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Supreme & Autocare Holdings Ltd v Jims Enterprises Ltd [2014] FJHC 819; HBC323.2013 (12 November 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 323 of 2013

BETWEEN:

SUPREME & AUTOCARE HOLDINGS LIMITED
a limited liability company incorporated in Fiji having its registered office at 181 Mead Road, Nabua in Suva, Fiji

Plaintiff

AND :

JIMS ENTERPRISES LIMITED
a limited liability company incorporated in Fiji having its registered office in Raiwaqa, Suva, Fiji

First Defendant

AND:

MERCHANT FINANCE & INVESTMENT LIMITED
a limited liability company duly incorporated in Fiji having its registered office at Level 1, Ra Marama, 91 Gordon Street, Suva

Second Defendant

AND :

DAIRY FOODS LIMITED
a limited liability company duly incorporated in Fiji and having its registered office at Lot 30 Wailada Industrial Sub Division, Lami

Third Defendant

AND:

MUTUAL STAR INVESTMENTS LIMITED
a limited liability company duly incorporated in Fiji and having its registered office at Lot 29-30 Wailada Industrial Sub Division, Lami

Fourth Defendant

AND:

ARVIND KANT PATEL

of Moti Street, Samabula, Fiji, Company Director

Fifth Defendant

APPEARANCE : Mr Naidu R K of Naidu Law for the Plaintiff

Mr Nandan S of Reddy and Nandan Lawyers for the 1 Defendant

Mr Lajendra N of Lajendra Law for the 2 Defendant

Mr Sharma S of Patel Sharma Lawyers for the 3 to 5 Defendants

DATE OF JUDGMENT: 12 November 2014

JUDGMENT

- Dissolution of Interim Injunction Orders

[1] The summons dated 30 October 2013 was filed by the Second Defendant on 30 October 2014 and sought the following orders:

(1) THAT the urgent interim injunction granted on 18 September 2014 on an ex-parte basis to restrain the Second and/or Fourth Defendant its subsidiaries or related companies by themselves and/or by their servants or agents howsoever from taking any other or further steps to conclude/complete the registration of transfer of the property comprised in Certificate of Title No. 19755, Lot 1 on Deposited Plan No. 4533 to the Fourth Defendant pending an appeal to the Court of Appeal be discharged forthwith;

(2) THAT the matter be recalled to the list within a very short period and the ex-parte application be heard on an inter-partes basis in accordance with principles set out by the Court of Appeal in the following authorities:

(a) Westpac Banking Corporation Ltd v. Adi Mahesh Prasad, Civil Appeal No. ABU0027 of 1997s; and

(b) Roxy Motor parts Limited & Ramend Prasad Charan v. Habib Bank Limited, Civil Appeal No. ABU0060 of 2004;

(3) THAT this Summons be heard on an urgent basis;

(4) THAT the time for service and hearing of this Summons be abridged to one day so as to enable it being heard on an urgent/expedited basis;

(5) COSTS of this application; and

(6) SUCH further and/or other orders the Court may deem just and appropriate in the circumstances.

[2] When the matter was referred to me on 3.11.2014, directions were given to mention the case on 6 November 2014 as per paragraph 2, 3 and 4 of the summons.

[3] It is important to note the following sequence of events in this matter prior to dealing with the summons:

(a) The Writ of Summons filed on 12 November 2013 by the Plaintiff seeking inter alia an Injunction preventing the 2 Defendant disposing of the property comprised in Certificate of Title No. 19755 and specific performance of Sale and Purchase Agreement dated 28 March 2012.

(b) Having heard the application for injunction, by the order dated 9 September 2014 the Application for Injunction was dismissed by Hon. Justice Corea and made an order the cause to take its normal course.

(c) On 15 September 2014, the Plaintiff filed and served the Notice of Appeal and Grounds of Appeal on the Defendants and Ex-parte Summons for Interim Injunction pending appeal was filed by the Plaintiff Appellant on an urgent basis.

(d) The Court Registrar had referred this matter to me in the absence of Hon. Justice Corea and the matter was taken up for ex-parte hearing on 18 September 2014 and the Interim Injunction Orders were granted preventing the registration of the Transfer pertaining to the Property comprised in the Certificate of Title No. 19755 to the Fourth Defendant pending appeal.

(e) On return of Hon. Justice Corea the 2 Defendant filed Summons dated 25 September 2014 for discharge of the Interim Injunction Orders granted by this court was taken up before Hon. Justice Corea on 1 October 2014 and the Order was delivered on 15 October 2014. The application was disallowed on the basis that the Learned Judge cannot disturb the final orders granted by another bench of the High Court.

(f) Subsequent to the Order made by Hon. Justice Corea the 2 Defendant filed summons before this court on 30 October 2014 for dissolution of Interim Injunction Orders granted on Ex-parte basis on 18 September 2014 and the matter was taken up before this court on 6 November 2014.

[4] The counsel for the parties made their submissions. At the outset the counsel for the 2 Defendant inquired from this court as to whether this court has the jurisdiction to hear the summons. This court decided to hear the summons for the following reasons.

4.1 Order dated 18 September 2014 was made ex-parte. Order 32 Rule 6 of the High Court rules states:

"6. The court may set aside an Order made ex-parte"

4.2 Furthermore, this court found this is an appropriate case to use its inherent jurisdiction considering the Affidavit in Support, of the summons filed by the 2 Defendant.

4.3 I also refer to the white book Page 516 32/1-6/14 "Rule 6 embodies the fundamental rule of practice that a party affected by an ex-parte order may apply to the court to discharge it, in as much as he has not had an opportunity of being heard (see per Cohen L.J. in Boyle v. Sacter [1888] UKLawRpCh 126; (1888) 39 Ch. D. 249 p. 251; H.M.S. Archer [1919] P. 1, p.4"

It is further stated:

"There is no power enabling a High Court Judge to adjourn to the Court of Appeal the hearing of a review against the making of an ex-parte order after it has been executed or complied with or before it has been reviewed by the Judge who grants it or another judge, and such an appeal will be dismissed as being an abuse of the process of the court (ibid) (emphasis mine).

I also cite case of WEA Ltd vs. Visions Channel 4 Ltd (C.A.) [1983] W.L.R. p.721 at p.727 in support of my conclusion:

"In terms of jurisdiction, there can be no doubt that this court can hear an appeal from an order made by the High Court upon an ex-parte application. This jurisdiction is conferred by Section 16(1) of the Supreme Court Act 1981. Equally, there is no doubt that the High Court has the power to review and to discharge or vary any order which has been made ex-parte..........."

The present application by the Second Defendant is a review application of the order made by me and I conclude that this court has the jurisdiction to review the decision dated 18 September 2014 made on ex-parte basis.

Accordingly, I conclude this court has the jurisdiction to hear the summons filed by the 2 Defendant.

[5] Now I turn to the merits of the Summons filed by the 2 Defendant.

5.1 The main issue addressed by Mr Lajendra counsel for the 2 Defendant was non disclosure of the material facts to the court when the matter was heard ex-parte. The counsel submitted that in the answering Affidavit sworn by Kalpesh Kumar Patel sworn on 5 November 2014 in paragraph 16 it was stated:

"16. As to paragraph 29 of Lal's Affidavit, I am under legal advice and verily believe that the Plaintiff's solicitors received a letter from High Court registry on 18 September 2014 by fax at around 11.30am informing them that the ruling scheduled to be delivered on 19 September 2014 has been vacated and adjourned to 26 September 2014. There is now produced and shown to me and exhibited herein marked 'KKP10' a copy of the said letter."

Mr Lajendra stated that when the case was called to support at 2.30pm on 18 September 2014 (which was within the knowledge of the Plaintiff's counsel) was a material non-disclosure as such the interim injunction issued by this court should be dissolved.

[6] Mr Naidu counsel for the Plaintiff submitted he came to know from his clerk about the letter marked 'KKP10' when he was attending to the preparation of submissions to make on 18 September 2014 at 2.30pm. It was admitted the letter by the court registry was faxed to the office of the Plaintiff's counsel at 11.30am. The Plaintiff's counsel submitted although receiving of the letter was known to him he did not pay much attention to it. However, this was not disclosed to this court when this court granted the interim injunction orders. In paragraphs 7 and 8 of the Affidavit dated 16 September 2014 sworn by Kalpesh Kumar Patel stated:

"7. THE Plaintiff believes that without the protection of an urgent interim injunction pending appeal the Second Defendant and/or Fourth Defendant will take steps to conclude/complete the registration of transfer of the property comprised in Certificate of Title No. 19755 to the Fourth Defendant. This is also apparent from the letter sent by counsel for the Second Defendant to the High Court on 10 September 2014 requesting that judgment in a related caveat matter be delivered on 19 September 2014. There is now produced and shown to me and exhibited herewith marked 'KKP 2' a copy of the said letter.

8. I am under legal advice and verily believe that the appeal will be rendered nugatory if a limited injunction is not granted by this Court pending the determination of the appeal. If the injunction is refused the property comprised in Certificate of Title No. 19755 will be transferred to the Fourth Defendant prior to the Court of Appeal hearing the Plaintiff's appeal. The Second Defendant has already executed an instrument of transfer over Certificate of Title No. 19755 in favour of the Fourth Defendant and it appears that the Second and Fourth Defendants will conclude the registration of the transfer early next week after the Master delivers his judgment in a related caveat matter.

This shows the facts disclosed to this court were different to the Affidavit when the matter was supported before this court on 18 September 2014 at 2.30pm. The Plaintiff's counsel had the knowledge of the letter dated 18/9/2014 which stated the Judgment on the caveat matter will be delivered not on 19 September 2014 but on 26 September 2014. In such a situation there was no urgency of the matter to be heard ex-parte and non disclosure resulted in issuing of the Interim Injunction Orders. I agree with the counsel for the Defendants.

[7] The principles governing injunctions clearly establish that material non disclosure by a party is fatal to an injunction application. It is the duty of the party applying for the injunction ex-parte to bring to the notice of the court all facts material to the determination of his right. The court cannot accept the excuse that he was not aware of the importance. Uberrima fides or utmost good faith is required. I must state the lawyer's role is not merely to push his client's interest in adversarial process.

The lawyer has a duty to assist the court in the doing of justice according to law. Always the practitioners should be frank in their disclosures to the court. In other words lawyers must do what they can do to ensure that the law is applied correctly to the case. In the present case failure to disclose the material facts resulted in hearing the matter ex-parte and granting the injunctive orders. In such a situation interim injunction cannot sustain it should be dissolved.

I also wish to draw attention to the paragraph 12(3) of the Plaintiff's Affidavit:

"12. (1) ....................................

(2) ...................................

(3) I am under legal advice and verily believe that the lodging of the caveat does not exclude the remedy of an injunction.

(4) .................................."

The Plaintiff's above position contradicts its first Affidavit dated 16 September 2014, where in the urgency for the application was stated as Judgment on caveat is to be delivered on 19 September 2014, which ground was urged for the urgency, to obtain interim reliefs. I conclude the Plaintiff had changed his stance to suit different situations and his intentions are malafide and he is not entitled for reliefs sought from this court.

[8] The Plaintiff cited the case of Shipbuilding (Fiji) Limited vs. Brian Murphy and Another, Civil Action No. 0057 of 1997decided on 10 April 1997 which quoted the case of Brinks – MAT Ltd vs. Elcombe (1983) 3 All E.R 188 it was stated:

"Whether a fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issue to be decided by the judge on the application. The fact that the non-disclosure was innocent, in the sense that it was not known to the applicant or that its relevance was not perceived, is an important, but not decisive, consideration in deciding whether to order an immediate discharge. However, the court has a discretion not withstanding proof of material non-disclosure which justifies the immediate discharge of an ex parte order, to continue the order or to make a new order on terms."

The said principle cannot be applied in this case to continue or to vary the orders. The material non-disclosure was not in the knowledge of the Applicant it was with the Solicitor. Further it cannot be considered as innocent and non decisive. The aspect of urgency was decided by the court on this material fact which was not disclosed. The Plaintiff fails in his application for continuation of the interim injunction.

[9] I also refer to paragraphs 17(1) to 17(7) of the Affidavit dated 5 November 2014 and note the circumstances to hear the application was for the counsels' convenience, which reason does not carry any merits, and I note it is a futile attempt to justify the reason for delay. I note with concern the paragraph 17(2) of the said Affidavit which states:

"17(2) I verily believe that a 8 day postponement (inclusive of Saturday and Sunday) for the delivery of the judgment in Civil Action No. HBC 333 of 2013 was not such an important a factor to be considered at the hearing of the application for ex-parte relief on 18 September 2014 in the circumstances of this case."

On what basis the Plaintiff states or decide what is important and what is not important to the court. How can he express the opinion, in fact Mr Naidu would have made his submissions on this issue. I conclude that the Plaintiff had attempted to speculate the facts for his own advantage and I did not expect a senior counsel in the calibre of Mr Naidu to advice his client to make this statement in his Affidavit.

[10] The 1 Defendant's counsel Mr Nandan concurred with the submissions made by the 2 Defendant's counsels. The 3 to 5 Defendants' counsel Mr Sharma stated the Plaintiff had not made frank disclosures and not acted utmost good faith and non-disclosure was by the counsel himself and he concurred with the submissions made by the 2 Defendant's counsel.

[11] Having considered the Affidavits, submissions and case authorities, this court determines that the Plaintiff did not disclosed material facts as stated in the preceding paragraphs and continuation of the interim injunction will cause prejudice to the Defendants rights which eventually preventing recovering his just dues.

[12] Accordingly:

1) The interim injunction orders made on 18 September 2014 dissolved.

2) The Plaintiff is ordered to pay summarily assessed costs of $1500 to the 2 Defendant.

Delivered at Suva this 12th Day of November 2014

.........................
C. Kotigalage
JUDGE