Aeropost Trinidad Ltd 1st Applicant Peter Edwards 2nd Applicant v Vincy Aviation Services Caribbean Freight 1st respondent Couriers Ltd 2nd respondent [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Joseph, Monica J |
| Judgment Date | 18 November 2008 |
| Judgment citation (vLex) | [2008] ECSC J1118-2 |
| Date | 18 November 2008 |
| Court | High Court (Saint Vincent) |
| Docket Number | HIGH COURT CIVIL CLAIM NO: 368/2008 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
HIGH COURT CIVIL CLAIM NO: 368/2008
On 31st October 2008 on a Without Notice application on behalf of the then applicants Vincy Aviation Services (Vincy Aviation) and Caribbean Freight and Couriers Ltd (Caribbean Freight), the Court granted injunctive relief against the then respondents Aeropost (Trinidad) Ltd. (Aeropost) and Peter Edwards.
The Order restrained Aeropost and Peter Edwards and their directors or agents (a) from conducting business from 31st October 2008 to 17th November 2008; b) from printing, circulating, distributing or otherwise publishing notices of termination of any contracts between them, and restrained Aeropost, Peter Edwards, their servants or agents from opening any office in St. Vincent and the Grenadines up to 17th November 2008, for the purpose of carrying on the same or similar services.
Additionally, the Court granted an interim declaration that Vincy Aviation remain the agent of Aeropost and is entitled to commissions earned until 17th November 2008. The Court also granted an order permitting Vincy Aviation to withhold funds belonging to Aeropost which represent monies earned from 30th September to 17th November 2008, and that those sums be not paid over until accounts are properly verified and commission paid to Vincy Aviation.
On 5th November 2008, a Notice of Application was filed on behalf of Aeropost and Peter Edwards for discharge of the interim injunction. On 10th November 2008, on submission made on behalf of Aeropost and Peter Edwards that the Order made on 31st October 2008 was unclear, the Order was amended. On 17th November 2008 I discharged the injunction and now state my reasons.
First applicant Aeropost is a company with registered office in Trinidad and Tobago that offers systems, services, products, solutions and services through agents in Latin America and the Caribbean. Second applicant Peter Edwards is agent for the first applicant and provided affidavit evidence on behalf of both applicants.
First respondent Vincy Aviation is a company registered in St. Vincent and the Grenadines that offers aviation services, courier and cargo handling services to the private and business communities in St.Vincent and the Grenadines. Its managing director is Ricardo Drayton who provided affidavit evidence on behalf of both respondents.
Second respondent Caribbean Freight is a company registered in St.Vincent and the Grenadines that carries on the business of cargo and courier operation in the Caribbean. Its technical director is Ricardo Drayton.
Vincy Aviation had built up a good customer business of 185 customers when Drayton of Vincy Aviation acceded to an invitation from Aeropost and entered into a commercial agreement (Vincy Aviation and Aeropost) on 19th February 2007.
There is a document dated 1 st May 2008 (copy filed not signed) stated to be a Commercial Agreement between Aeropost and Caribbean Freight. There is a document, Amendment No.1 effective 1st August 2008 stated to be between Vincy Aviation and Aeropost which is signed by Drayton on behalf of Vincy Aviation on 3rd August 2008, but not signed by Aeropost.
It is not for the Court at this stage to decide on the merits of the case. What is required is to ascertain whether there is a good arguable case that the parties are governed by the law of Trinidad and Tobago, and to determine on affidavit evidence on behalf of both parties whether the injunction should be discharged.
I look for guidance to the case ofAmerican Cyanamid v Ethicon Ltd. (1975) A.C.397 at pg. 407: "G":
"It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to the facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial."
This will be considered under five subheadings: (1) What is the issue (2) Dispute resolution-Arbitration (3) Applicable law (4) Validity of contract: Non disclosure/material representations (5) Cause of action
Aeropost's Notice of Application claims that the real issue is whether or not a thirty day notice requirement had been breached and that damages would be capable of compensating the applicants.
Mr. Robertson for Vincy Aviation agreed that the issue is - whether there is a contract breach due to lack of notice, and the points to be considered:
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a) what is the period of notice breached;
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b) if there is a breach what are the consequences of that breach;
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c) was the contract unlawfully terminated
He stated that the measure of damages is at large to be quantified. In exercising my discretion I have considered both factors: whether damages can be quantified and whether damages would be adequate remedy. I think that damages can be quantified from information in books and accounts of a business. I also think that an award of damages is an adequate remedy for Vincy Aviation. At p 408 "C" of Cyanamid Case, Lord Diplock said:
"If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiffs claim appeared to be at that stage."
As I find that damages would be an adequate remedy the injunction should be discharged.
For Aeropost, Miss Forde's submission was that paragraph 2 under applicable laws, dispute resolution of the agreement between the parties provide for dispute resolution by arbitration: that Vincy Aviation could invite intervention of the Court only with leave of the Court, in accordance with section 3 of the Arbitration Act (Cap. 13) (the Act) which leave grant is non existent.
For Vincy Aviation, Mr. Robertson's submission was that that paragraph 2 of the agreement does not take into account a breach of contract on termination of contract but rather addresses matters other than contract termination: that that paragraph is of no effect in the circumstances of this case and that leave of the Court is not required to make application to the Court.
Paragraph 2 under Applicable Laws, Dispute Resolution of Commercial Agreement of February 2007:
"Any controversy produced during the relationship of this Commercial agreement, or any unresolved breach of the Commercial agreement terms will be resolved through a Conciliation and Arbitration Association recognized by the American Arbitration Association. The results of this Arbitration shall be respected and abided by both parties"
My interpretation of that paragraph is that the paragraph governs all unresolved matters between the parties falling within or flowing from the Commercial Agreement including a claim of a contract termination breach.
Section 3 of the Act enacts:
"An arbitration agreement, unless a contrary intention is expressed therein, shall be irrevocable except by leave of the Court and shall have the same effect in all respects as if it had been made an order of Court."
As I understand that provision, where a party to an arbitration agreement desires to bypass arbitration proceedings and commence legal proceedings, that party must obtain the leave of the Court. That understanding is strengthened by section 7 of the Act which provides that where a party to an arbitration agreement commences any legal proceeding against another party to the arbitration agreement that other party, before taking any step...
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