Turagalevu Game Fishing Ltd v Davies [1979] FJSC 44; Civil Action 264 of 1979 (10 October 1979)

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

Action No. 264 of 1979

BETWEEN

TURAGALEVU GAME FISHING LIMITED
Plaintiff

AND

ROBERT JOHN DAVIES
1st Defendant

BRIAN FOO
(2nd Defendant)

Mr. H.C. Sharma, Counsel for the Plaintiff
Mr. R. Shankar, Counsel for the 2nd Defendant

JUDGMENT

The plaintiff seeks an injunction restraining the defendants from selling or otherwise disposing of the M.V. Albacora. They claim that they held an option to purchase it for $10,000 under an agreement dated 6/9/79 and that it was exercised by letter on 12/9/79 but the defendants refuse to carry out the contract.

The statement of claim prays for specific performance.

The document on which the plaintiff relies does not refer to "an option" but to "a first option" which is frequently not regarded as an option but as equating to "a first refusal."

It provides certain stipulations including that the vessel will not be financially encumbered and that purchase will be subject to the plaintiff's own survey of the vessel.

There is something indefinite about the consideration moving from the plaintiff which includes return air fares to Melbourne for Defendant No. 2 and his family. It could be doubtful as to what is meant by "his family" and what is meant by "return air fares"; would they be special return, extended return, first class or tourist.

In his affidavit the second defendant denies the option was given freely and claims that he has not authority to sell the vessel.

The Statement of Claim alleges that the defendants are partners operating as "Albacora Fishing & Touring Company" whose title suggests the tourist trade connected with the use of the vessel. It does not suggest a business a business of buying and selling vessels. S. 6 of the Partnership Ordinance, Cap 217, enables a partner to bind the firm by acts performed in the course of the usual business of the firm. It would seem that the usual business of the "Albacora Fishing & Touring Company" is most unlikely to be that of selling the vessel on which the partnership probably depends. Sale of the vessel may well terminate the business. Defendant 2 could scarcely be said to have ostensible authority to carry out such a contract without the concurrence of his partner(s). On the face of the affidavits there is nothing to suggest that the defendant No. 2 had such unusual authority.

A firm, will not be bound by the representations of one of its members as to his authority to do that which the nature of the business of the firm does not impliedly warrant.

The firm, as opposed to Defendant 2 or Defendant 1 acting alone, may wish to sell the vessel. What its value is has not been indicated but defendant 2's affidavit states that it cost $22,000.

It may be that a vessel of this nature has much that is peculiar to the requirements of the plaintiff as people in that trade and that it is unlikely that another vessel would be reasonably available. If that is so it has not been made apparent in the plaintiff's affidavit.

If, as a result of an injunction the defendants are unable to accept an offer of say $25,000 for the vessel who will compensate them should the plaintiffs fail on an eventual hearing of this case?

The plaintiff's application is dismissed. The plaintiff will pay the defendant's costs.

(Sgd.) J.T. WILLIAMS,
JUDGE

LAUTOKA,
10th October, 1979.