Ali v Nisha [2016] FJHC 991; HBC05.2014 (28 October 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 05 of 2014

BETWEEN : MOHAMMED ALI of Batinikama, Labasa, Salesman.

PLAINTIFF

AND : SAIRUL NISHA of Valebasoga, Labasa, Businesswoman.
1^st DEFENDANT

AND : DALOMO HOLDINGS LIMITED a limited liability Company having its registered office at Valebasoga, Labasa.

2^nd DEFENDANT

AND : RAMESH CHAND of Siberia, Labasa, Driver.
3^rd DEFENDANT

AND : MAHEND PRASAD of Batinikama, Labasa, Taxi Proprietor.

4^th DEFENDANT

Appearances : Sarju Prasad Esq for the Plaintiff

Messrs. Gibson & Co. for Defendants 1 & 2

Samusamuvodre Sharma Law Defendants 3 & 4

Before : Acting Master S. F. Bull
Ruling : 28 October 2016

EXTEMPORE RULING
Introduction

1. By an inter-parte notice of motion filed on 17 October 2016, the Plaintiff seeks a mareva injunction against the Fourth Defendant. The orders sought are:
   
   • (1) “That the fourth Defendant by himself and/or through his servant and/or agents or howsoever be restrained from transferring, selling, dealing with, charging, mortgaging, assigning, disposing of, or removing from this jurisdiction any of his properties or monies or assets over which he has ownership or control within the jurisdiction of this Court.
     
   • (2) That the fourth Defendant do forthwith disclose within seven (7) after the service of the order on him and serve on the Plaintiff’s solicitors an affidavit disclosing the full value of all and each of his assets within the jurisdiction of this Court identifying with full particularity the nature and whereabouts of all such assets and whether the same are held in his own name or jointly or nominees or companies on his behalf and in particular specifying:
     
     • (a) The identify (sic) of all banks (sic), financial institution or other accounts held in his name either jointly or by nominees on his behalf and the balance of each of such accounts and the name and addresses of the branch at which it is held.
     • (b) Any other assets, monies or goods owned by him and the whereabouts of the same and names and addresses of all persons having possession, custody or control of such assets, monies or goods at the date of the service of this order.
       
   • (3) Further of other relief(s).”
     
2. The application is supported by an affidavit sworn by the Plaintiff. He deposes that he had been a fare paying passenger in a taxi owned by the fourth defendant and driven by the third defendant when it was involved in an accident, causing him serious injuries. The Fourth defendant is vicariously liable for the actions of the Third defendant. He says he has been informed and verily believes that by the time this matter is heard, the Fourth Defendant would have sold his property and/or remove or dispose the monies and assets of the company, rendering impotent any judgment in his favour.
   

The submissions

3. Mr. Prasad for the Plaintiff says the test for a mareva injunction is that there be an “inherent fear” of the dissipation of assets.
   
4. Mr. Sharma for the Fourth Defendant chose not to file an answering affidavit and made oral submissions on the law only. He submitted that the standard for a mareva injunction is much higher than an ordinary injunction. The Plaintiff must show a “more” arguable case. He says the Plaintiff has not stated the source of his belief and information in paragraph 9 of his affidavit. The Plaintiff has not adduced evidence that the Defendant is trying to dissipate his assets. Mr. Sharma says the affidavit evidence is insufficient for the Court to make any orders against the Fourth Defendant.
   

The law

5. In Silver Beach Properties Ltd v Jawan [2011] FJCA 48; ABU0042.2009 (29 September 2011), Chitrasiri JA stated at [18]:

The law recognizes two pre-conditions when issuing Mareva Injunctions. First being the applicant proves its case to the required minimum standard and the second being that there is a danger by reason of the defendant absconding, removing its assets from the jurisdiction or dissipating them in order to negate the judgment being executed, in the event the plaintiff succeeds at the end.

6. In Fiji Islands Revenue and Customs Authority v Interval Holidays (Fiji) Ltd [2004] FJHC 246; HBC0075.2004 (17 September 2004), Winter J cited the test for mareva injunction in the judgment of Gault J in Bank of New Zealand v Hawkins [1989] 1 PR N as foas follows:

An applicant for a mareva injunction must show that:

(a) It has a good arguable case on its substantive claim. This threshold requirement is more onerous than that normally applied in the case of interlocutory injunctions of a serious question to be determined.

(b) There are assets of the defendant within the jurisdiction to which orders can apply. Providing the plaintiff produces evidence of some assets, if the defendant is not forthcoming by way of disclosure of his assets in ... (Fiji)... the court may infer that this requirement is met.

(b) There is a real risk that the defendant will dissipate or dispose of assets so as to render himself “judgment proof”. Mere assertion of belief that the defendant might dissipate his assets unsupported by solid ground justifying that belief is insufficient. On the other hand, affirmative proof of likelihood of dissipation or of an nefarious attempt is not necessary.

Analysis

7. The issue for the Court’s determination is whether a mareva injunction ought to be ordered against the fourth Defendant. For this, the Plaintiff must meet the stringent test in Hawkins (supra).
   

A good arguable case

8. In Fiji Islands Revenue and Customs Authority v Intervlidays (Fiji) Ltdd Civil Action No. HBC 0075 of 2014, Judgment of 17 September 2004, Winter J stated that the affidan support must “advance sufficient evidence from which the court can glean the existexistence of a “good arguable case.””
   

A “good arguable case” is one which “is more than barely capable of serious argument and not necessarily one which the judge believes to have a better than 50% chance of success.” (FIRCA v Interval Holidays (Fiji) Ltd) (supra); The Niedersachsen [1984] 1 ALL ER 398 at page 415 per Kerr LJ).

9. A perusal of the affidavit in support shows that the Plaintiff has not addressed any of the elements of the test. Apart from saying that the Plaintiff who was a passenger in a vehicle owned by the fourth defendant and driven by the third defendant, and had suffered injuries as a result of an accident involving the said vehicle, the Plaintiff makes no attempt, either in its affidavit or in counsel’s submissions, to say that it has an arguable case, let alone a good one.
   

Assets within the jurisdiction

10. No evidence is before the Court that the fourth defendant has any assets at all. All that the Plaintiff deposes is that he has been informed and verily believes that the Defendant “will sell his property and or will remove or dispose the monies and assets of the company to some family name or account.”
    
11. Order 41 rule 5 of the High Court Rules permits statements of information or belief provided the sources of the information and grounds of the belief are given. With the belief and information of the deponent in paragraph 9 of his affidavit being therefore impermissible hearsay, I cannot consider it in this application. Similarly, the attempt to give evidence from the bar table as to the assets of the Defendant cannot succeed.
    
12. As such, there is nothing before the Court to say that the fourth defendant has any assets in the jurisdiction, let alone that they will be dissipated or disposed of, absent a mareva injunction.
    

A real risk of dissipation or disposal

13. Apart from what I have deemed impermissible hearsay in paragraph 9 of the affidavit in support, there is no evidence at all meeting the high standard of there being a real risk that the defendant will dissipate or dispose of his assets.
    
14. The so called “inherent fear” of dissipation that counsel says is the test for a mareva injunction is not supported by authority.
    

Conclusion

15. Having considered the affidavit in support as well as counsel’s submissions, I find that the Plaintiff falls far short of satisfying the test for a mareva injunction.
    

Orders

(1). The Plaintiff’s application for mareva injunction is dismissed, with costs summarily assessed at $300.

S.F. Bull

Acting Master