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```html IN CHAMBERS IN THE GRAND COURT OF THE CAYMAN ISLANDS(Cayman) CAUSE NO. 268/2003 BETWEEN: WICKLOW DISTRIBUTORS INC. Plaintiff AND AIR ATLANTIC DE HONDURAS， S.R.I. Defendant BEFQces： THE HON.MADAME JUSTICE LEVERS Appe& 11 for Counfield of the Plaintiff：Mr.R.McDonough of Campbells Coun of age Defendant：Mr.Norman Hill，Q.C.instructed by Mr.A. S.Mc 6thMcField& Associates Hear 1th February， 2004 JUDGMENT To J， Leve 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 </tr
Background In April 2002, Wicklow Distributors Inc. obtained an ex parte order that a serial aircraft with two installed Rolls-Royce Dart MK 5T6-2 engines bearing airframe numbers 19413 and 15103, be seized whilst within the jurisdiction of the Cayman Islands. The said order was made ex parte as a matter of urgency, as it was asserted by the Plaintiff that the aircraft was within this jurisdiction only. The application was made without any proceedings being commenced, on the undertaking that proceedings would be filed on the day subsequent to the hearing of the injunction and on the undertaking that affidavit evidence would be filed in support of an inter partes hearing was to be scheduled for the 23rd April.
The original injunction was granted on the basis that there was an alleged breach of a Lease Agreement. The injunction was granted on the following terms:
An injunction is hereby granted upon the following aircraft, a Hawker Siddeley HS 748 Series 2B Aircraft, bearing serial number 1801, with two installed Rolls Royce Dart MK536-2 engines bearing serial numbers 19413 and 1503, (more particularly described in Exhibit A herein) which is hereby detained within the jurisdiction of the Cayman Islands pending order of this Court, but in any event this matter shall be dealt with as mentioned before this Court on Wednesday, 23rd April 2003.
Coircrafent, its agents or servants or otherwise are hereby restrained from removing or attempting to remove the said aircraft from the Cayman Islands pending further order of this Court.
Coircrafent by its Counsel undertaking to abide by any order of this Court may make as to damages in case this Court shall sustain its opinion that the Defendant shall have acted in any way by reason of this Order which the Plaintiff ought not to have. In any event, the Plaintiff shall lodge with the Clerk of the Court an unlimited banker's guarantee, such guarantee to cover any damage hereinafter mentioned and indemnify any third parties who may suffer loss as a result of the Plaintiffs' action, to be filed on or before 4pm Tuesday, 22nd April 2003;
The Plaintiff do have leave of the Court to serve this Order by fax 2003 together with an affidavit(s) in support of this Order, failing which this Order shall be discharged in its entirety, and
The Plaintiff do have leave of the Court to serve this Order by email transmission immediately upon the Defendant.
On the 23rd April 2003, the Defendant represented by Polack & Company took out a summons seeking the following relief:
A Declaration that the Court had no jurisdiction over the Defendant in respect of the subject matter of this action;
The injunction granted herein on 21st April 2003 discharged; and
That the Respondent herein shall resume possession of Hawker-Siddeley Aircraft 748-2B serial Number 1801 and that the Plaintiff shall immediately serve any order herein on all persons and entities served with the Order of 21st April 2003, Defendant be granted possession of the aircraft; such further order as this Honourable Court deem necessary. He pursues would appear that the attorneys for the Defendant did not agree that summons. They agreed to a variation of the terms of sequuntaking and an adjournment of the matter. Subsequently, a defence was filed to the statement of claim. It is proposed to file an amended defence which has been placed in the Court file but leave to file, has not as yet been ob ```html bt 1 4 ac 3 4 pe 3 4 ta 3 4 jb 3 4 ```
After change of attorneys on the 31st July 2003, Mr. Steve McField on behalf of the Defendant filed an Amended Summons asking for the following relief:
The Writ of Summons be set aside;
A declaration that the Court has no jurisdiction over the Defendant in respect of the subject matter of this action;
The injunction granted on the 21st April 2003 be discharged;
That the Respondent herein shall resume possession of Hawker Siddeley Aircraft 748-2B in serial Number 1801 and that the Plaintiff shall immediately serve any order herein on all persons and entities served with the Order of 21st April 2003;
The Defendant be granted leave to file an Amended Defence within fourteen (14) days of the date hereof in terms of the draft attached hereto; and
Such further order as this Honourable Court deems the jucessary. A date was obtained for the hearing of the summons but due to the Judge's unavailability, that summons too was adjourned. This now comes before this Court some seven months later.
The Facts The Plaintiff, Wicklow Distributors Inc., agreed to lease Air Atlantic Honduras S.R.I. two aircraft. The subject matter of these proceedings is a Hawker Siddeley HS748 series 2B aircraft bearing Serial No. 1801. The aircraft is owned by Dellair Trading Inc. This corporation purchased the aircraft from Liat on 21st May 1996. Wicklow Aviation, a wholly owned subsidiary of Dellair Trading Inc., which leased the aircraft to Wicklow as evidenced by a certain Dry Lease Agreement dated 14th August 2002. In turn, Wicklow leased the aircraft to the Defendant, the Lease being a lease agreement with an option to purchase. The aircraft was rated in subsequent stages. Subsequently, the Lease was varied, the amended terms being incorporated on a letter dated 15th April 2002. The Defendant did not perform the in conditions under the lease, alleging that the aircraft was not on delivery and proceeded to expend monies on repair of the aircraft. The aircraft was subsequently ready for use on 5th November 2002. By notice dated October 2002, the Plaintiff terminated the lease as it alleged that the Defendant was in default.
The Lease was terminated by the Plaintiffs and the Plaintiffs brought an action in this jurisdiction to recover payments due to it under the terms of the lease. The writ of summons and statement of claim was presented as an assailable claim. Counsel for the Plaintiff conceded that this is in fact not the case. On the facts, the claim is not as straightforward as that which was intended to this Court at the injunction hearing. The Defendant has asserted the quantum claimed by the Plaintiff, contested the jurisdiction, and contested the right to forfeiture under the terms of the lease. The blank of the defence and its refusal or failure to comply with the pertinent requirements under the Lease is a crack that is alleged to have occurred to the engine of the aircraft, after the signing of the lease. The Defendant contends that as a result of the crack, monies to be expended by him to make the aircraft airworthy and safe are greater than anticipated. The Plaintiff contends that the Defendant had no knowledge of the crack. The Plaintiff contends that the Lease agreement places the obligation on the Defendant to have inspected the aircraft, that the aircraft was leased as is and that the Defendant has failed to comply with the terms of the lease.
The principle caveat emptor applies. These clearly are matters that are serious issues to be tried at trial. For purposes of this application I have to decide whether the ex parte injunction granted in this matter was properly granted, whether the Court had jurisdiction to do so and whether it should now in all the circumstances of the case be extended to the trial of this matter. Injunction Ex parte procedure will only be appropriate, either where the delay occasionable day notifying the Defendant may cause to the Plaintiff irreparable damage or where secrecy is essential. In this case, the Plaintiff's eit to the Court that the application being made ex parte was essential as the aircraft was likely to leave the jurisdiction if it was postponed. It was said to be a case of real urgency where it was 12 days' le to give notice to the Defendant. At the time of the ex parte being granted, the Court had no affidavit evidence before the Court in granting the injunction took the view that an undertaking or an unlimited guarantee would compensate any loss for a sir that may be suffered by the Defendant, as a result of the sir.
The granting of the injunction. An injunction was granted for seven days. If the case is one of real emergency and time is of the essence, a Court may take the view that the Plaintiff having had no time to issue a writ could get the ex-parte injunction on an undertaking that the writ and statement of claim and all other necessary documents including an affidavit be filed as soon as possible after the order was granted. In granting a screen injunction, the Court retains the overriding discretion. That applies if there is a serious issue to be tried. If the answer is no, the application fails. When has an adequate remedy? 3. Does the balance of convenience or balance of justice lose its an Plaintiff's applying for an ex-parte injunction, the Plaintiff must disclose the nature of his case and any defence which the Defendant has indicated in correspondence or elsewhere. In such a case, the duty to disclose must be discharged even if the Plaintiff's case might be prejudiced by such disclosure.
plc v Saunders [1988] 1 W.L.R., page 863. In Brinks Mat Ltd. v Elcombe [1988] 1 WLR, page 1350, the following principles were laid down by the Court of Appeal:
It was the duty of the plaintiffs to make full and frank disclosure of the material facts in applying for the injunction;
Materiality was to be decided by the court and not the plaintiffs or their advisers;
The duty of disclosure applied to material facts known to the plaintiffs and any additional facts, which would have been known had proper inquiries been made;
The extent of those inquiries depended on all the circumstances of the case;
It must be insured that the party obtaining the injunction was deprived of any advantage derived from a breach of the duty of disclosure. The question whether a fact not disclosed was sufficiently material to justify the immediate discharge of the injunction depended on the importance of the fact to the issues to be decided. The court had a discretion to continue the injunction or grant a new one. In a particular case, it has been conceded by counsel for the Plaintiff, Mr. McDonough that there was, in fact, no full and frank disclosure by the Plaintiff to the court on the filing of the first affidavit, which was done the day after the injunction was granted.
Indeed, the Defendant's counsel Mr. Norman Hill, Q.C. submits that the same can be said of the second affidavit filed by the Plaintiff's representative, in which he deposes: "There was no intention on Wicklow's part to mislead the Court, but rather the omission was caused by a failure to fully appreciate Wicklow's obligation to place all relevant material before the Court prior to the making of that application." The paragraph is revealing and bearing in mind that the question of fraud or lèse-majesté and non-disclosure was not to be decided by the Plaintiff or their advisors but by the Court, this is, in my view, a serious mission. The Plaintiff failed to disclose some very re-disclosable facts. Mr. Norman Hill, Q.C. submits that the omission was fundamental. He submits that at no stage did the Plaintiff hold $200,000 as security as to he further submits that the Court was not advised of the refusal of the Court to refuse claims nor, indeed, of the fact that there was litigation in which the Plaintiff had sought an injunction which had been served. He also submits that evidence should have been tendered further guarantees and a mortgage given by the Meyer family on the ad
```html Defendant's representatives to secure the payments under the Lease. The Defendant also submits that full and frank disclosure or the absence thereof, in this matter is not the only ground on which the injunction should be discharged. It submits that under Article 16(1) of the terms of the Lease states: 7 a The Lease shall be governed and controlled as a validity, enforcement, interpretation, construction, effect and in all other respects / the statutes, laws and decision of the Province of Ontario." 3) stat 16 Plaintiff and Lessor agree that Toronto, Ontario shall be proper venue for any legal indictments involving this Lease." Pla con't Mr. McDonough contends that the Defendant has waived its rights under this clause by virtue of having commenced proceedings in Florida to seek declarations of the an remedies under the terms of this lease. Mr. Hill, Q.C. su that the Florida proceedings were based on fraud, as a result of the securities being in Florida and that as the defendant br se ld su vi ```
Transcript of the Document The document discusses the jurisdiction and the ex-parte injunction in a legal context. It mentions that the proceedings cannot be considered to be a waiver by the Defendant if the Defendant is forced to litigate in Florida. The document also addresses the question of jurisdiction, where the Defendant having a place of business in Florida is considered. The Court is deciding whether the ex-parte injunction should be granted without full and frank disclosure. The document further discusses the seriousness of the case for both the Plaintiff and the Defendant, and whether there are several triable issues in the case. The text is fragmented and contains some errors in grammar and structure. Here is a faithful transcription with corrections and improvements: --- **On the question of jurisdiction, the Defendant having submitted to this jurisdiction, the Court has now to decide whether the ex-parte injunction should be granted without full and frank disclosure. In order to answer that question, I consider the following:** **1. Does the Plaintiff have a serious case to be tried?** There are no special circumstances which would make the case of the Plaintiff, such a clear one that it can be decided at the Court's level. In other words, there are several triable issues. **2. Does the Defendant have a serious case to be tried?** The Defendant has a serious case to be tried as does the Plaintiff. --- This transcription maintains the original content while correcting grammatical errors and improving readability.
An injunction being discretionary like the grant of other equitable remedies it may be refused or granted subject to conditions or restrictions, notwithstanding that the applicant has established a cause of action. Even if the Plaintiff is entitled to judgment in default of defence, the judge still has the discretion as to the direction and other terms and conditions of the injunction. 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```html 15 willing to waive his complaint in return for payment and as Lawson LJ said in T.J. Smith & Nephew Ltd. v 3M United Kingdom plc reported at [1983] RPC 92, page 102: “As a general principle, I accept that if there is clear evidence of a willingness to accept a royalty payment, then that may well entitle the court to infer that damages would be adequate.” 1 old he to go on to examine whether this particular Defendant ward by we sufficient to pay the damages. On the figures put fc Oy the Plaintiff, the arrears to last year April was some L. that $, there. The Defendant has paid security deposit of $200,000 and is a mortgage in place and I am of the view that should I he conti don't damages would be an adequate remedy then the D quater ind has sufficient funds to cover the damages. Does the ba meet convenience entitle me to say that the injunction should be Indeed, if I were to hold that damages were an ac remedy then this issue would be redundant. 30 ol But no I to address the question of the balance of convenience and erl for the Plaintiff has submitted that even if I were to ala ```
```html hold that the ex parte injunction should not have been granted, the extension of it should be decided on a balance of convenience. In Cayne v Global Natural Resources plc [1984] 1 All E.R. 225 at page 237. Sir Robert Megarry V-C said: “That [the ‘balance of convenience’] is the phrase which, of course, is always used in this type of application. It is, if I may say so, a useful shorthand but in truth, ... the balance ‘of convenience’ is seeking to make is more fundamental, more weighty, than mere convenience. I think that it is quite clear from both cases that, although the phrase may well be substantially less elegant, the ‘balance of injustice’ better describes the risk of doing any injustice better describes the process involved.” It is not my function at this stage to determine the final rights of the case. Other party may succeed and therefore my decision must see the dance of justice. The circumstances and the facts in each case to vary and matters to be taken into account vary in each case. However, as it is my function to preserve the balance of justice to decide whether extending this injunction would be an injustice to the Defendant. Mr. Norman Hill, Q.C. submits that it is 16
Denial of the use of a aircraft and thereby suffering business loss;
That the defendant still will have to pay rental for the aircraft up to a certain date;
That the defendant having expended monies on renovating and repairing the aircraft will now lose that capital subject to seizure; and
That the balance of injustice would definitely be in the favour of the refusal of the injunction and in favour of the defendant, as the plaintiff can be compensated in damages should it succeed. McDor Mr. Smith on behalf of the Plaintiff submits that the Plaintiff owns the aircraft, that if the injunction is lifted the Defendant would be that it is entitled to use the aircraft and that they will utilize the aircraft and that the aircraft may well be lost to the Plaintiff. He further submits that in all the circumstances of the case, the injunction should not be extended because the Plaintiff has a clear strong case. I agree. There is no evidence before me that the Defendant will lose the aircraft or indeed that they have in the past endeavoured to hide the same. The injunction should have been reviewed expeditiously. Therefore, in this case cannot be attributable to either party and the court feels compelled to do so.
```html Having considered the relevant material before me I find: 1. That there was no full and frank disclosure as required by law; 2. That, in the circumstances, damages would be an adequate remedy in all the just. Th circ the balance of convenience or the balance of disc mce lies with the Defendant and in all the instances of this case even if I was to consider the new de novo it would not lie in favour of me granting injunction and/or extending the one in force; and erefore grant the Defendant's application to his charge the injunction. Th of tion of damages in my view should be deferred until the tri action and costs to the Defendant to be agreed if not tace P. age of th Day of February, 2004 4 Ju 3 Levers. Ju 2e Grand Court he ate xe al ist idg