High Court of Fiji

[6] It was further held that that 1^st Plaintho isa resident of Fijf Fiji had not obtained permission as required under Section 10 of Exchanxchange Control Act,1950 and cannot institute proceedings on behalf of the 2^nd Plaintiff and the 2^nd Plaintiff was remove from the action.

[7] The Defendant did not deny the receipt of money but stated it was to set up a poultry farm and he had set up that farm and it functioned for some time and upon request of the Plaintiff its operations were terminated and money distributed.

Analysis

[8] 1^st Defendant counterclaimed for damages resulting from ex pate injunction .In the counter claim 1^st Defendant is seeking for damages pursuant to undertaking given by the 1^st Plaintiff at the time of the ex parte injunction.(see paragraph 33 of the statement of defence of the 1^st Defendant).

[9] There is no defence to counterclaim though a reply to the defence was filed on 13.10.2016 and judgment on default was entered in relation to the counterclaim on 17.11.2016.

[10] In junction is an equitable remedy and court has the discretion in granting orders sought or to vary them so as to restrict orders that would justify the purpose of granting such orders.

[11] In this case the court had not granted orders 4, and 5 sought in the ex parte motion that deals with the management of the sheep farm and entering the land, where sheep farm operated. So, the Plaintiff was not prevented from either entering and or managing sheep farm and he was restrained from selling or dealing of movable and immovable property on the said land.

[12] Ex parte orders granted were valid only from 30.7.2015 to 31.8.2016 and they were

1. Restraining 2^nd Defendant from issuing a lease known as Naravuka Stage 2 (the land)
2. Restraining 1^st Defendant from killing, selling, or removing or dealing with

sheep and removal of machinery, building materials, fencing or other improvements on the land.

100. Freezing of ANZ bank account No 05497494.

4. ANZ bank to provide the court with Bank Statements of above account from 26.2.2013 to 30.7.2015.
5. The Defendant to provide court a list of his assets.
6. Restraining 1^st Defendant from disposing with assets bought with funds sent to him by the 1^st Plaintiff directly or through Balaga Bay Farms (Fiji) Ltd.

[13] 1^st Defendant is required to provide evidence to assess the damages incurred in terms of the default judgment entered in regard to his counter-claim.

[14] Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1974] 2 All ER 1128 at 127, [1975] AC 295 at 361 held;

'[The court] retains a discretion not to enforce the undertaking if it considers that the conduct of the defendant in relation to the obtaining or continuing of the injunction or the enforcement of the undertaking makes it inequitable to do so, but if the undertaking is enforced the measure of the damages payable under it is not discretionary. It is assessed on an inquiry into damages at which the principles to be applied are fixed and clear. The assessment is made upon the same basis as that upon which damages for breach of contract would be assessed if the undertaking had been a contract between the plaintiff and the defendant that the plaintiff would not prevent the defendant from doing that which he was restrained from doing by the terms of the injunction. (See Smith v Day ((1882) 21 Ch D 421 at 427) per Brett LJ.)'

[15] In the evidence 1^st Defendant did not state any damage that occurred to him due to restraining order issued to 2^nd Defendant regarding the preventing them from issuing a lease for the land which was operational during the pendency of the ex parte order.

[16] There cannot be any loss to the 1^st Defendant in the order that directed ANZ bank to provide Bank Statements of Account No 05497494 to the Court or the order to provide list of his assets to the court. In his oral evidence he did not even mention about these orders and or any loss from such orders.

[17] If a substantial amount of money is frozen in an account from a businessman it can cause damage due to the loss of opportunity cost of the money involved. For this reason and other devastating consequences that can result in an appropriate case this method of restraining of a defendant is considered as using ‘nuclear weapon’ ( see; Cheltenham and Gloucester Building Society v Ricketts [1993] 4 All ER 276 at 284, [1993] 1 WLR 1545 at 1554 per Peter Gibson LJ.

[18] However when the claim is involved in the same subject matter preservation of the subject matter or a freezing orders to maintain staus quo can be obtained through an interim injunction.(see Universal City Studio v Muktar & sons Ltd [1976] 1WLR 658 [1976]2All ER 330.

[19] The 1^st Defendant needs to prove the amount of money that was frozen and how much profit or income he could make from that.

[20] The Plaintiff did not prove either of the above. He did not produce at the hearing bank statement to show how much money was frozen. If there was no money when the account was frozen there cannot be any loss. This can be so if Defendant pre-empted such an action and siphoned the money before an order to freeze.

[21] Since ex parte order directed ANZ bank to provide Bank Statements regarding personal Account No 05497494 to the court the court is having custody of them and perusal of them show a balance of$1,754.89. If this is considered still the Defendant needs to prove how much profit or income could have earned from that during the period it was frozen.

[22] So, the 1^st Defendant’s evidence that he suffered loss due to freezing order is without any base and needs to be rejected. Even if he proved that there was sufficient money in the account when it was frozen his burden of proof is not to prove the loss due to freezing of the amount of money in Account No 05497494 in ANZ bank during the time period of the ex parte order which was dissolved subsequently.

[23] The Plaintiff was unable to prove that he has a business that earns substantial income. No documentary evidence was presented at the trial. Even in his oral evidence no evidence was given regarding its income/turnover, profits of his business. No accounts produced to assess even an estimation of his probable profit.

[24] Only Plaintiff gave evidence and said that he was seeking a damage of $100,000 as damages. He did not produce any documents or how that amount was calculated. He said due to the ex parte injunction order he could not sell sheep. It was operational for a period only and how many sheep were to be sold during that time was not revealed hence no damage can be assessed.

[25] In E Bailey & Co Ltd v Balholm Securities Ltd [1973] 2 Lloyd's Rep 404 the claim was based on damages due to loss of profit from commodity market and Kerr J at p 416 held;

“'Mr. Staughton contended that they were entitled to substantial damages on the ground that they had lost the chance of making a profit. He relied on cases such as Chaplin v. Hicks [1911] UKLawRpKQB 104; [1911] 2 K.B. 786 which deal with the measure of damages for the loss of a chance. But those were all cases in which the plaintiff might or might not have obtained some pecuniary advantage or benefit and lost the chance of doing so as the result of the defendant's wrongful act. He therefore lost the chance of being better off than he was, but he was not exposed to the risk of being worse off. In cases like the present, on the other hand, a person who is prevented from speculating in cocoa or sugar futures may have lost the chance of making money or may have been saved from losing money. A cynical view would be that there is an equal chance either way. No doubt experience and skill play a large part, and to this extent there may be said to be a better chance of winning than losing. But in my view this is not the kind of situation which the law should recognize as giving a right to damages for the loss of a chance. Even though in law trading in commodity futures does not amount to gambling, the loss of a general opportunity to trade-- as opposed to the loss of a particular bargain--is in my view much too speculative to be capable of having any monetary value placed upon it.”

[26] The ex parte injunctive order was operational from 30.7.2015 to 31.8.2016. During that time period, how many sheep were affected in what manner, and the cost of that was not stated or produced through evidence. So even a speculative loss could not be assessed from the evidence presented at the hearing.

[27] The 1^st Defendant also said since his personal account No 05497494, was frozen it affected his business. He said it was his personal account which he got income from his business as market vendor. The 1^st Defendant did not state even his profit margin for a month or how it had affected and to what extent it had affected to his business was affected. He could have opened another account for his business.

[28] He said his insurance lapsed due to the non-payment of premium which was a payment from the said account. Insurance premiums can be paid to the insurer if the account is frozen or closed. What it the premium and why it could not be paid using another method was not explained.

[29] In any event there was no evidence of 1^st Defendant seeking order of the court to release funds for payment of insurance premium. In a freezing order a party affected adversely can make urgent application for release of funds till final determination.

[30] The Plaintiff was unable to prove any loss due to lapse of insurance. He did not even produced evidence to prove that there was insurance for him that had lapsed during the period when ex parte injunction was operational

[31] In the circumstances the Plaintiff failed to provide evidence to assess the damages due to ex parte order and accordingly no damage is granted.

[32] The 2^nd Defendant is seeking costs from the Plaintiff. There is no cause of action pleaded against the 2^nd Defendant and it was made as party to ex parte injunctive order as the order was issued restraining them from issuing lease to the land, and no cause of action pleaded against them. So they could have sought to strike out from action after ex parte injunction was dissolved on 31.8.2016. In the circumstances I award a cost of $750 against the 2^nd Defendant. The Plaintiff is seeking costs from 1^st Defendant regarding counterclaim but they have not filed a defence to counterclaim and judgment was obtained on default. In the circumstances no costs awarded for the Plaintiff. 1^st Defendant is also awarded a cost of $750 summarily assessed considering the circumstances of the case.

Final Orders

[33] a. The Plaintiff’s claim is dismissed and struck off.

2. The counter-claim of 1^st Defendant is struck off.
1. The Plaintiff is ordered to pay cost of $750 for each defendant.
   

Deepthi Amaratunga

Judge