[1987] LRC (Comm) 463

IN THE SUPREME COURT OF TONGA

MATAELE

V

FULILANGI

Supreme Court:
Tupou, J
21st February 1986

(1) Remedies - Interlocutory injunction Application of Cyanamid principles - Whether serious question to be tried - Whether balance of convenience in favour of grant or refusal of injunction - Whether damages adequate compensation.

(2) Remedies - Injunction - Whether contract for personal services - Whether injunction an appropriate remedy.

The plaintiff, a boxing promoter, sought an interlocutory injunction to restrain the defendant, a boxer, from fighting the heavyweight champion of New South Wales. The basis of the application was that the defendant had entered into an agreement with the plaintiff, whereby the plaintiff was to act as his sole promoter. It was alleged that the defendant had cancelled fights arranged by the plaintiff and as a result the plaintiff had instituted an action to recover losses he had suffered thereby. The present injunction was sought pending the hearing of that action.

HELD: Application dismissed.

(1) The plaintiff had failed to establish that the case was an appropriate for the grant of an interlocutory injunction. Although he had shown that there was a serious question to be tried (see p. 465 post), the balance of convenience lay in not granting the injunction. The plaintiff would be adequately compensated by an award of damages. On the other hand, since the defendant was scheduled to fight the heavyweight champion of New South Wales and had a chance, if successful, then to fight the heavyweight champion of Australia, who had a world ranking, and would thereby enhance his career, he could not be adequately compensated for this lost opportunity, through grant of the injunction, by an undertaking as to damages from the plaintiff. (See pp. 465-466 post.)

(2) Obiter: An injunction would not be granted to enforce negative covenants which would be tantamount to ordering specific performance of a contract for personal services. The plaintiff's contract with the defendant was one for personal services as promoter, and not merely one for the payment of remuneration. (See p. 467 post.) Page One Records Ltd v Britton and Others (Trading as "The Troggs") [1967] 3 All ER 822 applied; Lumley v Wagner (1852) 1 De GM & G 604 distinguished.

Cases referred to in judgment:
American Cyanamid Co v Ethicon Ltd [1975] AC 396, [1975] 2 WLR 316, [1975] 1 All ER 504, HL
Lumley v Wagner (1852) 1 De GM & G 604, 42 ER 687
Page One Records Ltd v Britton and Others (Trading as "The Troggs") [1968] 1 WLR 157, [1967] 3 All ER 822

No legislation referred to in judgment

Application
The plaintiff sought an interlocutory injunction to restrain the defendant from taking part in a boxing match. The facts are set out in the judgment.

21st February 1986

TUPOU, J.:

This is an application by the plaintiff for an interlocutory injunction to -

(1) restrain the defendant from fighting Schmidt or any boxer on the 15th February 1986 and subsequent dates whilst he is in breach of his contract with the plaintiff, and

(2) restrain the defendant, his servants or agents from publishing a notice or notices of any intended boxing engagements pending the hearing of this application.

In support of his application the plaintiff has relied on the grounds set out in his statement of claim, together with supporting affidavits. In essence the plaintiff claims that on or about the 26th October 1985 he concluded an agreement with the defendant whereby he, the plaintiff, would act as sole promoter for the defendant and carry out all other services that would be pertinent to the services of a promoter of a boxer. In return the defendant agreed to fight in all the boxing engagements obtained for him in Tonga by the plaintiff. It is alleged that on or about the 16th January 1986 the defendant, in breach of his agreement with the plaintiff, cancelled his boxing engagements arranged by the plaintiff for the e 1st and 21st February 1986 and has instead arranged to fight one called Schmidt at Nuku'alofa on the 15th February 1986. The plaintiff, therefore, claims for the recovery of all monetary losses he has incurred for work done and money spent in carrying out his work as promoter pursuant to the agreement with the defendant and also punitive damages. The plaintiff now applies for an interlocutory injunction pending the hearing of his claim.

Before the court can consider whether or not to grant an injunction there are certain principles of law which must be looked at.

First, the Court must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried: American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 at p. 510. Unless the materials available to the court at the hearing of the application for an interlocutory injunction fail to disclose that the plaintiff has any real prospect of succeeding in his claim at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.

In considering the balance of convenience, the governing principle is whether the plaintiff would be adequately compensated by an award of damages which the defendant would be in a financial position to pay, and if so, the interlocutory injunction should normally not be granted, but if not, the court should then consider whether the defendant would be adequately compensated by the plaintiff's undertaking as to damages which the plaintiff would be in a financial position to pay, and if so, the interlocutory injunction should normally be granted. Where there is doubt as to the adequacy of the respective remedies in damages available to either party the court would lean to such measures as are calculated to preserve the status quo.

Counsel for the defendant submitted that the claim of the plaintiff was frivolous and vexatious in that, looking at the case as a whole on the papers presently before the court, the claim was based on a contract which did not comply with section 5 of the Contract Act and was, therefore, not maintainable by virtue of that section. In this instant, the term "frivolous or vexatious" should be read in the light of the obiter dictum of Lord Diplock in the American Cyanamid case (supra) as meaning that there is a serious question to be tried and that the plaintiff has a real prospect of succeeding. The submission by counsel for the defendant with regard to the non-compliance with section 5 of the Contract Act involves a question of law and fact which would be more appropriately argued at the trial. Suffice it is for me to say at this stage that I am of the opinion, based on pleadings and affidavits so far filed, that there is a serious question to be tried.

The next question to be considered is whether the plaintiff would be adequately compensated by an award of damages for the loss he would d have sustained as a result of the defendant's continuing to do what was sought to be enjoined between the time of the application and the time of the trial and the defendant would be in a financial position to pay such damages.

Looking at the prayers in the statement of claim we find that paragraphs (a) to (e) inclusive seek payment of specific amounts from the defendant in respect of moneys given or paid out by the plaintiff for work done by him. Paragraph (f) claims the sum of $15,000 as punitive damages for the wrong done to the plaintiff by the defendant. The remaining prayers are in respect of what is sought in this application together with costs.

I have come to the conclusion that the plaintiff would be adequately compensated by an award of damages for the losses he has claimed. Furthermore, the loss, if any, he would have sustained as the result of the defendant's continuing to do what was sought to be enjoined would be adequately compensated by an award of damages and may, indeed, be included in the punitive damages sought in the statement of claim. The defendant would be in a better financial position to pay for these damages, should the plaintiff succeed in his action, if he was not prevented from continuing his profession, namely that of a professional boxer.

On the other hand, I note from the affidavit of the defendant that he is scheduled to fight the heavyweight champion of New South Wales on the 28th February. Should he be successful in this fight then he has a chance to fight the heavyweight champion of Australia who is rated No. 9 in the World Boxing Association ranking. These fights have already been arranged and would be cancelled if the injunction sought is granted. The question is then asked, would an undertaking by the plaintiff to pay damages for the loss that would be suffered by the defendant from the cancellation of these bouts be adequate to compensate the defendant for his losses? Money can certainly be offered to compensate for the purse that may go to the defendant as winner or loser of the first fight. His chance to fight the No. 9 world rank boxer and thus his opportunity to further his career would be stultified because he has not fought the first and qualifying fight which he had to win. Can this loss opportunity be adequately compensated by an undertaking for damages from the plaintiff? I am of the opinion that it cannot. Even if it could, I feel obliged to retain the status quo of the position of the parties at the date of this application which is that they have lost confidence in each other and are not working together.

I am, therefore, of the opinion that the balance of convenience lies with the injunction not being granted.

Although this is sufficient to dispose of this application, in deference to both counsel and to their arguments with regard to a contract for personal services I would add the following.

It is accepted that an injunction will not be granted to enforce negative covenants which would be tantamount to ordering specific performance of a contract for personal services. The leading authority on this is Page One Records Ltd v Britton and Others (Trading as "The Troggs") [1967] 3 All ER 822, where it was held that an interlocutory injunction would compel in effect "the Troggs" to continue to employ the first plaintiff, and thus would amount to enforcing the performance by the first plaintiff of a contract for personal services, that is to say, a contract for rendering management services of a personal and fiduciary character, the totality of obligations under which almost amounted to a partnership or joint venture; accordingly the interlocutory injunction would be refused.

Counsel for the defendant submitted that, as sole promoter, the plaintiff is in the same position as that of the plaintiff in The Troggs case; that as such, his contract with the defendant is one for his personal services and that it falls within the principles of The Troggs case and, accordingly, the interlocutory injunction should be refused. Counsel for the plaintiff, on the other hand, submitted that The Troggs case was distinguishable from the present case in that the plaintiff in that case was appointed as manager who would perform different functions from those applicable to a promoter. He further urges that the case of Lumley v Wagner [1843-60] All ER Rep 368 is more in line with the present case.

I should mention here that the Wagner case was referred to and distinguished in The Troggs case in this respect. The Wagner case required the German singer to perform only in one theatre for which she was to get paid by the plaintiff. In breach of that agreement and for more remuneration the singer wanted to perform in other theatres. The plaintiff applied for an injunction to prevent the singer from performing in other theatres and the injunction was granted. The basis of distinction with The Troggs case was that the only obligation on the part of the plaintiffs seeking to enforce the negative stipulation in the Wagner case was an obligation to pay remuneration and an obligation which could clearly be enforced by the defendant. In The Troggs case the obligations of the plaintiffs involved personal services which could not be enforced by The Troggs.

In the present case the plaintiff claims to be the sole promoter by agreement of the defendant boxer. As such his function is that of a personal service albeit as a promoter rather than as a manager. Nevertheless it is his personal services which he has agreed to give to the defendant. It is not merely for the payment of money or remuneration as in the Wagner case. I come to the conclusion that the present case, as far as it involves personal services and the principles applicable thereto, is the same as The Troggs case. Therefore on this ground also I am unable to grant the injunction requested as it would be tantamount to ordering the specific performance of a contract for personal services.

The plaintiff's application for an interlocutory injunction is accordingly dismissed and I award the defendant's costs in the cause.