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Hotel and Hospitality Supplies Ltd v Virend [2005] FJHC 691; HBC0028.2005L (11 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0028 OF 2005L

BETWEEN:

HOTEL & HOSPITALITY SUPPLIES LIMITED
Plaintiff

AND:

ROBERT VIREND
Defendant

Mr. E. Moapa for the plaintiff
Mr. M.K. Sahu Khan for the defendant

Date of Hearing: 11 November 2005
Date of Ruling: 11 November 2005

EXTEMPORE RULING

The plaintiff commences his action by Writ of Summons filed on the 11th February 2005 and on that same day filed an Ex-parte Notice of Motion seeking interlocutory injunctive relief. Orders were made on which orders required all documents to be served and the matter to come before the Court by way of Inter-partes hearing.

The cause of action arises from the employment of the defendant with the plaintiff and the termination of that employment. Employment appears to have been of relatively short duration and the plaintiff alleges the defendant is in debt to it and conversely it will appear the defendant alleges the plaintiff as in the Motion. The Motion is opposed. In support of the Motion, the plaintiff relies upon the affidavit of Ashwin Krishna sworn on the 10^th February 2005 and the affidavit of Vinod Kumar sworn on the 17^th March 2005.

The defendant relies on his affidavit sworn on the 17^th February 2005 and a further affidavit sworn on the 5^th May 2005.

In summary, the orders sought by the plaintiff are that certain property alleged to be owned by the plaintiff and possessed by the defendant be returned to the plaintiff and whilst that property is in the possession of the defendant, the defendant be restrained from disposing of it. Further orders are sought to restrain the defendant from interfering with the operation of the plaintiff’s business, attempting to publish or publishing matters adverse to the plaintiff.

The issues with respect in granting the interlocutory relief such as here sought have been clearly set out in the words of Lord Diplock in American Cyanamid v Ethicon [1975] UKHL 1; [1975] A.C. 396 been adopted in Fiji by the Fiji Court of Appeal in Roxy Motors Parts Limited v Ramend Prasad Charan & Another – Civil Appeal No. ABU0060 of 2004.

In summary the 3 fundamental questions the Court has to consider are:

(a) Is there a serious question to be tried?
(b) Are damages an adequate remedy?
(c) Where does the balance of convenience lie?

The principles for consideration are expressed by Lord Diplock at page 406 in American Cyanamid where he said:

“The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensate din damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where “the balance of convenience” lies.”

His Lordship went on to say at page 407:

“It is not part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.”

In addition, further considerations arise with respect to the orders sought in this matter. The plaintiff argues that the second order sought by the plaintiff, that is an order that the defendant be restrained from interfering with the operation of the plaintiff’s business, is in the form a quia timet injunction and that requires further considerations to be made by the Court.

The defendant referred the Court to Snells Principles of Equity. That book and other writings on the subject all confirm that for an order in the form of a quia timet to be granted, it must be shown if there is an imminent threat of damage. However it is also a fundamental principle that where there is an existing covenant that the enforcement of that covenant is outside the earlier pre-requisite.

The facts that appear in the affidavits filed suggest that the representatives of the plaintiff have a reasonable and honest belief that the defendant has spread false information about the plaintiff. The affidavit evidence also has annexed to it a copy of the employment contract which contains various covenants, whilst not being in the specific form of the order sought, certainly would tend to go to the tenor of the order sought. In addition, there would appear to be no disadvantage to the defendant from the granting of a quia timet injunction unless of course the defendant has the desire or intention to that which the order seeks to restrain him from doing.

Returning to the remaining orders sought, there is no issue that there is a serious question to be tried and it may be considered that damages are in fact an adequate remedy for the plaintiff. However it is submitted and there is nothing in the affidavit to the contrary that the defendant does not have the capacity to meet any order of damages that may flow from the plaintiff being successful in its action. It follows therefore that the balance of convenience favours the preservation of the plaintiff’s property to minimize any ultimate order for damages that might be made in favour of the plaintiff and thus to maximize its ability to recover any such order that might be made.

As with the quia timet there appear to be no disadvantage or detriment to the defendant when all the plaintiff seeks is a return of the property it owns or alternatively that the defendant be restrained from disposing of or dealing with the property owned by the plaintiff. In the circumstances therefore I am of the opinion that the balance of convenience favours the granting of the orders sought by the plaintiff and accordingly the Orders of the Court will be:

1. The defendant his servants and or agents is restrained from selling, trading, transferring or assigning any property that was taken or removed by the defendant from the plaintiff’s showroom at Nadi Muslim Compound, Namotomoto.
   
2. The defendant is restrained from interfering with the operation of the plaintiff’s business, publishing and or attempting to publish, advertise or verbally spreading words that is adverse and will cause harm and disrupt the operation of the plaintiff’s business.
   
3. The defendant’s returns to the plaintiff all properties that he had taken or removed from the plaintiff’s showroom in good and workable conditions.
   
4. The plaintiff be at liberty to seek the assistance of the Police to recover and or return the said properties taken and or removed by the defendant from the plaintiff’s showroom.
   
5. The defendant is to pay the plaintiff’s costs of Motion as assessed or agreed.
   

The defendant is to file and serve any defence within 14 days and the Writ of Summons is adjourned to the 20^th January 2006 for mention.

JOHN CONNORS
JUDGE

At Lautoka
11 November 2005