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Dean v Khan [2005] FJHC 547; HBC0065.2001 (30 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0065 OF 2001

BETWEEN:

MOHAMMED ZAIN RAZAFUD DEAN
PLAINTIFF

AND:

KHAIRULLA KHAN
DEFENDANT

Counsel for the Plaintiff: Messrs Sahu Khan & Sahu Khan
Counsel for the Defendant: Messrs Iqbal Khan & Associates

Date of Hearing: 1 July 2005
Dates for Submissions: 12 August, 2 September & 9 September 2005
Date of Ruling: 30 September 2005

INTERLOCUTORY RULING OF FINNIGAN J

By interlocutory summons the Defendant seeks an order setting aside or else staying an interlocutory order made on 17 August 2004. The summons was filed on 19 October 2004. It was returnable on 26 October 2004. On that day Counsel for both parties appeared before Singh J and he made the following orders:

(i) That the orders made by this Honourable Court on the 17^th day of August 2004 BE STAYED IN INTERIM UNTIL THE MATTER IS HEARD.

(ii) That the Plaintiff filed his affidavit in reply within 14 days

(iii) That this matter be adjourned to 26 November 2004 for mention

Well outside the 14 days the Plaintiff filed an affidavit on 16 November 2004. The matter came before the court on 26 November 2004 and thereafter was continuously adjourned ostensibly for the Defendant to file an affidavit in answer. By 24 June 2005 no affidavit had been filed and I fixed 1 July 2005 for hearing of the Defendant’s application. Written submissions were time-tabled and Counsel for both parties have filed submissions.

It is apparent, though not obvious, that the orders made by Singh J. on 26 October 2004 were intended to be interim orders pending further evidence and submissions by counsel on the October interlocutory summons.

The orders made on 17 August 2004 were orders of Singh J. restraining the Defendant from disposing of assets that are within the jurisdiction of this court and requiring him to deposit $80,000.00 in court if the company K.S. Khan Investment Ltd. sells any of its assets. The sealed order contains a penal notice informing the Defendant and K.S. Khan Investment Ltd that if they disobey that order they will be liable to process of execution for the purpose of compelling them to obey it.

I have read the submissions of Counsels for both parties. There is no writ or statement of claim on the file but there is a photocopy of what appears to be a copy of the same. The Plaintiff is claiming that the Defendant defaulted in rent to the sum of $55,000.00 and seeks that amount together with general damages. The statement of defence contains positive defences and a counter claim for $30,000.00. There is no discernable connection with any company called K.S. Khan Investments Ltd. In an affidavit supporting the interlocutory summons for the restraining orders one of the Plaintiffs states that company is wholly owned by the Defendant and his wife and that he believed the Defendant was negotiating to sell a building owned by that company and to take the proceeds to New Zealand where he lives.

Defendant’s counsel relies primarily on Reddy’s Enterprises Ltd v The Government of Reserve Bank of Fiji Civil Appeal No. 67/90 a judgment of Tikaram JA. No copy is supplied but counsel state that the court considered:

(i) The nature of the application
(ii) Any prejudice
(iii) Balance of convenience

Counsel thereafter cited several other cases along those lines. The authorities cited amount to a principle that the court should not be inflexible and should apply a wide discretion to ensure that it does not deny justice to the parties. Some of the dicta cited by counsel go beyond what I need to consider here.

Counsel for the Plaintiff points out that all the Plaintiff was seeking in the application for restraining orders was something in the nature of security. The Defendant lives outside Fiji. He was served outside the jurisdiction. He has assets in Fiji. He counter claims a cause of action in Fiji. He has not filed any affidavit denying the claim that he may sell the assets of his company and removed them to New Zealand.

In my opinion it is prudent of the Plaintiff to seek security in the circumstances. The Defendant has shown no ground for thinking it would be unjust to restrain him from disposing of assets in Fiji while this case is pending.

I now reinstate the restraining orders of 17 August 2004. I discharge the interim stay of those orders dated 26 October 2004. I dismiss the Defendant’s application for stay filed in October 2004.

The matter should proceed to hearing as soon as possible. The issues are not difficult and are capable of settlement between the parties. It is a pity that a year has been wasted by this baseless interlocutory application.

The matter will go into 25 November 2005 call over and will be given a hearing date. If it is not settled and if the Defendant still seeks discharge of the interlocutory restraining orders then he may deposit security and apply for discharge.

I fix costs for the Plaintiff and assess them summarily at $500.00.

D.D. Finnigan
JUDGE

At Lautoka
30 September 2005