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Wing Investments Ltd v Chand [2004] FJHC 394; HBC0440.2003L (24 March 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0440 OF 2003L

BETWEEN:

WING INVESTMENTS LIMITED
a limited liability company having its registered office at Nadi Airport.
Plaintiff

AND:

RAKESH CHAND
Defendant

Counsel for the Plaintiff: Mr. S. Krishna
Counsel for the Defendant: Mr. M.K. Sahu Khan

Date of Hearing & Judgment: 24 March 2004

EXTEMPORE JUDGMENT

This matter comes before the court upon the plaintiff filing a Writ of Summons on 12 December 2003. On that same day, the plaintiff also filed a Summons for interim injunction, which was to be dealt with, and which was dealt with ex parte. The Summons for interim injunction was supported by an affidavit sworn by a Director of the plaintiff company on 8 December 2003.

On the 12^th of December 2003, Mr. Justice Byrne granted the orders sought by the plaintiff, that is, an injunction restraining the defendant from evicting the plaintiff from the premises that he occupied. Other ancillary orders were made for the service of the order and the adjournment of the Motion.

Subsequent to the granting of the order ex parte, the plaintiff filed a supplementary affidavit sworn on 15 December 2003. It appears that the purpose of that affidavit was to place before the court a supplementary agreement dated 30 June 2003 with respect to the sale and occupation of the premises.

The defendant has filed an affidavit dated 18 December 2003, in which affidavit issue is taken with many of the matters raised in the plaintiff’s affidavits and in particular, the plaintiff raises allegations of non disclosure by the plaintiff in seeking the interim injunctive relief.

There is no affidavit filed on behalf of the plaintiff in response to the defendant’s affidavit, notwithstanding that the plaintiff has caused to the proceedings to be adjourned, it would appear from the file on at least three occasions to facilitate the filing of an affidavit in reply.

The defendant refers the court to a decision of the Fiji Court of Appeal in Jai Prakash Narayan v Savita Chandra, Civil Appeal No. 37 of 1985 where page 3 of that judgment, the court said and I quote:-

“...And in the circumstances of the case, in the absence of a reply, we hold the inference inescapable that what the respondent has said to be true.”

It is perhaps trite to say that if there is in fact no rebuttal then the court has little choice but to accept the statements as being true. There is no reason to do otherwise.

As I have said in recent judgments, an applicant for ex parte orders has an obligation to the court to be frank and candid in disclosing material matters to the court. This obligation of candour includes especially disclosure of matters that may be adverse to the applicant’s case. In breach of that obligation of candour on an application for interlocutory injunction, would generally lead to the dissolution of orders made pursuant to that application.

The Fiji Court of Appeal in Rauzia Mohammed v ANZ Banking Group, Civil Appeal No. 66 of 1984, cited a statement made in Dalglish v Jarvie 2 Mac G.231, which statement was cited with approval by Lord Cozens-Hardy M.R. in Rex v Kensington Income Tax Commissioners and I quote: -

“It is the duty of the party asking for an injunction to bring under the notice of the court all facts material to the determination of his right to that injunction and it is no excuse for him to say that he was not aware of the importance of any facts which he has admitted to bring forward,”

The court in that matter also relied upon a Republic of Peru v Dreyfus Bros. & Co. 55 L.T.R. 802, where Kay J. said and I quote:-

“I have always maintained, and I think it most important to maintain most strictly, the rule that, in ex parte applications to this court, the utmost good faith must be observed. If there is an important misstatement, speaking for myself, I have never hesitated, and never shall hesitate until this rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this court the importance of dealing in good faith with the court when ex parte applications are made.”

The defendant contends that the plaintiff:-

1. Failed to disclose that the tenancy agreement dated 12 December 2002 was signed only by one of the owners of the property;
   
2. Failed to disclose that on the 14^th of March, 2003, notice to that effect was given by the plaintiff to Krishna Devi Kumar;
   
3. Failed to disclose that there had been substantial arrears of rent for 10 months amounting to Six Thousand Dollars ($6,000.00) and that notice stated the 1^st December 2003 was duly served on the plaintiff.
   

And of course, as I have said, it is apparent from the court file that the plaintiff failed to disclose the contents of the supplementary affidavit which was sworn some three days after the interlocutory relief was sought and granted.

I am therefore of the opinion that the plaintiff has failed to disclose matters which in my opinion are or would have been at the time the relief was granted material in considering whether or not to grant the relief.

I acknowledge that the test is indeed a severe test and for the reasons that I have already stated, so it should be.

Being satisfied that there has in fact been a material non disclosure, it is unnecessary for the court to consider the other matter raised by the defendant and accordingly the Orders of the Court are: -

1. That the Orders made on the 12^th of December 2003 be set aside and the injunction be dissolved;
   
2. The proceedings to take their normal course;
   
3. The plaintiff to pay the defendant’s costs assessed in the sum of Two Thousand Dollars ($2,000.00).
   

JOHN CONNORS

JUDGE

AT LAUTOKA

24 March 2004