John Hydenko Pty Ltd v Chan Mow & Company Ltd [2002] WSSC 32 (30 August 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

JOHN HYDENKO PTY LIMITED
Trading as “THE MAIL SERVICE” (also known as Samoa Tattslotto)
Plaintiff

AND:

CHAN MOW & COMPANY LIMITED
A duly incorporated company having its registered office at Beach Road, Apia.
Defendant

Counsel: Mr RSP Toailoa for the plaintiff
Ms R Drake for the Defendant

Sentence: 30 August 2002

JUDGMENT OF JUSTICE COOPER

This is an application for an order rescinding an interim injunction made on the 10th June 2002. The terms of that interim injunction are that, the plaintiff its servants or agents are restrained from re-entering the defendant’s premises occupied by the plaintiff or in any other way whatsoever interfering with the occupancy of the said premises occupied by the plaintiff and the conduct of the plaintiff’s business therefrom.

The plaintiff is occupying premises owned by the defendant. The premises are the subject of a deed of lease dated the 10th September 1999 between the defendant as landlord and the Samoa National Olympic Committee and Sports Federation Incorporated as tenant.

The Samoa National Olympic Committee and Sports Federation Inc. is in default in terms of that lease in particular clause 3.14 providing for the payment of the substantial sum of money for equipment. Notice was given to the Samoa National Olympic Committee and Sports Federation pursuant to section 118 of the Property Law Act 1952. It is relevant to note that that notice refers to the default by the SNOC under clause 3.14 of the lease in respect of the sum of $68,978.86.

This issue on this application is whether the plaintiff has an arguable case that his occupancy of the premises is in terms of some independent arrangement with the defendant such that the notice just referred to is not effective to terminate that. I note the following:

1. The debt referred to in the notice is not that of the plaintiff, it is that of SNOC. While the plaintiff has been promising to arrange or facilitate payments of that debt, those promises not having been fulfilled so far, the plaintiff has not assumed any independent liability for the debt.
   
2. It appears that since about November 2000 the defendant has been accepting rent payments from the plaintiff for the premises. Those rent payments being assessed using the same mechanism as provided for in the lease document with SNOC.
   

Because of the acceptance of rent, there is an arguable case that a tenancy at wills has been created between the plaintiff and the defendant. That tenancy would be terminable by one-month notice in terms of section 105 of the Property Law Act. The Properly Law Act notice already served, would not be effective to terminate such an arrangement. Firs of all, it is directed that SNOC and secondly it relates to SNOC’s default.

The balance of convenience favours the plaintiff, his business would be significantly adversely affected if the present Property Law Act notice was wrongly acted on to the evict him.

All of this may be small comfort to the plaintiff because at the end of the day, if the defendant does service a notice pursuant to section 105 terminating his tenancy at will, he would have no answer to that and Mr Toailoa concedes that is the case. But arguably the present Property Law Act notice is not effective to terminate the occupancy of the plaintiff.

Ms Drake has raised other objections. She refers to the fact that no statement of claim was filed at the time of the application. I regard that fault has now having been cured by Rule 202 in that the statement of claim has now been filed. She refers also to the failure by the plaintiff to disclose all material information and some of those submissions are valid. Not all relevant information was before the court at the time the interim injunction was sought.

It now is before the court. I do not accept Ms Drake’s submission that, had it been before the court at an earlier stage, the interim injunction would not have been made. But I do think that if it had been before the court at an earlier stage the interim injunction would have been made in different terms. The terms of the injunction must relate only to the Property Law Act notice dated the 31st May 2002. Its present terms are far too wide.

I refuse the application to rescind the interim injunction altogether but the terms of the interim injunction will be amended, and a new injunction in the following terms will issue.

The defendant, its servants or agents are restrained from re-entering the defendant’s premises occupied by the plaintiff or in any other way whatsoever interfering with the occupancy of the said premises occupied by the plaintiff and the conduct of the plaintiff’s business therefrom in terms of the Property Law Act notice dated the 31st May 2002 only.

The terms of that injunction would not prevent the defendant from taking appropriate steps should it choose to do so to terminate the plaintiff’s tenancy at will pursuant to section 105 of the Property Law Act and to re-enter the premises after proper notice has been given.

Costs on the present application are reserved.

JUSTICE COOPER