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Brull v Devi [2005] FJHC 286; HBC0191.2005 (4 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0191 OF 2005

BETWEEN:

LUISE ANASEINI BRULL
of Saweni, Lautoka, Fiji, Businesswoman.
PLAINTIFF

AND:

SAROJNI DEVI
(father’s name Ram Narayan Sharma) of Cuvu, Sigatoka.
DEFENDANT

Ms Muir for the Plaintiff
Ms V. Patel for the Defendant.

Date of Hearing: 26 August 2005
Dates of Submissions: 9 September, 23 September & 30 September 2005
Date of Ruling: 4 November 2005

INTERLOCUTORY RULING OF FINNIGAN J

The Defendant has applied to set aside an interim injunction which I made ex parte on 5 June 2005.

The injunction restrained the Defendant from proceeding with any transfer of a Crown Lease to a third party other than the Plaintiff and from encumbering the title until further order of the Court.

The Plaintiff claims that the parties are parties to a contract for sale and purchase whereby she is entitled to the land in question. The Defendant denies the Plaintiff’s claims. The purpose of the interlocutory injunction was to prevent any dealing with the land in question until the parties had been heard or until determination of the Plaintiff’s substantive action which was simultaneously commenced by Writ on 5 June 2005.

Both parties have filed affidavits and a deponent has sworn evidence in support of the Plaintiff. Counsel have filed submissions and Plaintiff’s Counsel has filed copies of authorities and I have considered all of these.

The submissions of both Counsel are wide ranging but still concise. For that reason and because of the substantial interlocutory applications presently awaiting rulings I shall deliver this ruling in short form without specific reference to the submissions or the authorities.

In any event it is not time for me to attempt to resolve the hotly contested claims of fact between these parties. It is clear from the affidavits alone that there is a serious issue between the parties to be tried. Counsel for the Plaintiff has cited cases in which the Fiji Courts have applied the guidelines of American Cyanamid [1975] UKHL 1; (1975) AC 396 and after studying the submissions I am satisfied the decision should be made in accordance with those guidelines.

Apart from the serious issue to be tried, I am satisfied that the Plaintiff’s undertaking as to damages made twice in her affidavits is sufficient and I am satisfied that damages would be a sufficient remedy for the Defendant should the interim injunction remain in force until determination of the substantive issue and should the Defendant suffer loss thereby. Should it be necessary to determine the balance of convenience I am satisfied that it favours leaving the injunction in place because otherwise the land which is the subject of the action could pass out of the control of both parties.

For these reasons and the wider reasons which I discern in the submissions of Counsel for the Plaintiff this application to set aside is refused. The interlocutory injunctions will remain in force until determination of the substantive issue or prior order of the Court.

Costs follow the event and are payable by the Defendant. At the request of Counsel this interlocutory application was heard with an almost identical one on the file HBC0157.2005L. The actions are related. The result is the same in each. For that reason the costs payable to the Plaintiff are payable on each, but I summarily assess quantum at $250.00 on each, a total of $500.00.

D.D. Finnigan
JUDGE

At Lautoka
4 November 2005