v
NANCY CROOK &
ON MAMALONI
High Court of Solomon Islands
efore: Lungole-Awich, J
J
Civil Case No. 66 of 1998
Counsel: Sol-Law for the plaintiffs;
Bridge Lawyers for ther the defendants
class="Mso="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
JUDGMENT
(LUNGOLE-AWICH,
J):
The Application: The applicants, the plaintiffs, applied by Notice of
Motion for interlocutory orders which, for the purpose of this ruling,
I may
state simply as order restraining the defendants from carrying on the
business known as Club 88 or doing anything
leading to the defendants
carrying on the business. The application was listed as an urgent one, but
learned solicitors
for the applicants, rightly, in my view, thought it not
one to be brought ex parte.
Application for Interim Injunction
At the hearing today, parties agreed to have the matter ader adjourned for 7 days
until Thursday 30.4.98, to enable the respondents/defendants
to file
affidavits to support their opposition to the application. They agreed to
time for filing affidavits and that
costs of today be in the cause. The
court approved the consent orders. Although the applicants were prepared to
give
undertaking as to damages during the period of adjournment, the
respondents refused to give undertaking that during the 7 days
they will not
carry on the business or do anything inconsistent with the claim of the
applicants that they are the owners
of the business and not the
respondents/defendants. So parties have therefore asked the court to
determine whether interim
injunction is to issue restraining the respondents
during the 7 days adjournment.
The Status Quo to be Preserved
<
The business of Club 88 is said to be that of a club where gaming is carried
on. Not much has been said about what is
on the ground as at the time of the
application. It is not clear from the affidavits, who holds, as of fact, the
keys
for the building of the club where its business are supposed to be
carried on and whether or not any business activities are
currently taking
place. It is, however, stated that the respondents/defendants have obtained
gaming licence for Club
88 business and are arranging to commence gaming
business. Nothing is said about business activities of the Club that the
applicants are currently engaged in. The difficulty that arises is that the
court is unable to say what the status quo to be preserved in
the 7 days and beyond is. Interim or interlocutory injunction is to keep
matters in status quo, not to place one of the parties in
disadvantage, although that often is the consequence.
[1975] AC 397 and John Wesley
Talasasa v Attorney General and others HC CC 35 of 1995. The
applicants/plaintiffs claim having acquired, by purchase, the business known
as Club 88, and on
the other hand the respondents/defendants claim that they
have remained the proprietors or the proprietors of up to 70% of
the
business. Learned counsel Mr. J Sullivan, for the applicants, is right in
his submission that the questions as to
serious issue and balance of
convenience do not depend on whether the application is brought ex
parte or inter partes. That submission was in reply to
suggestion by learned counsel Mr. Nori, for the respondents, that if the
applicant had
come ex parte, the evidence they have made
available in affidavit may have been sufficient to establish a serious case.
As the application
is inter partes and adjournment has been
agreed, Mr. Nori said, the respondents� case will have to wait for the
evidence for the respondents
so that it is weighed against that of the
applicants so as to decide whether there is serious issue in the case. I
think
in this case the determinant question is the loss expected if the
interim injunction is not granted and the balance of convenience
attendant.
The Loss Expected
Mr. Sullivan says that one item of loss would be the proceeds of cash bets
ets
expected if the business opens. Some of
it, he says, may be unaccounted for.
He further says that the other loss would be that the respondents may incur
business
liabilities in the mean time and the business, Club 88, may in
future have to discharge the liabilities. As far as the proceeds
of bets are
concerned, the other side of it would be no proceeds at all to lose if the
business is not carried on. Whatever
proceeds that would be collected,
however little, would be gain and better than no proceeds at all if the
business is
not carried on. If cash were to be collected in the business, I
think difficult as it may be to control cash business, measures
could be
imposed in the carrying on of the business to ensure that proceeds are
protected. The question of liabilities
would be a strong one in favour of
granting interim injunction, but the court does not have enough evidence
about, such
as their nature and extent and in fact whether any are likely to
be incurred. On the other hand there may be liabilities arising
in the
arrangements already made by the defendants for equipment and other things.
The other factor which I think shoultaken into account is that that licence
has already been granted to the respondents/defendants,
though the
applicants say wrongly. There has been no information about the conditions
upon which the licence was granted.
It was up to the applicants to say
something about the licence, they should have explained why the licence
should not
be utilised. This, however, would be consideration relevant
merely in the exercise of discretion, had the case for injunction
been
sufficiently made out.
Application Dismissed
It is for an applicant for interim injunction order to available
sufficient ient information upon which the court will
feel confident to grant the
application, see R v Kensington Income Tax Commissioner [1917] 1 KB
504. It is for the applicant in a case such as this one where application
for injunction is adjourned to enable the respondents
to file affidavit
evidence, to make out a case of urgency for interim injunction during the
period of adjournment. In
my view there has not been adequate information
for the court to act upon confidently, and an urgent case for interim
injunction has not been made. I refuse the application for interim
injunction order. Hearing of the main case is adjourned
to 30.4.1998.
Costs are reserved.
Deed this 23rd day of April 1998
Sam Lungole-Awich
br>
JUDGE
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