Yim v Crook [1998] SBHC 25; HC-CC 066 of 1998 (23 April 1998)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No.66 of 1998

KWOK YIM &
SELENA YIM

v

NANCY CROOK &
ON MAMALONI

High Court of Solomon Islands
efore: Lungole-Awich, J
J
Civil Case No. 66 of 1998

Counsel: Sol-Law for the plaintiffs;
Bridge Lawyers for ther the defendants

class="Mso="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> JUDGMENT

(LUNGOLE-AWICH, J): The Application: The applicants, the plaintiffs, applied by Notice of Motion for interlocutory orders which, for the purpose of this ruling, I may state simply as order restraining the defendants from carrying on the business known as Club 88 or doing anything leading to the defendants carrying on the business. The application was listed as an urgent one, but learned solicitors for the applicants, rightly, in my view, thought it not one to be brought ex parte.

Application for Interim Injunction

At the hearing today, parties agreed to have the matter ader adjourned for 7 days until Thursday 30.4.98, to enable the respondents/defendants to file affidavits to support their opposition to the application. They agreed to time for filing affidavits and that costs of today be in the cause. The court approved the consent orders. Although the applicants were prepared to give undertaking as to damages during the period of adjournment, the respondents refused to give undertaking that during the 7 days they will not carry on the business or do anything inconsistent with the claim of the applicants that they are the owners of the business and not the respondents/defendants. So parties have therefore asked the court to determine whether interim injunction is to issue restraining the respondents during the 7 days adjournment.

The Status Quo to be Preserved

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The business of Club 88 is said to be that of a club where gaming is carried on. Not much has been said about what is on the ground as at the time of the application. It is not clear from the affidavits, who holds, as of fact, the keys for the building of the club where its business are supposed to be carried on and whether or not any business activities are currently taking place. It is, however, stated that the respondents/defendants have obtained gaming licence for Club 88 business and are arranging to commence gaming business. Nothing is said about business activities of the Club that the applicants are currently engaged in. The difficulty that arises is that the court is unable to say what the status quo to be preserved in the 7 days and beyond is. Interim or interlocutory injunction is to keep matters in status quo, not to place one of the parties in disadvantage, although that often is the consequence.

[1975] AC 397 and John Wesley Talasasa v Attorney General and others HC CC 35 of 1995. The applicants/plaintiffs claim having acquired, by purchase, the business known as Club 88, and on the other hand the respondents/defendants claim that they have remained the proprietors or the proprietors of up to 70% of the business. Learned counsel Mr. J Sullivan, for the applicants, is right in his submission that the questions as to serious issue and balance of convenience do not depend on whether the application is brought ex parte or inter partes. That submission was in reply to suggestion by learned counsel Mr. Nori, for the respondents, that if the applicant had come ex parte, the evidence they have made available in affidavit may have been sufficient to establish a serious case. As the application is inter partes and adjournment has been agreed, Mr. Nori said, the respondents’ case will have to wait for the evidence for the respondents so that it is weighed against that of the applicants so as to decide whether there is serious issue in the case. I think in this case the determinant question is the loss expected if the interim injunction is not granted and the balance of convenience attendant.

The Loss Expected

Mr. Sullivan says that one item of loss would be the proceeds of cash bets ets expected if the business opens. Some of it, he says, may be unaccounted for. He further says that the other loss would be that the respondents may incur business liabilities in the mean time and the business, Club 88, may in future have to discharge the liabilities. As far as the proceeds of bets are concerned, the other side of it would be no proceeds at all to lose if the business is not carried on. Whatever proceeds that would be collected, however little, would be gain and better than no proceeds at all if the business is not carried on. If cash were to be collected in the business, I think difficult as it may be to control cash business, measures could be imposed in the carrying on of the business to ensure that proceeds are protected. The question of liabilities would be a strong one in favour of granting interim injunction, but the court does not have enough evidence about, such as their nature and extent and in fact whether any are likely to be incurred. On the other hand there may be liabilities arising in the arrangements already made by the defendants for equipment and other things.

The other factor which I think shoultaken into account is that that licence has already been granted to the respondents/defendants, though the applicants say wrongly. There has been no information about the conditions upon which the licence was granted. It was up to the applicants to say something about the licence, they should have explained why the licence should not be utilised. This, however, would be consideration relevant merely in the exercise of discretion, had the case for injunction been sufficiently made out.

Application Dismissed

It is for an applicant for interim injunction order to available sufficient ient information upon which the court will feel confident to grant the application, see R v Kensington Income Tax Commissioner [1917] 1 KB 504. It is for the applicant in a case such as this one where application for injunction is adjourned to enable the respondents to file affidavit evidence, to make out a case of urgency for interim injunction during the period of adjournment. In my view there has not been adequate information for the court to act upon confidently, and an urgent case for interim injunction has not been made. I refuse the application for interim injunction order. Hearing of the main case is adjourned to 30.4.1998.

Costs are reserved.

Deed this 23^rd day of April 1998

Sam Lungole-Awich
br> JUDGE