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Attorney-General v Fang [2007] SBHC 119; HCSI-CC 210 of 2006 (2 March 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 210 of 2006

THE ATTORNEY-GENERAL

V

JAMES FANG AND FANGS COMPANY LIMITED

(Palmer CJ.)

Date of Hearing: 3rd October 2006
Date of Judgment: 2nd March 2007

R. Ziza for the Plaintiff
C. Ashley for the Defendants

Palmer CJ.: The Defendants, James Fang and Fangs Company Ltd ("Fang") seek orders to have the interim orders imposed by this court on 2nd June 2006 and 6th July 2006 to be set aside or be stayed until further orders of the court.

On 17th August 2006, Fang was convicted of contempt of those court orders and fined $10,000.00 on 6th September 2006.

This case had been commenced by the Attorney-General on behalf of the Town and Country Planning Board ("the Board") of the Honiara City Council to prevent Fang from rebuilding on his property in Lot 286 at China Town that had been severely damaged by fire on 25 April 2006 during the April riots. The property had been completely gutted by fire and burnt to the ground save for the concrete structures of the building. Fang had begun reconstruction work on the site shortly after the destruction and the Board was concerned that the public may be endangered by the reconstruction work without proper approval obtained from the Board as to the safety of any reconstruction work. It issued an "Enforcement Notice" on 10th May 2006 to stop all activity on the site, have the burnt building structures demolished and submit redevelopment plans to the Board for its consideration and approval. Most of the buildings at China town have had their burnt out buildings completely pulled down and cleared out.

The Board was concerned that the foundations of the building had been weakened by fire and that the brick and concrete which formed part of those foundations had lost its internal moisture by reason of the fire and become dry and brittle. If that was the case, the bond between concrete and steel in the reinforced concrete would no longer exist by reason of the fire and that the reconstructed building is liable to collapse.

Fang now comes to court to have the restraining orders discharged. Grounds relied on can be summarised as follows.

(i) That Fang had paid $6,700.00 to the Plaintiff for a building permit to start rebuilding on their Chinatown property.
(ii) That to allow the injunction to continue will only cause irreparable harm to Fang.
(iii) No undertaking for damages had been given by the Plaintiff.
(iv) Fang had engaged qualified professional engineers to assess the structures of their Chinatown buildings and had applied to the Plaintiff for a temporary building permit which the Plaintiff refused to grant and had then filed appeal to the Minister but which is pending because of the injunctive orders.
(v) When the "Enforcement Stop Notice" was issued, an appeal was filed in the Central Magistrates Court and is still pending because of these proceedings in the High Court.

Triable Issues

The first issue for consideration before this court is whether there are triable issues for determination. I am satisfied the material before this court shows that there are triable issues for determination. The question of whether or not the reconstructed buildings are safe for the use of the public after the devastating fire of the April riots is a live issue as far as this case goes and the question whether this amounts to a public nuisance can only be determined at trial. This is not the time to argue whether a public nuisance had been committed by the actions of Fang in rebuilding and reconstruction work on the property and whether they are safe or not.

Are damages an adequate remedy?

The second issue for consideration is whether damages are adequate if at the end of the day the Board wins its case? At this point of time, it has not been shown to my satisfaction that damages will not be an adequate remedy. It has not been shown that Fang is not in a position to compensate the Board in the event he losses his case and is required to demolish his buildings. In such circumstances normally it would not be proper to allow the interim orders as against Fang to continue. If at the end of the day, Fang should lose his case, there is no material to suggest that he will not be in a position to compensate the Board for any losses incurred.

Undertaking for damages.

Another important consideration to bear in mind is the question whether an undertaking for damages had been issued. At this point of time no undertaking for damages had been given by the Board. Normally no injunction would be issued unless an undertaking for damages is issued. In this instance, if Fang should win his case, there is no guarantee that he can be compensated for any losses that he may incur. In such situation, the injunction should not be allowed to continue.

Alternative relief available.

There are two pending appeals which are yet to be heard; one before the Minister responsible under section 19 of the Town and Country Planning Act ("the Act") [cap. 154] and the other before the Magistrate’s Court under section 23(1) of the Act. Whilst there is no impediment to those appeals from being heard, this action should not be used as a means by which those appeals are prevented from being heard. Where this action becomes a hindrance, it must be stayed pending determination of those matters which in reality will be addressing it seems the very same matters that are now for consideration before this court.

In the circumstances of this case, where alternative relief is available by way of appeal process, there is no longer justification for it to continue. Also it is my respectful view that is sufficient reason for this action to be stayed pending determination of those appeals.

Orders of the Court:

1. The orders of the 2nd June and 6th July 2006 are discharged forthwith.
   
2. That this action is stayed pending determination of the issues in the appeal before the Minister and the Magistrates Court.
   
3. I make no order for costs.
   

The Court.