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Radha Govinda Vedic Charitable Foundation v Kuyt [2020] FJHC 962; HBC28.2018 (13 November 2020)

IN THE HIGH COURT OF FIJI

AT LABASA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 28 OF 2018

BETWEEN: RADHA GOVINDA VEDIC CHARITABLE FOUNDATION

PLAINTIFF

AND: SOPHIA ANNA KUYT

1^ST DEFENDANT

AND: REGISTRAR OF TITLES

2^ND DEFENDANT

Appearance: Plaintiff - Ms. Somatua S

Date of Hearing : 09.11 2020

Date of Ruling : 13.11 2020

RULING

[1] This is Plaintiff’s ex parte summons seeking an ‘order for the interim injunction made ex parte on 23.11.2018 by Savusavu Magistrate’s Court Action .....’

[2] Plaintiff had obtained an injection from this court restraining first Defendant from entering the property belonging to Plaintiff or removing and or interfering with any property belonging to Plaintiff. This was an ex parte order obtained on 25.6.2018 and these orders were extended till final determination on 4.7.2018. First Defendant had filed statement of defence but never sought to remove the injunctive orders.

[3] Plaintiff now through ex parte summons seeking to vacate ex parte injunctive orders obtained by Magistrate’s Court exercising Family Law jurisdiction restraining dealings of CT 4517 and CT 4518 .

[4] The above two certificates of tile are the subject matter where this court had granted injunctive orders. Plaintiff was not a party to matrimonial action and it is a charitable foundation. First Defendant was one of the parties to matrimonial action. Plaintiff seeks to vacate ex parte orders granted by Magistrate’s Court on 23.11.2018.

[5] Any ex parte order granted without hearing a party, can be canvassed inter partes in the same court. Plaintiff being not a party to matrimonial action should not preclude them seeking vacation of ex parte injunctive orders granted by Magistrate’s court as an aggrieved/interested party.

[6] Higher court will not interfere with such ex parte decision until such an application is made to the court below even in an appeal.

[7] In any event, this application is not an appeal, and made through ex parte summons. So it is struck off in limine.

[8] Plaintiff had also sought restraining order against first Defendant from interfering with the sale of the properties in issue (i.e CT 4518 and CT4517) . This cannot be granted due to two reasons, one being that already there is a caveats lodged by first Defendant regarding the said properties, it needs to be removed before such an order is to be considered. Next issue is the Magistrate’s Court orders made on 23.11.2018 which conflict with such order. Plaintiff needs to make appropriate application to relevant court for either removal of caveat and or variation of ex parte orders.

Orders

a. Ex parte summons filed on 6/11/2020 struck off.

b. No costs.

Deepthi Amaratunga

Judge