Magistrates Court of Fiji

• Whether there is a serious question to be tried.
• Whether damages would be an adequate remedy.
• What would be the balance of convenience of each of the parties should an order be granted?
• Whether there are any special factors.

13. The American Cyanamid guidelines must be invoked wherever appropriate. Laddie J in Series 5 Software Limited v Clark [ 1996] 1 All ER 853 held;
    

The American Cyanamid principles for granting interlocutory injunctions have been applied in Fiji and are the law [Mataqali Namatua v. NLFC and 3 Others No. ABU0020 of 2004S, 4 March 2005]. Provided the court in which the application is filed has jurisdiction to grant injunctions, the basic principles should be applied by the court when considering the application.

14. In Natural Waters of Viti Limited v Crystal Clear Mineral Water (Fiji) Limited (unreported Civil Appeal No. 11 and 11A of 2004 delivered 26 November 2004), Fiji Court of Appeal also has indicated that the principles set out in American Cyanamid case are appropriate test to be applied in law of injunctions.
    
15. The three matters to which the Court must address itself in respect of the present application are, per American Cyanamid:
    • ● is there a serious issue to be tried;
    • ● are damages an adequate remedy;
    • ● if not, where does the balance of convenience lie.
16. Here, the injunctions injunctions are sought. Inaroa/New /New Zealand it has been said that the standard to be reached if a Mareva injunction is to issue is higher that for an ‘ordinary’ injunction.
    
17. In Bank of New Zealand v. Hawkins [1989] NZHC 198; (1989) 1 PRNZ 451 the Cohe Court said the ‘threshold requirement’ of a ‘good arguable case ... is more onerous than that normally applied in the case of interlocutory injunctions of a serious questo be o be determined’. In Australia the standard has been set variably as ‘a reasonably arguable case’, ‘ a serious question to be tried’, ‘a prima facie case’ and ‘a good arguable case’: Biscoe, Mareva and Anton Pillar Orders – Freezing and Search Orders, Butterworth’s, Sydney, NSW, 2005, p. 5
    
18. In addition to the standard or threshold requirement, for a Mareva injunction , it must be shoat asse assets of the defendant exist within the jurisdiction to which the orders can apply, and that there is a ‘real risk that the defendant dissior dispose of assets so as to render himself &#82 “ju20;judgment proof”’: Bank of New Zealand v. Hawkins
    
19. In so far as the latter two requirements are concerned, the Respondent:
    • ● has property to be dispersed to and the property is and will be within the jurisdiction; and
    • ● unless restrained from doing so, will sale/disperse this property which is the matter in issue here and in the substantive proceeding (F9) which is yet to finalize by the Court.
      
20. The applicant claims the said property is “matrimonial property”. In KN v. MYH – Fiji Family High Court Case No. 08/Ba/0043, in which Her ladyship Justice Anjala Wati had held the following:-

I wish to quote;

“In Australia, the Courts have identified a four-step process in working through every property case. Although this four-step process is not mandated by the words of the Act, the process is entirely consistent with the scheme of the Act and it provides a very useful structure for the Magistrate hearing the case.

21. I will begin by very briefly running these four steps. I will then discuss them in a little more detail.
    • (i). identify and value the assets and liabilities of the parties;
    • (ii). assess the parties’ contributions to the assets;
    • (iii). assess a range of factors set out mainly in s 162(3) of the Act; and
    • (iv). Consider whether the order proposed after consideration of all those factors is – to use the word employed in the Act – “appropriate”.
22. Although the four-step provides a framework in which to work through a disputed property case – the four steps do not actually provide an entirely predictable answer to the way in which the property is to be divided.
    
23. Each step is not done as a separate little Court hearing and the Magistrate does not announce his or her decision at the end of each of the four steps along the way. The four steps are all happening together in the one trial – and it is only when the Magistrate makes the final decision that you will see the four steps laid out and findings made in relation to each step.
    
24. It seems to me appropriate in all the circumstances to take this into account above criteria to determine the “matrimonial property” after a CAC-C and PH procedure before the Registrar when considering whether or not to grant injunctions in the nature of thoseerequested by the Plaintiff should issue. I should, however, say at this point that although I mindful Sharma v. Akhil Holdings Ltd [2006] FJHC 82; HBC155.2002L (15 December 2006) which relates to Mareva injunctions,
    
25. In Mercedes Benz AG v. Leiduck [1996] AC 284, at 306D (PC) noted, the assets in question are the assets arising directly in the Plaintiff’s claim. They are at the center of the dispute. Hence, the ‘ordinary’ principles of American Cyanamid apply. If, however, I am wrong and the Mareva principles should be applied, then they have been and are being taken into account and addressed in this judgment.
    
26. The parties are in dispute as to whether there is a ‘serious issue to be tried’. That they are in dispute on this indicates that there is, at least, a dispute and a substantial one between the Applicant and the Respondent. This does not mean that there is a serious issue to be tried. However, it does mean that it is necessary to look at the substantive proceeding for, as noted, both the Applicant and Respondent as to the substantive proceeding is pending before Family Court Registrar to conclude.
    
27. The Applicant sought that “The Respondent lady to provide Shekinah Law with all the documents pertaining to the sale of the matrimonial property”Wherefore; on the same breath, I would like to remind the learned counsel of the Applicant that is mandatory for the Registrar to consider Discoveries and interrogatories and hence this Court would not intervene. I reproduce the Family Law Rules 2005, Division 9.3 under the heading of the Conciliation conferences matters to be considered” 9.08.
    
28. At a conciliation conference, all issues relating to the following matters must be considered, if appropriate:
    • (a) the possibility of settlement of any issue or issues in the proceedings;
    • (b) the defining of issues and orders sought;
    • (c) amendment of documents;
    • (d) issues (if any) as to valuation;
    • (e) the filing and service of affidavits;
    • (f) discovery and inspection;
    • (g) interrogatories;
    • (h) notices to admit facts or documents;
    • (i) issue of subpoenas or witness summonses;
    • (j) if there is more than one application in the proceedings that has not yet been determined—the possibility of applications being heard at the same time;
    • (k) which party is to have carriage of the proceedings;
    • (l) any directions necessary to ensure that the proceedings are ready for a pre-hearing conference;
    • (m) the date for a pre-hearing conference.
29. The Respondent submits that in light of the non-existing threat to any claims the Applicant may have on the property, his Form 12 application should therefore be dismissed with further orders of the court for proceeds of the sale to be deposited into an interest bearing account of the Family court after payment of debts pending further Orders of the Court.
    
30. Bearing in mind Lord Diplock’s observation that a resolution of conflicts on facts and claims in Affidavits or difficult questions of law is not for the Court at this stage, I am of the view that the CAC-C and PH procedures to be concluded. The Court and Parties should obtain a valuation report through the ‘Professional Valuers’.
    
31. Both the applicant and the respondent live in Suva and Lautoka while the property in dispute is in Suva.
    
32. I am mindful and aware that The Respondent “may sink deeper and deeper into debt each passing month. This is affecting her financially and emotionally. Further delay to the sale of the property will cause her more harm. The Applicant is well aware of this.And wwith the sale of the property the Respondent will be able to meet all debt repayments.
    
33. But the Application by the Respondent and the Applicant both pre mature as the Court is unaware about the current market value of the property. Should the Court Order the Respondent to deposit proceeds of sale be deposited into the Family court; this court not in a position to determine the current market value without a valuation report.
    
34. When considering the submission by the Respondent, there appears to be a high level of emotion and distress. In Druma v Nakete [2008] FJHC 94; HBC214.2007 (14 April 2008) it was held that; “the applicant‘s affidavits exhibits emotion and distress, whatever the level, does not mean that they have a ‘winnable’ claim or a ‘serious issue to be tried’ or even an arguable case.
    
35. The role of courts is to administer, interpret and apply the law. Sometimes the law does deal with, and sometimes adequately deal with, matters involving substantial emotion and distress and can even at times ameliorate them. Whether this is an occasion where the law may play a part and the Court has a role is the question in issue.”
    
36. As earlier noted, the applicant seeks an order for an injunction as noted above. The Court also of the view that the Order sought by the Applicant that “the sale proceeds be deposited into the Family court” is pre mature at this stage of the case. Moreover; some relives sought by the Respondent also pre mature to consider at this stage of this case.
    
37. Also, there is a complaint against respondent from which a serious issue would likely arise’ and there is ‘ a serious question to be tried’ as the respondent attempted to sale the property before the listing of expected property distribute proceedings:
    

In essence therefore,

38. Serious Issue to be Tried

Clearly, the Applicant believes there is a most serious issue before this Court in its “Property Distribution” as the subjected property could be consider as a matrimonial property... At the heart of the dispute, first and foremost has to determine that: Whether the property in question is considered matrimonial property?

1. Property is defined in section 2 of the FLA to mean “property within or outside, to which those parties are, or that party is, entitled, whether in possession or reversion”. And also to;
   • (i). identify and value the assets and liabilities of the parties;
     • (ii). assess the parties’ contributions to the assets;
     • (iii). assess a range of factors set out mainly in s 162(3) of the Act; and
     • (iv). Consider whether the order proposed after consideration of all those factors is – to use the word employed in the Act – “appropriate”.

39. That having been said, and as I have stated it is a procedural matter and needs to be addressed by the Registrar, having perused the material including the Affidavits, the submissions, it appears to me that there are in the matters put before the Court serious questions, issues and disputes about the law –
    
40. 162.-(1) In considering what order (if any) should be made under section 161 in proceedings with respect to any property of the parties to a marriage or either of them, the court must take into account-
    • (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of the last-mentioned property, whether or not the last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
      
    • (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
      
    • (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.
      
    • (d) the eligibility of either party for a pension, allowance or benefit under-
      
      • (i) any law of the Fiji Islands or of another country; or
        
      • (ii) any superannuation funds or scheme, whether the fund or scheme was established, or operates, within or outside the Fiji Islands.

2. For the purposes of subsection (1) the contribution of the parties to a marriage is presumed to be equal, but the presumption may be rebutted if a court considers a finding of equal contribution is on the facts of the case repugnant to justice, (for example as a marriage of short duration.)

41. The court must also take into account-
    • (a) the age and state of health of the parties;
      

(b) the income, property and financial resources, including any interest in inalienable property, of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

(c) whether either party has the care and control of a child of the marriage who has not attained the age of 18 years;

(d) the commitments of each of the parties that are necessary to enable the party to support-

• (i). himself or herself; and
• (ii). a child or another person that the party has a legal or customary duty to support.
  

(e) a standard of living that in all circumstances is reasonable;

(f) the financial resources available to a person if cohabiting with another person;

(g) the duration of the marriage;

(h) the terms of any order for spousal or child maintenance made in favor of or against a party;

(i) any other fact or circumstances which, in the opinion of the court, the justice of the case requires to be taken into account.

42. As discuss above, section 162(1) set out in sub-sections (a), (b), (c) and (d) the fourfold contributions the court must take into account, in making an order with respect to "any property of the parties to a marriage". Sub-section (a) provides that a financial contribution made directly or indirectly to the acquisition, conservation or improvement of the property is to be taken in into account. Sub-section (b), the non-financial contribution to the improvement of the property. The contribution made to the welfare of the family has to be considered by sub-section (c). This is an elusive concept with wide import. Finally, sub-sections (d) require the eligibility of either party for a pension, allowance or benefit under any superannuation fund to be considered.
    
43. Taking all this into account, in my opinion, I find that there is a serious issue to be tried that serious issue meets both the American Cyanamid test and the Mareva injunction test ( is applicable whle which, as I have said.
    
44. The Applicant man iserned that given that his Form 9 application has been filedfiled with the Court that the Respondent lady may try to sell the property without his knowledge and contribution to the sale. The Applicant man believes that he has an interest in this matrimonial property as he submitted that has contributed directly and indirectly towards the maintenance and upkeep of the matrimonial property. Hence, my answer on the first leg of the test set in American Cyanamid (which I consider to be the applicable standard/test) is ‘yes’ and also it is not very complicated for me to determine that the subjected property could consider as a matrimonial property.

DAMAGES AND BALANCE OF CONVENIENCE

45. In Manitoba (AG) v Metropolitan Stores Ltd (1987) CanLII 79 (SCC); [1987] 1 SCR 110; (1987) 38 DLR (4th) 321; [1987] 3 WWE 1; [1987] 25 Admin LR 20; http://www.canlii.org/en/ca/scc/doc/1987/1987canlii79/1987canlii79.html the Supreme Court said:

“The second test [as to damages] consists in deciding whether the litigant who seeks the interlocutory injunction injunctjunction is granted, suffer irreparable harm, that is harm not susceptible or difficult to be compensated in damages. Some judges consider at the same time the sitn of the other party to theo the litigation and ask themselves whether the granting of the interlocutory injunction would cause irreparable harm to this other party if the main action fails. Other judges take the view that this last aspect rather forms part of the balance of convenience: Para [35], at 14

46. In Canada, the damages test has been elaborated on in a way that is useful for the purposes of the present case.
    
47. Going on to look at that third test set by Cyanamid the Court said:

The third test, called the balance of convenience and which ought perhaps to be called more appropriately the balance of inconvenience, is a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits: Para [36], at 14”

48. I am persuaded that it is appropriate in the present case to look at the question of damages and that of balance of convenience as interlinked.
    
49. The Applicant’s motion for injunctions should fail because the undertaking as to damages is absent or inadequate or insufficient. In Sharma v. Akhil Holdings Ltd [2006] FJHC 82; HBC155.2002l (15 December 2006), the Court referred to this issue by reference to Natural Waters of Viti Ltd v. Crystal Clear Mineral Waters (FIJI) Ltd CABU0011/a of 2004S (26 November 2004); and Air Pacific Ltd v. Air Fiji Ltd [2006] FJCA 63; ABU0066U.2006S (10 November 2006). In Air Pacific the Court of Appeal said it did not need to consider the question of sufficiency of damages because the interim injunction was set aside by reference to the first leg of American Cyanamid – namely the failure to establish that there was as serious issue to bed. However, the Court of Appeal reiterated ‘as an important point of practice’ 217; that where a party ‘gives an undertaking to pay damages, there must be adequate information to allow an assessment of the worth of the undertaking. This Court laid that down in Natural Waters of Viti Ltd v. Crystal Clear Mineral Waters (Fiji) Ltd ...’: at 9
    
50. It is, however, important to observe that in Natural Waters of Viti the Court of Appeal said this:

‘In our view there was plainly a serious issue to be tried. The potential for damage to the Appellants operation was palpable. While both parties offered undertakings in damages, neither placed sufficient material before the court to fortify those undertakings. At the same time, we see no reason to disagree with the Judge’s finding that the Respondent was a ‘minnow’ by comparison with the Appellant. In those circumstances, we are satisfied that there was a real danger to the Appellant of irrecoverable damage being incurred as a result of the Respondent’s use of get up No. 3 and its prominent use of the word ‘Fiji’. Applicants for interim injunctions who offer an undertaks g as to damages should always proffer sufficient evidence of their financial position. The court needs this information in order to assess the balance of convenience and whether damages woulan adequate remedy’’

51. Or there has to be a ‘good arguable case’, ‘a reasonably arguable case’, ‘a serious question to be tried’, ‘a prima facie case’ or a ‘good arguable case’: Briscoe, Mareva and Anton Pillar Orders, 2007 as discussed.
    
52. As submitted; the Applicant man without prejudice discussions had agreed to the sale of the property only but had expected that he would be kept involved. He was only alerted to the sale when the Lands Department personal attended to the property.Iit was only after the court granted the interim injunction and the Respondent Ms SP had filed her affidavit in response it became very obvious that there is a real risk of the property being sold without any consideration of the Applicant’s position: The Respondent also has already accepted an offer of sale for $600,000. The Applicant further submitted that the Property is in Nasese in an affluent neighbourhood and the sale of the property at $600,000.00 is nothing short of a rip off. The property should be valued by the professional valuer appointed by the Court (Registrar) property if sold it must not be sold below the current market value. That the balance of convenience requires the making of the Order”.In this matter; I am of the view that it is imprudent and impractical to order a party or may be both the parties given the difficulty before this court to conclude current market value at this stage of the proceedings without a valuation to determine the quantum or amount of the damages to be deposited to the registry.
    
53. In conclusion the Applicant submits that the Affidavit of the Applicant lady, failed to address the principles of the Mareva injunction and therefore, seeks Court, should maintain the current interim injunction orders to protect the interest of the Applicant man in the Property and seeks the extension of the interim injunction Orders granted on 07 November 2016.
    
54. As noted, there is no any undertaking from the applicant to cater any such damages.And as discussed it is not feasible at this juncture of the matter. Should this court go with the facts before it; it would be $30000.00 to be paid by a party considering the offer. But I understand that either party is not in a position to deposit such an amount before the sale of the property.
    
55. Also as noted, there is, a failure to furnish evidence of applicant’s ‘proffer sufficient evidence of his financial position’ was not in the end determinate of whether or not an injunction should be granted.
    
56. In the present case, I look to the position of all the parties. It is not difficult to see that the Respondent will suffer financial loss if the injunction is extended. But; there is more risk to the Applicant should the Responded proceeded with the sale of the property before finalization of Form 9.
    
57. It may be that the injunctions sought would mean that the injunction to be extended until the Property matter resolved. Ordinarily is the case; however it is difficult to say the duration of time that this case would take to depose off, but even this would seem to go to timing. As the Court (with the expected cooperation of the parties) will work to ensure that this period is as short as possible, with the substantive proceeding being dealt with as expeditiously as possible, this will reduce any difficulty.
    
58. The court is not aware whether the respondent wishes to have an opportunity to engage in discussion or dialogue of a productive nature with the applicant in respect to the pending matter in particular; the property contribution matter for a settlement. However, what is also clear is that the Applicant’s position of his fears that the respondent might sale the property without his knowledge before the distribution by the Court.But now, as there is a court matter and if the respondent is intend to sale the subjected property to defeat the applicant’s application; the respondent is answerable to the court. As a party cannot take law into his or her hand.
    
59. In conclusion (after referring to the ‘serious question to be tried’ aspect, and this reference to ‘balance of convenience’) I must say that the ‘overall justice of the case demands’ that the Court, in this juncture, should ‘extend the interim injunction.

CONCLUSION

1. I therefore consider that, having taken into accountthe material including the the affidavits and the written submissions, and the matters put in the substantive proceeding, the injunction should be extended until further orders by this court.
   
2. At the same time, it is important that the substantive proceeding should be called on for hearing as soon as practicable.
   
3. The matter is already listed for mention before the Registrar for conclusion of CAC-C and PH, when the matter is ready for hearing or for any other relevant orders a mention date before the court shall be set down preferably after receiving of the valuation report.
   
4. I would like to emphasis that the Court would take whatever steps are necessary to ensure progress of the substantive proceedings as swiftly as possible to minimise impact of any injunction/s and call upon the cooperation of the parties as noted.
   
5. Parties to bear their own costs.
   

30 days to appeal.

LAKSHIKA FERNANDO

RESIDENT MAGISTRATE

On this 13^th day of March, 2017