Khell Services Ltd v Soong et Al

• Jurisdiction: Trinidad & Tobago
• Judge: Lucky, J.
• Judgment Date: 21 November 1991
• Neutral Citation: TT 1991 HC 219
• Docket Number: 1351 of 1991
• Court: High Court (Trinidad and Tobago)
• Date: 21 November 1991

High Court

Lucky, J.

1351 of 1991

Khell Services Ltd

and

Soong et al

Appearances:

For the plaintiff: Mr. E. Koylass

For the defendants: Mr. W. Kangaloo and Mr. P. Jamadhar

Injunction - Discharge — Injunction restraining defendants from damaging boundary wall of plaintiff's shop and assaulting, threatening and beating plaintiff or its agents while repairing wall and from trespassing on plaintiff's shop space — Discharge of injunction granted on grounds that there was a material non-disclosure/misrepresentation and/or suppression of material facts by the plaintiff.

Lucky, J.

1 On 12th November 1991, the plaintiff, Knell Services Limited, was granted an ex-parte Injunction restraining the defendants firstly, from breaking down and doing any further damage to the southern boundary wall of the plaintiff's Shop, No. F29B, Southland Mall; and, assaulting, threatening and beating the plaintiff, its servants and agents while in the course of restoring, repairing or fixing the southern boundary wall of the plaintiff's shop-space or otherwise and/or preventing the plaintiff, its workmen and its agents from restoring the said wall; and secondly, from trespassing, entering, crossing and passing upon the plaintiff's shop-space measuring 5,518 square feet which said space is bounded by the northern wall of the defendant's tenanted space at the Southland Shopping Mall.

2 By Summons dated 15th November 1991; the defendants seek an order that the Ex-parte Injunction granted against them be discharged and/or varied on two (2) grounds. Firstly, that there was material non-disclosure and/or misrepresentation and/or suppression of material facts on the part of the plaintiff in obtaining the said injunction; and secondly, that there are cogent reasons for so discharging and/or varying the said injunction.

3 The following cases were cited:

• (i) Boyce v. Gill (1891) 64 L.T. 824

• (ii) R. v. Kensington Income Tax Commissioners [1917] 1 K.B. 154

• (iii) Sadophal v. Paul (1961) 3 W.I.R. p. 340

• (iv) Parbal v. Jurawan H.C.A. M-353 of 1978

• (v) The Scott Land and Investment Co. Ltd. v. Iris Edwards H.C.A. 1165 of 1971

• (vi) Remkrise Manogeesingh v. Airports Authority of Trinidad and Tobago, C.A. No. 86 of 1984

• (vii) London City Agency Ltd. v. Lee and Ors. [1969] 3 All E.R. p. 1375

• (viii) American Cyanamid Co. Ltd v. Ethicon Ltd. [1975] 1 All E.R. p. 504

• (ix) Adanac Industries Ltd. v. Black (1962) 5 W.I.R. p. 233

THE EVIDENCE:

4 The evidence consists of several affidavits. On behalf of the plaintiff; the affidavit of Joseph Anthony Khell. Appended to this affidavit there are three documents — a copy of the agreement to enter into a lease with Southland Mall — a copy of a bill for the area rented to the plaintiff and a copy of the floor plan of the area rented to the plaintiff.

5 The evidence on behalf of the defendants consists of three affidavits to which there are several exhibits. The first is that of Kenneth Chin Sang, the Manager of Southland Mall. The exhibits appended to this affidavit are KCS.1, a copy of the formal lease agreement which all tenants execute. KCS. 2 a letter, dated 13th November 1991 written to the plaintiff by Mr. Chin Sang advising him that the hallway leading to the fire escape is a common area; KCS.3 which is the reply to the letter of 13th November 1991 in which the plaintiff denies that the area is a common area and that the staircase as a fire escape; KCS.4 is a floor plan of the upper level of the hall. The second affidavit is that of the first defendant, Kelvin Johnny Song, appended to this affidavit there are two (2) exhibits. KJS.1 is a copy of a letter from the Mall Manager dated 1st June; 1991 offering to lease space to the defendants; and KJS.2 which comprises a bundle of documents including a special Restaurant licence and a Floor Plan. The third affidavit is an affidavit of Johnny Song which is supplemental to the one filed on 15th November 1991, appended to the affidavit is a letter dated 14th November 1991 to the Chief Fire Officer one the Chief Fire Officer's response. By consent the original floor plan was put in evidence as Exhibit 1.

THE SUBMISSIONS

6 Learned attorney for the defendants, submits that in his affidavit the plaintiff did not disclose that the staircase shown in his plan JAK.3 is a fire exit; and, by blocking the wall, he was preventing access to the fire escape to the premises which is known as “The Club”. He contends that the plaintiff ought to have tendered a copy of the formal lease referred to in his letter of the 14th March 1991; exhibit JAK.1. He opines that the plaintiff, Khell, knew that the area in dispute was being used as access to the fire escape by the Club but he did not disclose this fact. Further, he misrepresented to the court the fact that he intended to carry on a business of a cake shop and not cake decorating service.

7 He argues that there are cogent reasons to discharge the injunction, moreso if the court applies the principles of the balance of convenience. Learned attorney cited several authorities in support of his contention. He submits that applying the balance of convenience; the conjunction ought to be discontinued. The court also has to consider the fact that damages will be an adequate remedy.

8 Attorney for the plaintiff contend, that the floor plan describes the staircase as a staircase and not as fire exit, and in those circumstances the plaintiff in no way misled, mis-represented or did not disclose facts to the court. In his response to attorney for the defence's submissions, attorney for the plaintiff began by indicating that this matter is a matter of trespass. He said that the area includes the staircase referred to and further that the only area where there is no common area shown on the plan, is the area which is in dispute. He said, even using the access given to Mr. Khell, that access must be the staircase which is shown on the plan and Mr. Chin Sang gave the impression that the staircase can he used by anyone, but this is not so.

9 In order to gain access to the staircase from the Club persons must trespass upon the area leased to Mr. Khell. See paragraph 5 and 6 of Mr. Chin Sang's affidavit which read:

• “5. Prior to the commencement of the tenancy by the defendants aforesaid there was a plywood partition as a temporary structure separating the area tenanted by the plaintiff from the area to the South of it which was then vacant but which was intended to be rented to the defendants and which area the defendants now occupy. Prior to the commencement of the...