IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
Civil Action No. HBC 3 of 2016

BETWEEN	: 	ANJELINE SANJESHNI MALA	 of Solove, Wailevu, Labasa, Self Employed, as Administratix of the Estate of Mustafa Khan
PLAINTIFF

AND	:	LAISENIA KORONIVACIof Natua, Seaqaqa, Driver.
1stDEFENDANT

AND	:	TUFFEALS TRANSPORT LIMITEDa limited liability company having its registered office at Krishna Investment Building, Main Street, Naseakula Road, Labasa, P.O. Box 761, Labasa.

2nd DEFENDANT

AND	:		MOHAMMED TILAWAT KHAN & FAREEN NISHA both of Seaqaqa, Managing Director and Director respectively.
3rd DEFENDANTS

Appearances	:		Maqbool& Co. for the Plaintiff
No appearance for the 1st Defendant
Samusamuvodre Law for 2nd& 3rdDefendants

RULING
Introduction
1.	On 8 February 2016, the Plaintiff as Administratix in the estate of Mustafa Khan filed a writ of summons against the Defendants seeking, inter alia, orders restraining the 2nd and 3rd Defendants from selling, transferring, disposing their assets until final determination of this action; damages under the Law Reform (Miscellaneous Provisions) Death and Interests Act or alternatively, under the Compensation to Relatives Act for the estate and for the benefit of the dependants of the deceased; general damages, punitive and exemplary damages in the sum of $20,000, indemnity costs in the sum of $10,000, special damages in the sum of $10,000.00, interest, and such further relief as the Court deems just and expedient.

2.	On 4 March 2016, it made an application to restrain the 2nd and 3rd Defendants from selling, transferring, disposing, or in any way encumbering their assets until the final determination of this action.  That application was granted ex parte with the application to thereafter proceed inter partes.  There was delay on account of counsel for the Defendants’ obtaining instructions from his clients in respect of the injunction, and further delay in the filing of answering affidavits, and finally, the hearing.

The law
3.	In American Cyanamid v. Ethicon Limited[1975] UKHL 1; [1975] 1 All ER 504, Lord Diplock stated, “The grant of an interlocutory injunction is a remedy that is both temporary and discretionary.”  

4.	As a temporary remedy, it is obtained before the final determination of the parties’ rights in an action and so it is framed in such a way as to show it is to last only until the determination of the matter concerned.

5.	The principles on the grant of interim injunctions and whether to dissolve such an injunction pending the determination of the matter are settled, andwere stated by Lord Diplock in Cyanamid(supra)as being:

(i)	whether there is a serious question to be tried;
(ii)	whether damages be an adequate remedy, and;
(iii)	the balance of convenience.

6.	Where an interim injunction has been granted ex parte, the Plaintiff bears the onus of satisfying the Court that the injunction ought to continue.  (See Westpac Banking Corporation v. Adi Mahesh PrasadCiv App ABU 27 of 1997S (FCA Reps 99/1)

7.	In Digicel (Fiji) Ltd v Fiji Rugby Union [2016] FJSC 40; CBV0004.2015 (26 August 2016), Marsoof J stated:

According to the procedure adopted by our courts which are called upon to decide any application for interlocutory injunction, the evidence consists entirely of admissions on record by way of pleadings and the content of affidavits that are filed by the parties.

Analysis
8.	The first issue for determination is whether there is a serious question to be tried.  This is the threshold test or question.  In Digicel (Fiji) Ltd v. Fiji Rugby Union [2016] FJSC 40; CBV0004.2015 (26 August 2016), Keith J, referring to the principles set out by Lord Diplock in Cyanamid(supra), stated:

The court first considers whether there is a serious issue to be tried. That does not mean that the court must be satisfied that there is a strong case for granting an injunction at the trial of the action. If an interlocutory injunction is to be granted, the court only has to be satisfied that the claim is neither frivolous nor vexatious.

9.	In deciding this issue, I have considered the material before me, namely, the pleadings, Plaintiff’s affidavit in support, the Defendants’ answering affidavit, and Defendant Counsel’s submissions.  The Plaintiff did not file an affidavit in reply and only counsel for the Defendants made submissions at the hearing.

10.	On the threshold question, the 2nd and 3rd Defendants concede the existence of serious triable issues.  This is a fair concession.  

11.	Their contention, however, is that damages are an adequate remedy since the Plaintiff is only claiming for compensation; the Plaintiff should have come by way of a Mareva injunction; the order prayed for in (a) of the Notice of Motion cannot be granted by the Court since it is not pleaded in the writ of summons, and; the Plaintiff’s undertaking as to damages is insufficient.

12.	Mr. Sharma’s first objection as to the form of the application which he says ought to have been by way of a Mareva injunction, has some force.  

13.	A prohibitory injunction such as that sought by the Plaintiff in this case has the effect of stopping a defendant from committing a continuing tort, or prohibiting tortious conduct from continuing or being repeated.  Indeed, The Supreme Court Practice 1999, at 29/1A/2 states:
An injunction is an order of the court restraining the commission or the continuance of some wrongful act, or the continuance of some omission.  

14.	On the other hand, a Mareva injunction, also known as a freezing injunction, restrains a debtor or defendant from dissipating or hiding his assets so as to frustrate or render ineffective any judgment or order made by a court against him.  As stated by the Court of Appeal of New South Wales in Riley McKay Pty Limited v. McKay (1982) 1 N.S.W.L.R. 264 at page 276, a Mareva Injunction

...is founded on the risk the Defendant will so deal with his assets that he will stultify and render ineffective any judgment given by the Court in the Plaintiff’s action, and thus impair the jurisdiction of the court and render it impotent properly and effectively to administer justice...

15.	On the effect of a Mareva injunction, The Supreme Court Practice (supra) at 29/L/36 states that it restrains

… the defendant from disposing of, or even merely dealing with, his assets, being assets over which the plaintiff asserts no proprietary claim but which after judgment may be attached to satisfy a money judgment.  One of the hazards facing a plaintiff in litigation is that, come the day of judgment, it may not be possible for him to obtain satisfaction of that judgment fully or at all.  By a Mareva injunction a defendant may be prevented from artificially creating such a situation; a defendant is not to be permitted to thwart in advance orders which the Court may make.

16.	On the material before me, there is no evidence that the Defendant is or was committing a continuing tort, or that the Defendant had engaged in tortious conduct likely to be repeated,warranting a prohibitory injunction of the nature sought by the Plaintiff.  

17.	I would agree with Defendants’ counsel that the Plaintiff ought to have come by way of an application for a Mareva Injunction, the threshold test of which is more onerous than that normally applied in the case of interlocutory injunctions. (Bank of New Zealand v Hawkins(1989) 1 PR NZ 451; FIRCA v Interval Holidays (Fiji) Limited & OthersCivil Action No. HBC0075 of 2004) Againstthe stringent requirements of that test, the material in the Plaintiff’s affidavit in support falls far short. 

18.	Even if I were wrong in this regard, I consider thereto exist more than sufficient reasons why the existing interim injunction ought not to continue, bearing in mind that it is the Plaintiff that carries the onus of satisfying the Court that the interim injunction should continue.  

19.	Firstly, the Plaintiff has not placed before the Court anything to indicate that damages would not be an adequate remedy, or even that the balance of convenience lies in favour of a grant. 

20.	Secondly, the Plaintiff’s undertaking as to damages is insufficient, it not being supported by any evidence as to her financial position.  The result of the failure of the Plaintiff to address these very relevant issues in her affidavit is that the Court is unable to assess the adequacy or otherwise of damages, or even whether the Defendants will suffer hardship, prejudice or inconvenience.

21.	In Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd [2004] FJCA 59; ABU0011.2004S & ABU0011A.2004S (26 November 2004), the Court of Appealsaid:

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.

22.	Inthe absence of any evidence of the Plaintiff’s means, her undertaking as to damages issadly inadequate, and it is not possible to say whether damages are an inadequate remedy, or even that the balance of convenience favours the granting of an interim injunction.

23.	Where an injunction has been granted ex-parte, the Plaintiff bears the onus of satisfying the Court that the injunction ought to continue. I am not satisfied the Plaintiff has done that here.  No reply was made to the Defendants’ answering affidavit challenging the ex parte injunction on the ground of absence of evidence that the Defendants intend to or have attempted to dissipate their assets, or intend to leave the country.   Moreover, the Defendants’ contention inter alia, thatdamages are an adequate remedy and that the Plaintiff’s undertaking as to damages is insufficient, stands undisputed.  

24.	In evaluating affidavit evidence, the failure to contradict an issue, or reply specifically to a material allegation, is treated as an acceptance or admission of the said issue or allegation.  In Dawkins v Prince Edward of Saxe Weimar [1875]-76] 1 QBD 499 at 501, Blackburn J, referring to the failure of the plaintiff there to reply to the defendant’s affidavits:
Upon that I can come to no conclusion, except that the defendants’ affidavits are strictly true, and are admitted to be strictly true.

25.	In this jurisdiction, the Court of Appeal inPrakash v Chandra Civil Appeal No. ABU 0037/1985, had this to say about the failure of the appellant to reply to a matter deposed to by the respondent in her affidavit:

Of course he did not have to respond. In our view, however, the course events had taken and the consequences if he did not respond, rendered it a matter of prudence that he should reply - if indeed he had a reply.  And in the circumstances of the case, in the absence of a reply, we hold the inference inescapable that what the respondent has said to be true.

26.	For the reasons given above, I consider that the Plaintiff has failed to satisfy the Court that the injunction obtained ex parte by it ought to continue.

27.	Order
1.	The interim injunction granted 8 March 2016 is dissolved forthwith with costs for the 2nd and 3rd Defendants in the sum of $800.00.

Dated at Labasa this 8th day of September 2017

S.F. Bull
Acting Master