Kontiki Finance Ltd v Nale [2022] FJHC 89; HBC49.2022 (1 March 2022)

IN THE HIGH COURT OF FIJI

AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 49 of 2022

BETWEEN:

KONTIKI FINANCE LIMITED a limited liability company licensed as a Credit Institution, having its registered office at Level 5, Tappoo City, Suva.

PLAINTIFF

AND:

JEKE LOITI NALE also known as JEKE LOITI of Lot 12 Nawanawa Road, Nadera, Nasinu and P.O Box 696, Suva, Manager Sales Administration and Corporate Affairs of Paradise Beverages (Fiji) Limited.

DEFENDANT

BEFORE:
Hon. Mr. Justice Vishwa Datt Sharma

COUNSELS:
Mr Goundar K. for the Applicant
No Appearance for the Respondent

Date of Decision:
Tuesday 1^st March 2022 at 9.30am

DECISION
[Inter Parte Notice of Motion seeking Injunction and Restraining Orders pursuant to Orders 3 Rule 2 and 4,
Orders 29 & 24 Rule 3 of the High Court Rules 1998. Section 21 of the Constitution and
Inherent Jurisdiction of this Honourable Court.]

1. Before Court is the Plaintiff’s Inter Parte Notice of Motion filed on 3^rd February 2022 seeking for the following orders:-
   • (i) An Injunction restraining the Defendant from leaving the jurisdiction of this Honourable Court until determination of the herein proceedings.
   • (ii) An injunction restraining the Defendant from selling and/or disposing of and/or transferring to and/or dealing with and/or removing from the jurisdiction of this Honourable Court any and all assets and monies over which the Defendant has ownership and control until $18,584.26 (Eighteen Thousand Five Hundred Eighty Four Dollars and Twenty Six Cents) together with interest and costs as claimed herein, is paid in full by the Defendant.
   • (iii) The Defendant filed an Affidavit of his assets and monies wherever located with this Honourable Court within fourteen (14) days of service of the order and in the said Affidavit disclose the full value of all and each of their assets within the jurisdiction of this Honourable Court identifying with full particularity the nature and whereabouts of all such assets, particularly the identity of all bank, financial or other accounts, whether the same is held in his own name or jointly or by nominees such as his children or companies on his behalf.
   • (iv) The Defendant deliver his Passport and Travel documents held by him to this Honourable Court save and unless the Defendant can provide free and unencumbered assets belonging to the Defendant having a total value of not less than $18,584.26 (Eighteen Thousand Five Hundred Eighty Four Dollars and Twenty Six Cents) together with interest and costs as claimed herein and/or in the alternative the Defendant only be permitted to travel on either payment of the said sum to this Honourable Court immediately or by giving security to the satisfaction of the Plaintiff and this Honourable Court that the debt and/or any judgment entered would be satisfied.
   • (v) That a Writ of Ne Exeat Civitate be issued and directed to the Sheriff of the High Court of Fiji and his Deputy and all his constables and all Police Officers and all Customs and Immigration Officers commanding them that in the event that the Defendant should seek or attempt to depart from and/or enter into the jurisdiction of the High Court of Fiji, they should arrest the Defendant and bring the Defendant before a Judge of the High Court of Fiji as soon as possible.
   • (vi) That costs of this application shall be paid by the Defendant; and
   • (vii) Any further order(s) and/or relief(s) as this Court may deem fit.
2. The Application is made in support of an Affidavit deposed by Bhavishna Chand.
3. The Defendant was personally served with the Writ of Summons and Inter Parte Notice of Motion on 4^th February 2022 at 3.30pm at his residence at Shalimar Street, Samabula, Suva.
4. He failed to appear before the Court on the returnable court date of 7^th February 2022 and/or file any Affidavit in response. Orders sought at paragraph [1](i) hereinabove was granted as an Interim Injunction restraining the Defendant from leaving the Jurisdiction on 7^th February 2022.
5. The Application was adjourned for hearing and determination of the remaining orders sought at paragraphs [1] (ii) to (iv) inclusive.
6. It will be noted that the Plaintiff is seeking for an Order for Writ Ne Exeat Civitate. Refer to case of Chiou v. Wang [1994] FJHC 160; HBC0466d.94s (31 October 1994). The Honourable Justice Byrne relied on the following interpretations to ascertain what constitutes “A Good Arguable Case”:-

“As to what constitutes a good arguable case our own Court of Appeal in Civil Appeal No. 31 of 1993 Girdharlal Raniga v. Merchant Bank of Fiji and Civil Appeal No. 38 of 1993 Merchant Bank of Fiji v. Girdharlal Raniga said in a judgment delivered as recently as the 11th of August 1994 at p.5:

"Successive cases have made it clear that there is a difference (albeit a subtle one) between a "good arguable case" and a "serious question"."

The Court then went on to refer to the remark of Parker L.J. in Derby Weldon (No. 1) (1990) 1 Ch. 48 at p.64 to illustrate the difficulty in defining that difference. Parker L.J. said:

"In my view the difference between an application for an ordinary injunction and a Mareva injunction lies only in this, that in the former case the plaintiff need only establish that there is a serious question to be tried, whereas in the latter the test is said to be whether the plaintiff shows a good arguable case. The difference .... is incapable of definition ...."

The Court of Appeal then continued that a good arguable case requires a higher standard of proof than for a serious question.

As to what constitutes a good arguable case in practice depends on the facts of each case but I would attempt to define it as at least a case which is more than barely capable of serious argument and yet not necessarily one which a Judge believes to have a better than 50 percent chance of success.”

[our emphasis]

7. The Defendant was a customer of the Plaintiff in respect of Pre-Contractual Disclosure Statement and Letter of Offer executed between him ad the Plaintiff on 11 April 2017.
8. The Defendant obtained financial credit from the Plaintiff in the total sum of $11,206.18 together with interest.
9. The loan was drawn down on 12^th April 2017. The Defendant failed in his bid to be consistent with installment payments from February 2018 and hence fell into arrears.
10. Default notices were served onto the Defendant on 18^th October 2019 and 25^th August 2021 and the demand by the Defendant was not fully satisfied. The total outstanding sum of $18,584.26 with accumulated interest became due and payable.
11. The Defendant’s Account with the Plaintiff continues to remain in arrears and as at 12^th January 2022, the total sum outstanding was $18,584.26 with interest accumulating at the rate of 29.44% per annum.
12. The Defendant had absconded the jurisdiction to reside in America since February 2018, without due notice to the Plaintiff and may avoid liability.
13. However, on 27^th January 2022, the Plaintiff’s Bailiff confirmed that the Defendant had arrived in Fiji from America and may return to America on or about 9^th February 2022.
14. This prompted the Plaintiff to file the current application and seek for the Injunctive and Restraining Orders as enumerated at paragraph [1](i) to (vii) inclusive.
15. The Defendant was appropriately served with the Inter-Parte Notice of Motion together with the Writ of Summons, Affidavits and all other documentations. He failed to appear in Court.
16. However, on the Affidavit evidence before Court, the Plaintiff has established a prima facie case for a good arguable case against the Defendant for his failure to clear the arrears of loan outstanding with the Plaintiff as per the statement of accounts annexure ‘C’ within the Affidavit in Support filed herein before leaving the Fiji shores for overseas.
17. Further, the affidavit evidence reveals that the Defendant has a permanent visa and remained in America since February 2018 until his recent short visit to Fiji in January 2022 and there is likelihood that the Defendant may contine to dispose or dissipate his existing assets; life insurance, motor vehicle registration HY 662 and a family house. It is noted that Annexure ‘D’ does not show any evidence of any title and/or lease to the family home.
18. On the first returnable date of the Application on 7^th February 2022, this Court reluctantly granted the 1^st order in terms of “an interim injunction restraining the Defendant from leaving the jurisdiction until hearing and determination of the remaining orders sought within the Inter-Parte notice of motion”.
19. The guidelines laid down by Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 are still regarded as the leading source of the law of injunction where it was held that in granting or refusing of interim injunction following guidelines can be taken into consideration:

(a) A serious question to be tried at the hearing of the substantive matter.

(b) Whether the damages is an adequate remedy.

(c) In whose favour the balance of convenience lie if the injunction is granted or refused.

In the case of Cambridge Nutrition Ltd v BBC [1990] 3 All ER 523 at 534j Kerr L.J. made the following observations;

“It is important to bear in mind that the American Cyanamid case contains no principle of universal application. The only such principle is the statutory power of the court to grant inunctions when it is just and convenient to do so. The American Cyanamid case is no more than a set of useful guidelines which apply in many cases. It must never be used as a rule of thumb, let alone as a straightjacket.... The American Cyanamid case provides an authoritative and most helpful approach to cases where the function of the court in relation to the grant or refusal of interim injunctions is to hold the balance as justly as possible in situations where the substantial issues between the parties can only be resolve by a trial.”

In Hubbard & Another v Vosper & Another [ 1972] 2 Q.B. 84 Lord Denning said:

“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 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 upon the defendant but leave him free to go ahead. .... 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.”

20. The Plaintiff’s contention is that the Defendant entered into a credit contract with the Plaintiff on 11^th April 2017 and obtained financial credit in the total sum of $11,206.18 to travel to the United States of America.
21. The account fell into arrears. Reminders and overdue notices were issued to the Defendant but he continuously failed to satisfy the demand for arrears. Hence a total of $18,584.26 with interest accumulated.
22. The Defendant had migrated to the United States of America in January 2018, recently in January 2022 he was back in the country and there was information and evidence that the Defendant would leave the shores on 9^th February 2022.
23. The Plaintiff was in fear that the Defendant may leave the shores to reside overseas and avoid the liability to the Plaintiff.
24. The Plaintiff has given an undertaking as to damages.
25. The cause of the substantive action hinges on the loan taken by the Defenant from the Plaintiff and has failed to satisfactorily settle the same. The loan is accumulating interest and the Plaintiff is putting in every effort to recover the same at its earliest.
26. Bearing above in mind, I proceed to grant the remaining interim relief and orders as hereunder:-
    • (i) An injunction restraining the Defendant from selling and/or disposing of and/or transferring to and/or dealing with and/or removing from the jurisdiction of this Honourable Court any and all assets and monies over which the Defendant has ownership and control until $18,584.26 (Eighteen Thousand Five Hundred Eighty Four Dollars and Twenty Six Cents) together with interest and costs as claimed herein, be paid in full by the Defendant.
    • (ii) The Defendant file an Affidavit of his assets and monies wherever located with this Honourable Court within fourteen (14) days of service of the order and in the said Affidavit disclose the full value of all and each of their assets within the jurisdiction of this Honourable Court identifying with full particularity the nature and whereabouts of all such assets, particularly the identity of all bank, financial or other accounts, whether the same is held in his own name or jointly or by nominees such as his children or companies on his behalf.
    • (iii) The Defendant deliver his Passport and Travel documents held by him to this Honourable Court save and unless the Defendant can provide free and unencumbered assets belonging to the Defendant having a total value of not less than $18,584.26 (Eighteen Thousand Five Hundred Eighty Four Dollars and Twenty Six Cents) together with interest and costs as claimed herein and/or in the alternative the Defendant only be permitted to travel on either payment of the said sum to this Honourable Court immediately or by giving security to the satisfaction of the Plaintiff and this Honourable Court that the debt and/or any judgment entered would be satisfied.
    • (iv) That a Writ of Ne Exeat Civitate be issued and directed to the Sheriff of the High Court of Fiji and his Deputy and all his constables and all Police Officers and all Customs and Immigration Officers commanding them that in the event that the Defendant should seek or attempt to depart from and/or enter into the jurisdiction of the High Court of Fiji, they should arrest the Defendant and bring the Defendant before a Judge of the High Court of Fiji as soon as possible.
    • (v) Costs to be in the cause.
    • (vi) The substantive Writ of Summons to take its normal cause of action and is adjourned to 18^th March 2022 at 9.30am.
      

Dated at Suva this 1^st Day of March, 2022.

..............................................
Vishwa Datt Sharma
Judge

cc: Kumar Goundar Lawyers, Suva.

Jeke Loiti Nale