Mafi v Ramsay [2008] TOLawRp 48; [2008] Tonga LR 245 (12 September 2008)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CV 67/2008

Mafi

v

Ramsay

Andrew J
12 September 2008

Civil dispute – contract disagreement – interim injunction sought – defendant required to vacate premises

The defendant had been the owner and operator of the B.P. Service Station at Vaini. He had a supply agreement with B.P. under which the latter supplied all the equipment and the petroleum products. The defendant became indebted to B.P. in the sum of $162,703 59 and as a result he entered into an agreement between himself, B.P. and the plaintiff under which the plaintiff agreed to pay off the defendant's debts on the condition that he would operate and have full control of the service station until May 2011. The plaintiff paid off a significant amount of the debt and had paid rent to B.P. The defendant then claimed that he had signed the agreement under duress and he re-took possession of the service station. The plaintiff sought an injunction requiring him to vacate the premises.

Held:

1. It wass hardly duress for the defendants to claim that he had no choice but to enter into the agreement because he was so substantially in debt.

2. The balance of convenience favoured the grant of the interim injunction. The defendant, in wanting someone to pay off his debts while he took back the service station, seemed to want to have his cake and eat it too.

3. An injunction was issued requiring the defendant to vacate the service station and he and his family were ordered not to interfere or trespass on the premises.

Counsel for the plaintiff : Mr Fakahua
Counsel for the defendant : Mr Vaipulu

Judgment

The Plaintiff/Applicant seeks an interim injunction on this matter for orders that the Defendant be restrained:

"(i) from interfering and trespassing to the B.P. Service Station at Vaini and also members of his family agents, or any other persons acting on his behalf from interfering or trespassing on the B.P. Service Station at Vaini.

(ii) the defendant to vacate the B.P. Service Station at Vaini until further order of the Court.

(iii) a copy of this application, affidavit in support and this order together with a direction notice shall be served personally on the respondent herein within a period of 7 days of this date.

(iv) any police officer is authorised and directed to take whatever action may be reasonably necessary to give effect to the above orders."

Briefly stated, the defendant was the owner and operator of the B.P. Service Station at Vaini and he got into debt with B.P. (That is B.P. South West Pacific) Limited. B.P. had a supply agreement with the defendant and they supplied equipment, that is pumps and tanks and fire extinguishers and petroleum products. That equipment remained the property of B.P.

The Defendant was indebted to B.P. in the sum of $162,703.59 and as a result he entered into a Memorandum of Agreement between himself, B.P. and the Plaintiff in these proceedings Mr 'Etiluna Mafi. A term of that agreement was that the Plaintiff was allowed to operate the service station for a period of 7 years up to May 2011. The rent was to be paid directly to B.P.

The Plaintiff has agreed with the defendant that he would pay the defendants debts with one condition being that he would have full control of the service station. So far he has paid debts of $116,800 and rent in the amount of $16,800.00 has been paid to B.P. As stated a condition of the agreement was that he could operate the service station to May 2011 and a further condition was that the defendant would not attempt to take re-possession of the premises for non-payment of rent and shall have nothing to do with the performance of the service station.

It appears that there was dispute in relation to the condition of the tanks and other matters and these were removed by B.P. I take it, to be repaired. At this time the defendant moved back to the service station and took possession. The plaintiff remains out of pocket to the sum of the $116,800 he has repaid plus the rent of $16,800.

The defendant says that he signed the agreement under duress. No evidence is given of any duress. Perhaps he means that he had no choice as he was so substantially in debt but that is hardly duress. In any event he declared on the agreement that he had obtained independent legal advise before signing it.

On the balance of convenience I propose to grant the interim injunction. There is, prima facie, a valid agreement giving the Plaintiff the right to manage and operate the garage to 2011. In return he would pay off the debts of the defendant which he was doing. I cannot see how the defendant had any legitimate claim to take over possession of the service station is these circumstances. He seems to want to have his cake and eat it too. That is for someone to pay his debts and for him to have the service station back as well.

For these reasons I grant the injunction sought in the following term:

ORDER:

1. The defendant 'Alani Ramsay shall vacate the B.P. Service Station at Vaini until further order of the Court.

2. The defendant 'Alani Ramsay his family, agents or anyone acting on his behalf shall not interfere or trespass on the B.P. Service Station at Vaini.

3. Any police officer is authorised and directed to take whatever action may be reasonably necessary to give effect to the above orders.

4. Costs of the application are awarded to the Plaintiff as agreed or taxed.