CIVIL ACTION NO: HBC 0015 OF 2000 BETWEEN: 1">
C.P. PATEL & CD.
Plaintiff
AND:
VANUALARDWARE FIJI LTD.
Defendant
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Counsel: Mr A. Narayan for Plaintiff
Mr R. Singh for Defendafendant
Hearing: 9th March 2000
DECISION
ass=MsoNormoNormal style="margin-top: 1; margin-bottom: 1"> This is an application for the application for the extension of an injunction grant parte on 21st February 2000 by Gates J, restraining
the Dehe Defendants from interfering with the Plaintiff’s use of a two-storey supermarket building in Labasa, pending the hearing
of the substantive dispute between the parties.
The facts of this case are that the Defendants own Crown Lease Nos. 26463, 9129 and 26465 in Labasa.
In August 1991, the Defendants and the Plaintiff agreed to a ten year sub-lease at ahly rental of $13,000 with an option to renew
for a furtherrther ten years. The Director of Lands consented to this lease. The supermarket was erected by both parties over Lease
Nos. 26463 and 9129 with unloading facilities and electricity substation being accommodated on Lease No. 26465. The supermarket is
called “New World Supermarket”.
By February 2000, the parties were negotiating a new sub-lease. One agreement, drafted by Messrs. Sherani and Co., was sign 7th February
by the Plaintlaintiff. The Defendants did not sign. Under the terms of this agreement the premises were to be let by the Defendants
to the Plaintiff for five years from 1st February 2000, at a monthly rental of $9,200 plus vat. There is to be a right of renewal
for a further five years upon expiry of the term.
The Defendants then proceeded to instruct another solicitor, Mr Sadiq. However, they continued to demand rent at the previous rate
of $13,000 per month.
On 21st February 2000 the Plaintiff issued writ of summons in thesa High Court claiming:
&nGB>
2. &nbbsp;& &nsp; &nsp; &nnbp;& &nnbsp; Apan>An orde order for specific performance of that agreement;
&nGB>
>
3. & p;&bssp; bn injuninjuninjunction to prevent the defendants from interfering with the plaintiff’s quiet use and enjoyment
of the orld marked
The Plaintiff made an ex parte application for (3) and (4) above relying on the affidavit of Pravin Patel, managing director of the
Plaintiff company. The application was granted by Gates J on an interim basis. The matter was then ordered to be heard inter partes.
The Defendants filed the affidavit of Bashir Khan, sworn on 26th February 2000. The Plaintiff then file second affidavit of Pravin
Patel sworn on 1st March 2000.<000.
The application was heard on 9th March 2000. It had been agreed by the parties on 2nd March 2000 that until the delivery of this judgment,
the Plaintiff would pay the monthly rental of $9,200 under the Sherani agreement, to the trust account of Messrs. Kohli Singh &
Co.
At the hearing of the injunction application, it was apparent that the Defenddid not object to the Plaintiff’s continued occupation
of t of the premises. What is in dispute is whether there is a new agreement setting a rental at $9,200 per month, whether the Defendants
are now free to execute a new agreement, whether, in the interim period whilst the substantive hearing is pending, the Plaintiffs
should pay $13,000 per month as monthly tenants under the old 1991 agreement, or whether the Plaintiffs should pay $9,200 by virtue
of the Sherani agreement until the trial is heard.
The principles governing the grant or otherwise of an interlocutory injunction are weltled. The first question is whether there is
a serious ques question to be tried. The second question is whether damages are an adequate remedy for the alleged acts of the Defendants.
The third question is whether on a balance of convenience, a grant of the injunction is favoured.
1.&nnbsp; &nnsp;&&nsp;;&nspp;&nssp;&nsp; &nsp;; b>A Serious Question to be Tried
Counsel for the Plaintiff submitted that the issue of whether or not there w agreement in respect of the lease, was a serious question
tion to warrant trial. He argued that even if the Defendants had not executed the Sherani agreement, there was compliance with section
59 of the Indemnity Guarantee and Bailment Act Cap. 232 which required that all agreements relating to interests in land must be in writing and signed by the parties or persons
authorised by them. He submitted that Messrs. Sherani & Co. had been authorised by the Defendants to be their agent for the purpose
of the agreement and that the intention of the parties was clear from the terms of the agreement.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Counsel for the Defendants submitted that the entire claim is bad because the contract was not executed by both par
It is clear that whether or not there was compliance with section 59 of themnity Guarantee and Bailment Act, is a question largely
ofly of evidence and fact. There are some grounds shown by the Plaintiff that there may have been compliance. If this is so, then
there is clearly a serious question to be tried. This is particularly so when the Plaintiffs rely also on the principle of estoppel
and part-performance to argue that the Sherani agreement was a valid and binding agreement.
The question of compliance with section 59 of the Indemnity Guarantee and Bailment Act was considered by the Court of Appeal in Latchman Bala -v- Wasu Dewan Civil Appeal No. ABU0007 of 1998S. In that case the Court relied on the evidence led before the trial judge in concluding that there
was no due compliance with the Act, and that there were insufficient grounds for the “authenticated signature fiction” concept. In
that case the Court of Appeal said at page 7 that:
“The “authenticated signature fiction” concept has been discussed by the courts in England and Australia but particularly by the courts
in New Zealand; it has been developed as part of efforts by the courts in all those countries to prevent section 4 of the Statute
of Frauds - and legislation derived from it - being used as an instrument of injustice. It is applied where one party, either personally
or by his agent, has induced the other party to sign an agreement, or a note or memorandum thereof, by representing that he regards
himself as bound by it even though neither he nor his agent has signed.”
In that case, it was clear that whether or not the concept had been proven depended largely onevidence of inducement, representation
and agency.
In this matter before me, evidence will eventually be led on all these matters. For the purposes of this injunction application, I
am satisfied on the affidavit material before me, that the Plaintiff has disclosed sufficient grounds showing that there is a serious
question to be tried on this issue.
I note also, that counsel for the Defendants argues that theement was of no validity because it did not have the consent of the Director
of Lands.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> However I accept that the Plaintiff’s submission that the Director’s consent to the possibility of extension of lear a further 10
year term inrm in 1991, may be construed as a consent to the new lease. In any event, this raises a question which warrants a hearing.
2. ;&nbssp; &bsp; &nbbp;&nnbsp; &nbbsp;nbsp;
The evidence shows that the Plaintiff has built a supermarket on the Defendant’s land and i running a substantial business there.
If the Plaintiff sucf succeeds in this action, damages would not compensate for the months, or years of inability to run the business
there. Furthermore, as counsel for the Plaintiff points out, there can be no compensation for loss of jobs, or for loss of goodwill.
The Defendants will be unable to arrange for other tenancies while the action is pending. If the Defendants were to succeed in their
defence, they would have lost months or years of unpaid rental at the rate they now ask for. It appears therefore that the Defendants
can be compensated in damages.
The Plaintiff agrees to pay the Sherani rental of $9,200 into Messrsli Singh & Co.’s trust account. If this were so, then the
hardship pleaded by the DefenDefendants and their inability to meet mortgage repayments whilst this dispute continues, will be substantially
diminished.
In all the circumstances it appears that damages would be an adequate remedy for the Defendants. It clearly would not be he Plaintiff.
Counsel for the Defendants, submits that the Plaintiff shouldthe $13,200 under the old agreement until the action is heard.
However, in the interests of preserving the status quo, and to prevent hardship to the Defendants which would undoubtedly follow if
the Plaintiff were to withdraw the offer to pay any rental, I consider it fair to order the payment of $9,200 per month until this
action is determined.
For these reasons, the application for injunction in terms of 13 and 4 of the summons dated 21st February 2000, is allowed. In order
to prevent hardship thip to the Defendants, I further order the Plaintiff to pay the monthly sum of $9,200 to the trust account of
Messrs. Kohli & Singh until further order of the court.
Costs are in the cause.
Nazhat Shameem
JUDGE
At Suva
15th March 2000
Hbc0015d.00b
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