evidence that there is an imminent threat of the sale of the digger. It follows and I hold that there is no serious reason that warrants the interim injunction to continue.
    
27. In the circumstances, I discharge and dissolve the interlocutory injunction granted to the plaintiff.
    
28. Orders
    

1. The interim injunction granted on 30th November,2015, is dissolved.
2. The plaintiff shall pay the defendant costs in a sum of $ 1500 summarily assessed within 14 days of this judgment.

100. This case is to be called before the Master on 18th March,2016, for pre-trial steps.
     

29th February, 2016

A.L.B.Brito-Mutunayagam
Judge