Dhari v Teraka [1999] SBHC 21; HC-CC 119 of 1998 (9 March 1999)

class="MsoNormal" aal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 119 of 1998

SUNIL D/span>

v

class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> SINGA TERAKA AND AKAKA TERAKA

Date of Hearing: 5 March 1999
Date of Judgment: 9 March 1999

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Mr I. Kako for the plaintiff
Mr D. Hou for the defendants

JUDGMENT

p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> (LUNGOLE-AWICH, J): The Facts: This is judgment in an inter partes hearing following the granting of interim order made ex parte, on 3.8.1998 by Palmer J. The substantive case is in the writ of summons dated 9.7.1998 and filed on 14.7.1998. The plaintiff, Sunil Dhari alleges contract of sale of goods, a mini bus, between himself and Singa Teraka and Akaka Teraka, the defendants. The plaintiff avers that although the defendants were to take delivery of the bus, ownership was to remain with him until full payment of the purchase price. The defendants in their defence and counterclaim admit oral contract of sale, but aver that they paid $6,000 of the purchase price it was a term of the contract that the remainder was to come from the proceeds of running the bus as paying passenger bus. They say that on 11.11.1997, the bus broke down and they spent $16,410 for repairing the bus. They counter-claimed the sums of $ 6,000 and $16,410.

The Issue to bermined

Following the order made by Palmer J. o.1998, removing the bus fros from the possession of the defendants, the bus has been kept at Kukum Police Station in Honiara. No storage fee is being charged. The question for determination is whether I should order the continuation of the interim order made until determination of the case or discharge the order. Security for or undertaking as to costs were not at issue.

p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Non - Disclosure by the Applicant

Parties are agreed that there was a contract for somt of sale of the mini mini bus. They disagree as to whether it was written and as to the terms. The defendants admit that there are serious issues before court for determination. Learned counsel Mr Hou, for the defendants, ably submitted that the plaintiff did not make full disclosure, he totally concealed any initial payment of part of the purchase price, during the ex parte application when in fact he had been paid $6,000, the plaintiff subsequently admitted, though a smaller payment of $5,000. Mr Hou urged the court to discharge the interim order on the ground of non disclosure. He submitted a second ground namely; that the balance of convenience would require that the order be discharged.

Non disclosure is good ground for discharging interim orderined ex parte because usually the facts undisclosed and subsequently disclosed, would have weakened the applicant's ex parte case. In this case the claim of the plaintiff for $29,000 has been seriously weakened to the extent of $6,000 which might have been paid. His case that property in the bus did not pass to the defendants remained strong though, especially when the defence seems to concede it. On the facts of this case, 1 decline to discharge the interim order on the ground of non disclosure.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Balof Convenience

I think the crucial factor in thse is the question of balanbalance of convenience. It is determined by comparing the would be future loss of the plaintiff to that of the defendant, in the event of each winning his case. If in the event that the plaintiff wins the case, the loss that the plaintiff will have suffered during the time that the case was in court, will be greater than the loss that the defendant will have suffered, if the defendant wins the case, then the balance of convenience requires that interlocutory injunction or other order preserving the subject matter of the case be imposed. The rule about balance of convenience is now well established in this jurisdiction. See: John Wesley Talasasa v. Attorney General and Others HCCC35 of 1995 adopting American Cyanamid Co. v. Ethicon Limited [1975] UKHL 1; [1975] AC 396, [1975] 1 All ER 504, [1975] 2 WLR 316. In the American Cyanamid case, it was advised that if there is uncertainty about the balance of losses, it is prudent to impose interlocutory injunction. In this case, the subject matter is the bus or its price, the comparable losses are those of, Sunil Dhari and the Terekas. Those are the objects of our balancing exercise.

I regarded two facts as very important in my consideration. The first is that when the bus was said to have broken down in November 1997, the defendants said that they spent as much as $16,410 for its repair. That is more than one half of the claim, the purchase price. Is that itself not reason enough for the Court to make an order to preserve the status quo now other than allow the bus to be exposed to the risk of breaking down and causing the parties to incur repair bills that could further complicate the case? The second fact is that the vehicle is not comprehensively insured. In the event of accidental loss by fire, flood, road accident and other such unfortunate occurrences, it will be lost completely. Risk of loss normally follows ownership. In this case the plaintiff alleges that he retained ownership. So far the defendants do not deny it. That means that the risk of loss is upon the plaintiff. Loss or damage occasioned to the bus during the trial will rest with the plaintiff unless agreement to the contrary is proved. The balance of convenience tends to show that the plaintiff would be the one to suffer greater damages if interlocutory order to preserve the bus is not made, should the plaintiff win the case in the end. The loss is of money, it is loss that money can adequately compensate for. The general rule is that if the loss can be adequately compensated for by payment of money, then, injunction should not be imposed. On these facts, however, it appears that the defendants do not have means to get enough money that can compensate for the loss.

Determination and Orders

My determination is that the interim order made by Palmer J. on 3.8.1998 is to continue with slight variations: In Order 2, to the effect that the vehicle, now in the custody of Kukum Police, remains in the custody of the police until determination of this case or further order. Order 4 now falls away.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Pleadings seem to have closed. The following direction orders under Order 32 of the High Court (Civil Procedure) Rules are made:

1. Parties are to make discovery of documdocuments by list within 14 days.

class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> 2. Inspection by each party be completed within 14 days of discovery to the party.

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3. The plaintiff is to file a bundle of pleadileadings within 14 days of him having completed inspection or after discovery if he does not wish to inspect.

4. The plaintiff is to apply by the end of the last week of A of April, 1999, for a date of hearing.

5. Registrar is requested to treat this case as now requiring early hearing anlist it in the month of Mayf May 1999.

Of course parties mayy out the direction orders earlier than the time allo allowed in the orders so that the plaintiff may ask for a date of hearing earlier than in May.

To avoid doubt, costs so fae in the cause.

Delivered this Tuesday the 9th day och 1999.

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At the High Court,

Honiara

Sam Lungole-Awich
Judge