Waqa v Gideon [2020] FJHC 747; HBC 68 of 2020 (28 August 2020)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION No. HBC 68/2020

BETWEEN SOLOMONI GAVITI WAQA of Lautoka, Businessman

PLAINTIFF

AND VIRENDRA KUMAR GIDEON of Lautoka, Hotel worker

DEFENDANT

APPEARANCES : Mr Tunidau for the Plaintiff

Mr Anthony for the Defendant

DATE OF HEARING : 20 July 2020

DATE OF DECISION : 28 August 2020

DECISION

1. On 20 March 2020 I made orders on the ex parte application of the plaintiff as follows:
   
   1. An order restraining the defendant whether by himself and/or through his servants, agents or otherwise whosoever from interfering, restricting and denying the Plaintiff from occupying and residing in the dwelling house situated at 12 SM Koya Road, Kashmir, Lautoka.
   2. An order that the Defendant reconnect forthwith electricity supply to the dwelling house situated at 12 SM Koya Road, Kashmir, Lautoka.
   3. An order restraining the Defendant whether himself and/or through his servants, agents from disconnecting water supply to the dwelling house situated at 12 SM Koya Road, Kashmir, Lautoka.
   4. The costs of this application be paid by the Defendant.
   5. The case is adjourned for mention to 10.30am on 24 April 2020.
   6. Leave is granted to the Defendant to apply on notice to set aside orders of the Court.
      
2. In his affidavit in support of the ex parte application the plaintiff said:
   
   1. that he had rented the defendant’s house at 12 SM Koya Road, Lautoka for 12 months in November 2019, at a rental of $500.00 per month, and by February 2020 had paid all the rent in advance to the end of the term. He said he took the property for a year because he was in the process of building a house on his land in Tavakubu, and the building was expected to be completed by November 2020. The property was to be occupied by him, his wife and nine children ranging in age from 7 years up to adulthood.
      
   2. The plaintiff said that although he had receipts for some of the rental payments he had made, the defendant had not given him receipts for the bulk of the payments including a payment of $4500 made in February 2020, promising to do so ‘later’. The plaintiff also said that he had signed a tenancy agreement, but again, he was not given a copy of this by the defendant.
      
   3. He said that the defendant had apparently sold the property, and was now trying to evict him from the property. The plaintiff had received a letter dated 3 March 2020 from the defendant’s solicitor demanding that he vacate the property within 30 days. There is no reference in this letter to arrears of rent which the defendant now says dated back to December. After the plaintiff’s solicitor contested this demand – and notwithstanding that the 30 days had not expired - the defendant cut off the electricity and water supplies (on 9^th March), and served on the plaintiff (on 11 March) a distress notice complaining about arrears of rent of $1150.00 for part of January, February and March. On 18 March (again before the notice period given in the letter of 3 March had expired) bailiffs attended the property and evicted the plaintiff and his family, at which point the plaintiff issued a writ of summons and applied for an injunction to allow him to get back into the property pending the outcome of the dispute.
      
5. It appears that following the orders made by me on 20 March the plaintiff was able to resume occupation of the property, and is still there.
   
6. On 14 July 2020 the defendant applied, in accordance with the leave given, to discharge the orders of 20^th March. In doing so he relied on an affidavit he had made dated 16 April 2020 in reply to the plaintiff’s evidence in support of his ex parte application. In this affidavit the defendant says:
   
   1. he owns the property at 12 SM Koya Road in his capacity as executor in the estate of his late father, who died in 2017.
      
   2. the tenancy agreement with the plaintiff was to be for three months only. A copy of an unsigned front page, and a signature page of a tenancy agreement is annexed to the defendant’s affidavit. Only these two pages are provided, even though it is clear that there are other pages in the form. The front page says that the tenancy is intended to be for 3 months. In his affidavit in response the plaintiff says that the tenancy agreement he signed consisted of five pages (he describes what was provided on these pages), and that he and the defendant initialled every page. He says that the front page of the form annexed by the defendant is not known to him, as it is not initialled. He also says that when he signed the tenancy agreement with the defendant there was no-one else present. He does not know who the person is who has purported to witness his signature on the tenancy agreement.
      
   3. The tenancy agreement was for 3 months only, expiring 9 February 2020.
      
   4. The house was to be occupied by only 5 people (this is not provided for in the tenancy agreement).
      
   4. No rent was paid for the months of December, January & February, and the total amount owed for rent for is $2180.00 (the distress notice issued by the defendant in March 2020 refers to arrears of rent of $1150.00 only for part of January, February and March).
      
   5. The defendant had sold the property, and the purchaser was entitled to move in. Although a copy of the sale agreement was attached it was not dated, and there is no indication whether it was entered into before or after the tenancy was agreed.
      
7. On an application for interim injunction (and the same applies where, as here the application is to discharge an injunction that has already issued) the well-known principles enunciated in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 apply. In that case, by the time it reached the House of Lords, there had already been 11 days of court time spent on the case (3 in the High Court, and 8 in the Court of Appeal). The House of Lords gave leave to appeal in an attempt to establish principles for such applications that would enable them to be decided more efficiently, and predictably. Lord Diplock’s following comments should be understood in light of this background:
   

My Lords, when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff's legal right is made on contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesis the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction; but since the middle of the 19th century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the plaintiff had not been entitled to restrain the defendant from doing what he was threatening to do. 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 be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be 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.

I do not understand the phrase I have underlined as meaning that an interim injunction must be refused where damages can be awarded should the claim be upheld. If that were the intended meaning there would be very few cases where an interim injunction could be granted. In the context of the case it is, I think, a comment in which the key word is ‘adequately’. In the process of weighing the balance of convenience the court must look at the whole extent of possible damage to the plaintiff, and to the defendant, depending on whether the injunction is granted or not, and which party ultimately succeeds in its claim or defence. In a purely commercial case between business entities it may be that damages are readily assessable, able to be paid, and so will adequately compensate for all losses. That may not be so in other cases, where more personal interests are involved that may not be so susceptible to assessment in monetary terms.

8. Hence the principles to be applied in deciding whether an interim injunction should issue are whether there is a serious question to be tried, and if so, where does the balance of convenience lie. In NWL Ltd v Woods [1979] 3 All ER 614 followed by the New Zealand Court of Appeal in Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] NZCA 70; [1985] 2 NZLR 129 the House of Lords recognised the need to also take into account the overall justice of the case. As Denning LJ explained in Hubbard v Vosper [1972] 1 All ER 1023, at 1030:
   

In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also to the strength of the defence, and then decide what is best to be done. Sometimes it is best to grant an injunction so as to maintain the status quo until the trial. At other times it is best not to impose a restraint on the defendant but leave him free to go ahead. For instance, in Fraser v Evans, although the plaintiff owned the copyright, we did not grant an injunction, because the defendant might have a defence of fair dealing. The remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules.

9. While it is not part of the court’s role on an interim injunction application to decide on issues of credibility issues, there are contradictions in the defendant’s evidence between what he says the agreement was, and what was done by him and his advisers (e.g. no reference to the agreed three-month term or arrears of rent in the letter from his solicitors), and some gaps (incomplete tenancy agreement, and lack of information on the sale) in areas where more information may have confirmed either parties’ version of events. Given the conflicts in the evidence there is clearly a serious question to be tried on the issue of whether the tenancy given by the defendant to the plaintiff in November 2019 was for twelve months as the plaintiff says, or only for 3 months as the defendant insists.
   
10. In his submissions in support of the discharge of the interim injunction made on 20 March 2020 counsel for the defendant focussed mainly on the argument that this is a case where the plaintiff can be compensated in damages if the injunction is denied/discharged, but the plaintiff is ultimately successful in his claim that he was entitled to remain in the house until November 2020. I accept that the monetary sums involved here are not large. Given that it is now the end of August, if the injunction is set aside and the plaintiff is forced to leave the house before 9 November 2020 when his tenancy expires, his monetary loss will be the amount he has paid (if, as he insists, he has paid it) for rent from the date of his eviction to the expiry of the term. As matters stand that is a little over $1000.00, an amount that is within the jurisdiction of the Small Claims Tribunal.
    
11. On the other hand, the same is also true of the defendant’s position. The defendant (who is the executor in his father’s estate) appears to have sold the property, and wishes to recover possession so that he can complete the sale. Presumably, although the situation has not been fully explained, as a result of the plaintiff’s continued occupancy the defendant will become liable for damages for late settlement of the sale. This amount too can be compensated for by the plaintiff in damages should the plaintiff ultimately fail in his action. There is no suggestion in the defendant’s evidence that the delay in settlement in some way jeopardizes the sale.
    
12. The difference in the parties respective positions is I think to be found in the fact that while the grant/extension of the interim injunction will, if the defendant is ultimately successful, only result in him incurring damages, which can be paid by the plaintiff, the refusal of the injunction will mean that the plaintiff and his family are evicted from their home (albeit only their temporary home) and will need to find somewhere else to live. While the loss of rental can readily be compensated in damages (the plaintiff has provided the usual undertaking as to damages, and has given evidence to show that he has the means to pay), the loss of the home cannot. As the plaintiff notes, he has a big family, and he may struggle to find somewhere suitable to move the family to, particularly for a short period until their home in Tavakubu is completed.
    
13. Taking into account all these factors I do not agree that the interim injunction made on the 20^th March should be discharged. I do however note that in giving the decision I did on that date I inadvertently included reference to the plaintiff’s application for costs. I did not intend, on an ex parte application for interim injunction, to accede to the application for costs, which will need to await the ultimate outcome of the proceedings for determination. Costs on the original application, and on this application, are reserved.
    

__________
A.G. Stuart
Judge

At Lautoka this 28^th day of August, 2020

SOLICITORS:
Kevueli Tunidau Lawyers, Lautoka – Plaintiff
AC Law, Lautoka, - Defendant