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National Insurance Company of Fiji Ltd v MBf National Insurance (Fiji) Ltd [1995] FJHC 46; Hbc0492j.94s (2 March 1995)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 0492 OF 1994

Between:

THE NATIONAL INSURANCE COMPANY
OF FIJI LIMITED
Plaintiff

- and -

NATIONAL MBf INSURANCE (FIJI)
LIMITED
Defendant

Mr. I. Thain and F.G. Keil for Plaintiff
M.S. Sahu Khan, A. Khan and K. Muaror for Defendant

JUDGMENT

In this motion the plaintiff company, The National Insurance Co. of Fiji, Limited seeks an interlocutory injunction restraining the defendant, National MBf Insurance (Fiji) Limited "by its directors, servants agents or otherwise, using the word 'National' in its name, promotions, marketing material (including broadcasts) or in any other aspect of its business as an insurance company, until further order of this Honourable Court".

In its Statement of Claim the plaintiff company pleads two causes of action, namely the common law tort of 'passing-off' and breach of Section 54 of the Fair Trading Decree 1992. The principal relief sought in the Statement of Claim is a permanent injunction in terms identical to that sought in the interlocutory motion.

This latter feature of the case gave rise to a submission of counsel for the defendant that the court ought not to grant the interlocutory relief sought if the practical effect would be to grant the principal relief sought in the substantive action per Kermode J. in Ba Town Council v. F.B.C. and Others (1976) 22 F.L.R. 91 at 99.

The authority cited for this proposition by Justice Kermode in the Ba Town Council case is Dodd v. Marine Workers Union (1923) 93 L.J. Ch. 65. The 'rule of practice' established in Dodd's case has been the subject however of some judicial criticism, most recently, in the judgment of Megarry J. in Woodford v. Smith (1970) 1 W.L.R. 806 at 817, 818 where the learned judge said at p.817:

"I do not think that there is anything to prevent the court in a proper case from granting on motion substantially all the relief claimed in the action."

Then after referring to the decision in Dodds case (ibid) his lordship continues:

"But this language is general rather than absolute, the judgments are very brief, no reasons are given, and there have been later decisions. Thus in Bailey (Malta) Ltd. v. Bailey (1963) 1 Lloyds Reps. 595, 598 Lord Denning M.R. flatly said that it seemed to him that there was 'no such rule'. In this he based himself on what Sargant L.J. had said in Attorney-General v. Staleton-on-Tees Cooporation (1927) 91 J.P.172, 174 where there is what I may call a reasoned demolition of the supposed rule, the basis of which seems to have been an objection to trying the same point twice over."

The remaining 2 decisions cited in support by counsel for the defendant namely, Locabial International Finance Ltd. v. Agro Export (1986) 1 ALL E.R. 901 and Malone v. Metropolitan Police Commissioner (1978) 3 W.L.R. 936 are easily distinguishable from the present case in so far as they were concerned with 'mandatory injunctions' and it is well-settled that on such a motion, as contrasted with the trial, a court was far more reluctant to grant a 'mandatory injunction'; and there is a higher degree of assuredness required than in the case of a prohibitory injunction (per Megarry J. in Shepherd Homes Ltd. v. Sandham (1970) 3 All E.R. 402 at 412).

Objection was also taken by defence counsel to the affidavits filed on behalf of the plaintiff company in that contrary to "... the correct procedure to be followed in applications of this nature, which requires affidavits to be sworn after issue of the writ ..." per Kermode J. in the Ba Town Council case (ibid at p.94), the affidavits were all sworn 6 days before the issuance of the plaintiff's Writ and Summons.

Having considered the matter and in particular, the stage at which the precise nature of the defendant's objection to the plaintiff's affidavits became apparent; the use that was made by defence counsel of the plaintiff's principal affidavit; the terms of Order 41 r.4 of the High Court Rules; the decision of Chitty J. in Green v. Prior (1886) W.N. 50 and the offer of counsel for the plaintiff to re-swear the affidavits, (if required), I am satisfied that this is an appropriate case for the grant of leave to the plaintiff to file and use its affidavits in evidence notwithstanding the irregularity.

I turn then to a brief survey of the facts in the case. The plaintiff company is a wholly owned subsidiary of the National Insurance Company of New Zealand, Limited which latter company was first incorporated under the Joint-Stock Companies Act 1860 (N.Z.) and began trading in New Zealand in 1873 as the National Fire and Marine Insurance Company of New Zealand, Limited. Subsequently in 1908 it changed its name to the National Insurance Company of New Zealand, Limited a name it maintains to the present day. The present plaintiff company first began operations in Fiji as a local office of the Auckland Branch of its New Zealand parent company and continued as such until its incorporation on the 1st of September 1974.

Like its parent company the plaintiff company has traded in the fire and general insurance market in Fiji for over 20 years and has a substantial share of the market which it transacts either directly with consumers or through its network of agents throughout Fiji or via insurance brokers.

It claims to have invested considerable time, effort and money in promoting the trading names "The National Insurance Company", "National Insurance" and "The National" in its policy documentation, office signage and other promotional and advertising materials. So much so that it is said that there is substantial 'goodwill' in Fiji attached not only to its business reputation as "a solid, reliable, experienced insurer of great integrity" but also to its various trading names which is described as "... one of the plaintiff's most valuable assets, if not the most valuable".

In other words if I may be permitted to adapt the words of Lord Denning in Legal and General Assurances Ltd. v. Daniel (1968) R.P.C. 253 at 258, the plaintiff company claims that the words "National Insurance" have acquired such a connotation, such a significance in business and elsewhere that they have become especially associated with the plaintiff company.

The defendant company on the other hand was incorporated on the 22nd of September 1993 and must be considered a relatively "new player" in the local insurance market.

That the tort of 'passing-off' is concerned with the protection of a right of property being the right to the 'goodwill' of a business cannot now be doubted. (See, for example: J. Bollinger v. Costa Brava Wine Co. Ltd. (1960) 2 Ch. 262, 276 (The "Champagne" case) and that the 'goodwill' of a business includes, amongst other things, its business or trading name has been settled since Churton v. Douglas (1859) 123 R.R. 56, 64.

I interpose here to deal with a quite unusual submission of defence counsel that whatever 'goodwill' the plaintiff acquired by the use of its various business and trading names was acquired in breach of the provisions of both the Companies Act 1983 and the Registration of Business Names Act (Cap. 249) and as such this Court ought not to protect such user or lend its aid to such illegality by the granting of equitable relief.

In particular counsel referred to the various newspaper advertisements and brochures annexed to the plaintiff's principal affidavit in which the words: "National" and "National Insurance" features quite prominently, and submitted that they were in breach of the clear requirements of Section 111(1)(c) of the Companies Act 1983 which provides (inter alia):

"(1) Every Company -

(c) shall have its name mentioned in legible roman letters in all business letters of the company and in all notices and other official publications of the company ..."

Similarly defence counsel submitted that in failing to register the variety of 'names' which the plaintiff company was using, it was in clear breach of Section 3(d) of the Registration of Business Names Act (Cap. 249) which provides:

"(d) every company as defined in the Companies Act carrying on business under a business name which does not consist of its corporate name without any addition,

shall be registered in the manner directed by this Act."

I confess that when I first encountered the submission I was not only taken somewhat by surprise but in addition I considered it wholly unmeritorious. In the first place as is stated by the learned author of 'The Principles of Company Law' (2nd edn) at p.187:

"The object of the section is plain ... the legislature introduced limited liability on the basis that third parties would realise that they were dealing with limited companies. Hence great emphasis has always been put on the use of the true name of the company and especially the word 'limited'. The provisions ... form part of a wider series of rules designed to ensure that the name of the company appears wherever it does business, on its seal, and on all business documents and letters."

Viewed in that light I cannot accept for one moment that promotional and advertising materials of a company so common in this day and age can be considered to be within the 'mischief' of the section or the phrase "... all notices and other official publications of the company". Quite plainly in my view they are not.

I am fortified by an examination of the wording of the immediate predecessor to Section 111(i)(c) namely, Section 93(1)(c) of the Companies Ordinance (Cap. 216 of the 1967 Revised Edition of the Laws of Fiji), which clearly includes, as a separate and distinct category of company publication, "advertisements". Its very absence in the more recent replacement section with which I am concerned in this case, speaks volumes of the intention of the legislature.

Finally reference may be made to the headnote in H.E. Randall, Limited v. The British and American Shoe Company [1902] UKLawRpCh 104; (1902) 2 Ch. 354 which reads:

"A limited company may acquire a right to protection of a trade name used separately from its corporate name, although such user is in contravention of SS. 41, 42 of the Companies Act, 1862 (which are identical in substance to S.111 of our Companies Act 1983)."

Swinfen Eady J. in rejecting an argument similar to that advanced by defence counsel in this case said at p.358:

"The Companies Act 1862, SS. 41, 42 imposes certain penalties on a company for non-compliance with its provisions; but the additional penalty of forfeiting its goodwill to any dishonest person who chooses to steal it is not imposed by the statute."

(See also the judgment of Sly J. in Moreland Metal Company Ltd. v. Cowlishaw [1919] NSWStRp 47; (1919) 19 S.R.N.S.W. 231.)

In the circumstances I need only very briefly address the argument based on the provisions of the Registration of Business Names Act (Cap. 249). In this regard the Act defines a "business name" as meaning:

"the name or style under which any business is carried on whether in partnership or otherwise."

and the crucial question under Section 3(d) of the Act is: Is the plaintiff company carrying on business under a business name which does not consist of its corporate name without any addition?

Having carefully considered the matter I cannot agree that in placing advertisements and issuing brochures and other promotional material the plaintiff company can be said "to be carrying on business" as an insurance company under a business name.

The definition of "insurance business" as set out in Section 2 of the Insurance Act (Cap. 217) reads:

"(a) The business of undertaking liability by way of insurance (including reinsurance) in respect of lives, or any loss or damage, including liability to pay damages or compensation contingent upon the happening of a specified event;

(b) business relating to the continuance, renewal or revival of the business referred to in paragraph (a) and includes business incidental thereto."

Needless to say I cannot accept the suggestion that the plaintiff company "carries on (insurance) business" as opposed to an advertising or public relations agency, merely by placing advertisements in a newspaper or producing a brochure of the different insurance policies that it offers.

Furthermore some meaning must be given to the phrase '... without any addition' as it occurs in Section 3(d) of the Act and the view of counsel for the plaintiff is that the section proscribes 'additions' to a corporate name and not abbreviations of it such as are employed by the plaintiff company in its promotional and advertising materials.

The submissions of defence counsel relative to the Companies Act and the Registration of Business names Act are completely without merit and are accordingly rejected. I turn next to consider the plaintiff's claim of 'passing-off' bearing in mind that this is a 'similar name' case.

In Blue Lagoon Cruises Ltd. v. Evanson (1980) 26 F.L.R. 13 which was a 'similar name' case like the present, Dyke J. said at p.17:

"The essence of a passing off action is that the use of a trade name or description or device by the defendant is calculated to deceive others into a belief that the business is the business of the plaintiff or that there is some close association between them. Even if there is no deliberate intention to deceive, but in fact people are or are likely to be deceived or led to believe that there is some close association an injunction will lie."

Of even greater similarity and assistance is the judgment of the New Zealand Court of Appeal in National Timber Co. Ltd. v. National Hardware Timber and Machinery Co. Ltd. [1923] NZGazLawRp 31; (1923) N.Z.L.R. 1258 also a 'similar name' passing-off case in which an injunction was granted restraining a duly registered company - the defendant - from carrying on business in New Zealand under its (registered) name or any other name resembling the plaintiff's name.

In that case Reed J. conveniently summarised the issue to be determined in the following terms at p.1270-1271:

"In the first place it is unquestionable that the matter to be determined by the Court is a question of fact ... The principles, then, to be gathered from the numerous cases seem to show that the question to be determined is: Are the names of the companies so much alike that persons who under ordinary circumstances would be customers of such companies for the commodities in which they deal are likely to be deceived into dealing with the new company in mistake for the old, to the detriment of the latter? In considering this question it is material to ascertain: (i) Whether the two companies are dealing inter alia in the same commodity. (ii) Have mistakes already been made? It is not essential that there should be evidence of this fact, but where it exists 'it would be very material in assisting the Court in coming to the conclusion that the' [name]. 'complained of was calculated to deceive ... (iii) The nature of the business carried on by the two companies, and the probability, on account of that nature, of persons doing business with them making mistakes as to their identity."

(My underlining)

Furthermore the actionable damage to 'goodwill' that may arise in a 'similar name' case may take a variety of forms such as: 'to divert business from the plaintiff to the defendant' or 'to occasion a confusion between the businesses' or 'by suggesting that the defendant's business is an extension, branch or agency of or otherwise connected with the plaintiff's business' (See: Ewing v. Buttercup Margarine Co. Ltd. (1917) 2 Ch. 1; or that there had been 'an amalgamation of the two concerns' (per Earl of Halsbury L.C. in North Cheshire and Manchester Brewery Co. v. Manchester Brewery Company [1898] UKLawRpAC 65; (1899) A.C. 83, 85); or by 'the possibility of adverse publicity' (per Wilcox J. in Chase Manhattan O'Seas Corporation v. Chase Corporation (1985) 8 A.T.P.R); or by 'injuring the trade reputation of the plaintiffs (goods or services)' (per Slade L.J. in Chelsea Man Menswear Ltd. v. Chelsea Girl Ltd. (1987) R.P.C. 189, 202); or 'from a tendency to impair distinctiveness' (per Cooke P. in Taylor Bros. Ltd. v. Taylor Group (1988) 2 N.Z.L.R. 1, 37).

As was said by Warrington L.J. in Ewing v. Buttercup Margarine Company, Limited (1917) 2 Ch.1 at p.13:

"To induce the belief that my business is a branch of another man's business may do that other man damage in various ways. The quality of goods I sell, the kind of business I do, the credit or otherwise which I enjoy are all things which may injure the other man who is assumed wrongly to be associated with me."

I mention next the principles that guide this Court in an application such as the present and which were authoritatively laid down in the judgment of Lord Diplock in the American Cyanimid v. Ethicon Ltd. [1975] UKHL 1; (1975) A.C. 396, 407, 408. The first or primary or threshold question which the Court must ask itself and determine is: Is there a serious issue or question to be tried? and if the Court determines that there is a serious issue to be tried then the second or next step is that: "the Court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought".

Adopting this two-tier test in the present case and mindful of the 'courts function at this stage of the litigation' and the necessarily limited nature of the evidence available to the Court, can it be said that the plaintiff has raised a 'serious question to be tried'.

In this regard counsel for the plaintiff submits:

"There is a serious question to be tried that the defendant's use of the word 'National' in connection with its fire and general insurance business:

(a) includes a misrepresentation to potential customers that the defendant is the plaintiff or is in some way connected with the plaintiff; and

(b) has the reasonably foreseeable consequence that the plaintiff's goodwill or business will be injured; and

(c) will cause or probably cause damage to the plaintiff's business and/or goodwill."

Defence counsel submits however that there is no 'misrepresentation' in the use of the word 'National' in the defendant's name and in the absence of this 'essential ingredient' the plaintiff has 'no real prospect of succeeding' in its claim of 'passing-off'.

In dealing with this submission I say at once that the defendant has provided a perfectly legitimate reason for incorporating the word 'National' in its name; nor do I attribute any fraudulent intent on the part of the defendant in using the word 'National', but the absence of either does not compel or pre-empt a finding of misrepresentation sufficient to support the tort of 'passing-off'.

In John Brinsmead & Sons v. Stanley Brinsmead (1913) 30 R.P.C. 493, Buckley L.J. laid down the following propositions with regard to passing off when he said at pp. 506 and 507:

"The law, as I understand it, is this:

if a man makes a statement which is true, but which carries with it a false representation and induces the belief that his goods are the plaintiff's goods, he will be restrained by injunction. He cannot rely on the fact that his statement is literally and accurately true, if, notwithstanding its truth, it carries with it a false representation ...; but it is not necessary to prove intention to deceive."

and later:

"There is in my opinion, no difference whatever where the true statement consists in an accurate statement of the defendant's name as distinguished from any other true statement, if of course you have evidence that from the use of his own name deception results. ..., if he is simply using his own name, and it is proved that its use results in deception, he will be restrained even from using his own name, without taking such steps as will preclude the deception which, by hypothesis, is engendered by using his own name."

(See also the judgment of the Court of Appeal in Baume & Co. Ltd. v. A.H. Moore Ltd. (1958) 1 Ch. 907).

To return to the absence of misrepresentation, in the Birmingham Vinegar Brewery Company Limited v. Powell [1897] UKLawRpAC 28; (1897) A.C. 710 (the 'Yorkshire Relish' case) Lord Halsbury L.C. said at p.711:

"The most obvious way in which a man would be infringing the rule ... is if he were to say in terms 'These are the goods manufactured by' a rival tradesman; and it seems to be assumed that unless he says something equivalent to that no action will lie. It appears to me that that is an entire delusion."

In similar vein Lord Parker said in A.G. Spalding & Bros. v. A.W. Gamage Ltd. (1915) 32 R.P.C. 273 at 284:

"Members of the relevant trade or public who are familiar with the plaintiff's use of a name, mark or get-up will infer from the defendant's use of a name, mark or get-up which is the same or similar, that the goods or businesses concerned are the same or connected, and in this sense the representation is implied rather than expressed. Since this kind of misrepresentation arises by association with the plaintiff's mark or other indicia, it is unnecessary that the persons deceived should know the actual identity of the plaintiff with whose uses of the name, mark or get-up they have been familiar."

Nor do I consider the apparent 'approvals' of the Registrar of Companies or the Commissioner of Insurance to the defendant's name a particularly significant factor, much less can they be determinative of the plaintiff's claim in passing-off.

As was said by the Earl of Halsbury L.C. in the Manchester Brewery Company case (op.cit at p.85):

"... but upon the one question which your Lordships have to decide, whether the one name is so nearly resembling another as to be calculated to deceive, I am of the opinion that no witness would be entitled to say that, and for this reason: that that is the very question which your Lordships have to decide."

Further Section 21(2)(a) of the Companies Act 1983 specifically lays down:

"(a) no company shall be registered by a name which -

(i) is identical with that by which a company is already registered, or so nearly resembles that name as to be calculated to deceive, ..."

(my underlining)

Although this is not an application under the Companies Act, Lindley M.R. in the Court of Appeal in granting an injunction in the Manchester Brewery Company Limited case (reported in [1898] UKLawRpAC 65; (1898) 1 Ch. 539) restraining the defendant company from using or trading under its registered name which included the whole of the plaintiff company's name with additions and which name suggested that two companies had amalgamated, the learned Master of the Rolls referring to the identical words of the U.K. equivalent of the above section asked and answered the question at p.545:

"If that (meaning the suggestion of amalgamation) is true, can it be said that the defendant company do not fall within the second part of the section, which says that no company shall be registered under a name so resembling the name of a subsisting company as to be calculated to deceive? It appears to me they are actually hit by those words."

Furthermore Reed J. in the National Timber case (op.cit) at p.1269, 1270 cited with approval a passage from Lord Justice Buckley on the Companies Act where the learned author said:

"... The fact that the Registrar has registered a new company under a name will not prevent the old company from obtaining an injunction restraining the new company from carrying on under that name a business of a kind as that of the old company where it is shown that the name is calculated to deceive."

The question therefore is whether the use of the word "National" in the defendant's name is 'calculated to deceive'?

In answering the question I begin with the observation that the plaintiff and defendant company both operate in the same industry or 'common field of activity', underwrite the same or similar types of insurable risks namely fire and general insurance, and therefore necessarily compete for the same customers in Fiji.

Further it is undisputed that 'Malaysia Borneo Finance' which utilises the initials "MBf" has acquired interests in several long-established commercial and trading organisations in Fiji and in each instance the change of name occasioned by and reflective of such acquisition has been to adopt the organisations previous trading name with the addition of the initials MBf such as: "Carpenters MBf" and "Morris Hestroms MBf" to name but two examples.

In my view the defendant's name alone, when considered against the foregoing, is likely to lead consumers into the wholly reasonable although entirely erroneous belief that Malaysia Borneo Finance (MBf) had acquired an interest in the plaintiff company or at the very least was in some way closely associated with it.

Add to that the evidence of actual confusion that has already occurred in what may be conveniently called the 'Nashua invoice incident' and the 'Ram Garib phone calls' which I accept, there is little doubt in my mind that the use of the word "National" in the defendant's name and in the conduct of its business raises at the very least 'a serious question to be tried'.

I am of course mindful that the plaintiff cannot be allowed to claim a monopoly in the name "National" or the word "Insurance" but as was said by Reed J. in the National Timber case (op.cit at p.1272).

"the use of the word 'National', which is an invented or fancy name having no relation either to the objects of the company or the place of its operations, is much more likely to deceive than if the name were simply a word in ordinary use ..."

and later at p.1274:

"It may be remarked that the appellant company has clearly no monopoly in the name 'National' or the name 'Timber' ... nor, of course, can it claim the exclusive right to the word 'Timber'. But it can claim the exclusive use of a combination of the words 'National' and 'Timber'."

In New Zealand Insurance Co. Ltd. v. New Zealand Insurance Brokers Ltd. (1976) 2 N.Z.L.R. 40 Moller J. in dealing with the words 'New Zealand' and 'Insurance' in the plaintiff company's name said at p.46:

"If the words 'New Zealand' and the word 'Insurance' are looked at separately there would be some real grounds for saying that the latter is no more than descriptive of the service given, and that the country's name is something of very common use."

Then after referring to the National Timber case and the Legal and General Assurance Society case his honour continued at p.47:

"I have come to the firm opinion, having considered ... the world-wide ramifications of the plaintiff's operations and the period of at least 100 years during which it has been carrying on its business, that the plaintiff company has established an exclusive right to the combination of the words 'New Zealand Insurance' - that, indeed, the words have acquired a secondary meaning."

Similarly in this case I am satisfied from the evidence that the combination "National Insurance" have acquired such a notoriety within the fire and general insurance industry in this country as to acquire a secondary meaning as denoting or referring to the plaintiff company.

Finally I come to consider the 'balance of convenience' in this case, and again I turn to the speech of Lord Diplock in the American Cyanamid case (op.cit at p.408) where he said in this regard:

"... the governing principle is that the Court should first consider whether, if the plaintiff were to succeed at the trial ... he would be adequately compensated by an award of damages for the loss ... sustained as a result of the defendant's continuing to do what was sought to be enjoined ..."

In a passing-off case as already pointed out it is 'goodwill' that is sought to be protected, but 'goodwill' is such a fluid concept comprised of so many unquantifiable variables that it would be almost impossible to estimate with any degree of accuracy the damage that would be caused by the defendant's actions nor is quantification made any easier having regard to the multifarious ways in which damage to 'goodwill' may occur. (earlier set out at p.9, 10)

This difficulty which is often confronted by the Courts has been variously described by such phrases as: 'impossible to estimate' (per Dyke J. in the Blue Lagoon case p.17E); 'pure speculation' (per Casey J. in Esanda Ltd. v.Esanda Finance Ltd. (1984) 2 N.Z.L.R. 748 at 754); "notoriously difficult to assess" (per Chilwell J. in the New Zealand "Farmers" case unreported decision at p.17); 'difficult to estimate and indeed could hardly be viewed as adequate' (per Somers J. in Sutton v. The House of Running Ltd. (1979) 2 N.Z.L.R. 750 at 755); and finally, per McGechan J. in Taylor Bros. Ltd. v. Taylors Group Ltd. (op.cit) when in considering the appropriate remedy in a 'similar name' passing-off case the learned judge said at p.31:

"In the ordinary way, a Court will have little hesitation over granting an injunction to prevent passing off."

By way of contrast, the Courts in considering the defendant's position with regard to damages in passing off cases have used expressions such as: "... their assessment will be straightforward ..." (per Casey J. in the Esanda case at p.754); "... some actual part of the loss incurred can be readily measured ..." e.g. setting up and registration costs (per Somers J. in the House of Running case at p.755); "... largely calculable in monetary terms ..." (per Savage J. in the New Zealand 'Weight Watchers' case an unreported judgment at p.17); and finally per Chilwell J. in the New Zealand 'Farmers' case (op.cit) when he said at p.18:

"A defendant cannot create his own inconvenience and then have it taken into account in balancing the scales of convenience - at least when he embarks upon questionable conduct with his eyes open."

In this case having carefully considered the various ways in which potential damage to the plaintiff's 'goodwill' is likely to be occasioned by the continued adoption of the word 'National' in the defendant's name and business including inducing the erroneous belief of a close association with the defendant, simple confusion arising from the similarity of the names, and loss of custom and trade reputation, I am satisfied that the 'balance of convenience' strongly favours the grant of an injunction in the 'ordinary way'.

Accordingly there will be an injunction granted in terms of the relief sought in para. (a) of the plaintiff's summons for interlocutory relief with the costs of this application to be taxed if not agreed.

In view of the above it is not necessary for me to deal with the plaintiff's further claim under the Fair Trading Decree No. 25 of 1992.

(D.V. Fatiaki)
JUDGE

At Suva,
2nd March, 1995.

HBC0492J.94S