IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0060 OF 2005

BETWEEN:

GEORGE BARLEY
Plaintiff

AND:

RICHARD KNOX BARLEY
First Defendant

VICKI ANNE BARLEY
Second Defendant

SUNSET HOLDINGS LIMITED
Third Defendant

Counsel: Mr. P. Knight – for Plaintiff
Mr. M. Keil – for 1st, 2nd and 3rd Defendants

Date of Hearing & Decision: 31st August, 2005

EX TEMPORE DECISION

I reserve the right to perfect this decision.

Background

This is an application by the defendants for the various orders set out in the inter-parte summons dated the 27th of July. The background to the matter is that the parties were variously related to Mr. John Barley (deceased) and together they held an interest in what can loosely be described as a family company known as Sunset Holdings Limited. That company owns a significant property in Fiji of some 365 acres, some deponents say it has a value of approximately $3m.

The plaintiff in these proceedings George was concerned to preserve his interests in the company and thereby the land. The writ essentially claims that by a process of mistake or fraud he transferred his one third share in the company to the first defendant Richard.

In the Fiji proceedings he seeks return of those shares and in the interim seeks to preserve the major asset that I have earlier referred to.

Collaterally in the Supreme Court of Queensland in its Brisbane Registry (exhibits PK1 to PK10) the same plaintiff is seeking provision out of his father’s estate effectively for a share of father’s one third interest in the same company Sunset Holdings Limited.

When the Fiji proceedings came before me earlier this year I was concerned to preserve the assets that were the subject of the litigation so that neither party to the proceedings would be prejudiced.

It was clear that an undertaking as to damages was required but it was equally clear that the plaintiff was impecunious. That undertaking was not filed. I don’t see that as in any way invalidating my earlier order. Effectively by this application the defendants are seeking that an undertaking as to damages be immediately filed and be specified to such an extent (in the sum of $3m) that effectively would render the earlier injunction nugatory. The defendant applicants know the obvious that this plaintiff is impecunious and there’s no way he could back up raise such a substantial undertaking. If I grant the order then they will effectively seize control of the company and thereby its major asset, the Land. 
 
I have this morning raised with both counsel the prospect of first resolving the estate proceedings in Queensland before resolving the proceedings in Fiji. Their instructing solicitors from Australia are minded not to pursue that course but to resolve the Fiji action first.

Whatever way the matter resolves one thing is clear and that is that control of the major asset under litigation in both Fiji and Queensland must be preserved. In my view Mr. Knight puts it succinctly when he poses the issue for the court as:

“What risk or prejudice of damage is there if the injunction remains?”

There can be no risk if the injunction remains but is given some flexibility to take into account any dealings with the asset before both these proceedings and the proceedings in Queensland are resolved. I propose varying the injunction to allow a short return date to take into account any need to deal with the land in the interim.

In similar fashion a short return date could also take into account a variation of the injunction to allow any joint venture development of the property but nonetheless preserving the plaintiff's rights in the asset until there was finality to the proceedings.

I am also of the view that if I was to lift the injunction that may have the practical effect of frustrating the outcome of the proceedings before the Supreme Court in Queensland is if I lift the injunction then the shareholding in the company can be dealt with. And that may (I emphasize may) create a situation where the asset can be removed or protected from execution on any judgment given in the Queensland Court re dividing up the deceased’s estate.

In their submissions in support of their application the defendants referred to the decision of Pacific Timber Development Limited vs New Zealand Products Limited [1994] FJHC 149 HBC0623J.93S (19th October 1994) where our present Chief Justice noted that the court has a power at anytime during the subsistence of an injunction to order that the party with the benefit of the injunction be required to provide some form of additional security.

In that decision the learned Chief Justice observed that the nature and form of that security is a matter for the discretion of the court to determine having regard to all the circumstances of the case including whether or not the party giving the undertaking as was a resident, the nature and value of any location of assets within the jurisdiction and most importantly the nature of any claims put forward by the parties in the substantive action.

In my view this last consideration is important in these proceedings. In this case we have Mr. George Barley the plaintiff who is clearly impecunious seeking to have returned to him a significant shareholding in the subject company in proceedings in Fiji and seeking a share in the estate of his late father in proceedings in Queensland. The company’s major asset is Fijian land. There can be no prejudice to the company’s affairs if I allow some flexibility to ensure it can continue to function to its best potential. There can be therefore little or no prejudice to the competing defendant shareholders. In my view their current belief that damage to the order of $3m must be secured by the plaintiff has no merit. The applicants have not satisfied me that there is any more prospect of prejudice to the company or its asset if the injunction remains. In these circumstances Mr. Barley’s undertaking would not add any real comfort to them. I dismiss the application.

I do, however, take this opportunity to vary the injunction. The injunction is to be varied to the extent that either party may apply to court on 7 days notice for such further orders concerning dealings with Sunset Holdings Limited as may be required in the circumstances.

I explain that this variation is to enable any party to the proceedings to come back to me and ask for the injunction to be varied to allow some dealing with the shareholding or with any asset owned by the company that nonetheless preserves the substantial asset which is really the subject of litigation.

I don’t believe that this is a circumstance where I should fix costs and costs will be reserved to follow the cause.

I make it clear that the interim injunction is now extended until trial or such further applications are made as is made by either party.

Gerard Winter
JUDGE

At Suva
31st August, 2005