Carlton Brewery (Fiji) Ltd v LEES Transport Ltd [1978] FJSC 64; Action 236 of 1978 (15 November 1978)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
CIVIL JURISDICTION

Action No. 236 of 1978

BETWEEN

CARLTON BREWERY (FIJI) LIMITED
Plaintiff

AND

LEES TRANSPORT LIMITED
Defendant

Mr. B. Sweetman, Counsel for the Plaintiff
Mr. S. M. Koya, Counsel for the Defendant

JUDGMENT

The plaintiff's writ and Statement of Claim allege that the defendant is using the plaintiff's beer bottles for bottling the defendant's aerated waters.

A declaration is sought to the effect that the defendant is not entitled to retain possession of the plaintiff's bottles; an account; damages for conversion; a return of the plaintiff's bottles held by the defendant and an injunction restraining the defendant from using the plaintiff's beer bottles.

The Statement of Defence alleges that the plaintiff is selling bottles of beer has parted with ownership of the bottles as well with possession; and denies that it holds or uses any bottles belonging to the plaintiff.

The Statement of Claim alleges in para 4(a) that the bottles bear a notice moulded on them that they remain the property of the plaintiff.

It is noteworthy that the Statement of Defence does not deny the existence of that proprietary declaration moulded on the bottles but simply does not admit it.

The writ was filed on 8th August this year and now the plaintiff seeks an interim injunction restraining the defendant from using the kind of bottles which the plaintiff alleges belong to it.

Counsel for the defence criticised para 2 of the plaintiff's affidavit in support of the interim injunction application which swears that the Statement of Claim is, in effect correct. However, para 2 is followed by facts which support the allegations in the Statement of Claim.

The defence affidavit is on lines similar to the defence. This application is not concerned with conjectures as to the possible outcome of the proceedings but I have to be satisfied that there is a matter for serious consideration. I have no doubt on that aspect.

Mr. Koya, for the defendant, has urged that damages have been claimed and therefore should be assessable for the period preceding the actual hearing date and that an award of damages will be a proper way of dealing with the situation. It seems to me that the plaintiff's damages will be very difficult indeed to assess and that any attempt to do so would involve considerable evidence as to costing. In my view the prospect of receiving damages and any undertaking to pay them will not be a satisfactory mode of dealing with this problem from the plaintiff's position.

The defendant's position is somewhat similar. He has bottles with the alleged proprietary markings upon them and must know how many he holds. If he is restrained from using them it may or may not affect his ability to dispose of the aerated water which he wishes to bottle and to manufacture. There can be no point in manufacturing more aerated water than he can bottle. If it affects his sales he can as from now it begin to keep an account thereof and to formulate his claim for damages until he obtains an alternative supply of bottles.

However, one cannot say that a probable interruption in his business may cost him in terms of good will if his supply of bottles is seriously restricted.

It is therefore necessary to try and determine the issue on the balance of convenience. As was pointed out in American Cyanamid v. Ethican [1975] UKHL 1; 1975 1 A.E.R. 504 at 511 b & c if the defendant is temporarily enjoined to stop doing something which he has been doing in the course of an established enterprise it could cause great inconvenience to him since he may have to establish himself again.

An interim injunction in this case would not halt the defendant's enterprise but it could seriously affect the flow of his business. This is supported by the plaintiff's allegation that the defendant has been using such bottles in 1arge quantities for over 2 years.

On the other hand, I apprehend that refusa1 of an interim injunction will in no way halt the flow of beer from the plaintiff's breweries. I can take judicial notice of the fact that the plaintiff's have no competitor at present in the manufacture of beer and there can be little fear of a loss of good will.

On balance I am of the opinion that the defendant would be subject to greater inconvenience by a grant of the injunction than the plaintiff will be by its refusal.

The plaintiff's application for an interim injunction restraining the defendant from using the beer bottles in question is refused.

Costs of this application to the defendant in any event.

(Sgd.) J.T. Williams
JUDGE

LAUTOKA,
15th NOVEMBER, 1978.