Hafeez v CPM Consulting Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 28 October 2020
• Neutral Citation: [2020] IEHC 536
• Court: High Court
• Docket Number: [2020 No. 6367P]

BETWEEN

MUHAMMAD SABIR HAFEEZ

PLAINTIFF

AND

CPM CONSULTING LIMITED

DEFENDANT

[2020] IEHC 536

David Keane

[2020 No. 6367P]

THE HIGH COURT

CHANCERY

Interlocutory injunctions – Balance of justice – Forfeiture of lease – Plaintiff seeking interlocutory injunctions against the defendant – Whether the balance of convenience or balance of justice lay against the grant of the interlocutory injunctions sought

Facts: The plaintiff, Mr Hafeez, sought five separate interlocutory injunctions against the defendant, CPM Consulting Ltd, together with an interlocutory order granting him relief against the forfeiture of a lease, pending further order. The injunctions he sought were to: (a) restrain CPM from undertaking any works to a premises comprising the ground floor restaurant and part of the rear of the first floor at 26 Oliver Plunkett Street, Mullingar; (b) require it to permit him to re-enter the restaurant premises and resume business there; (c) require it to deliver up vacant possession of the restaurant premises to him; (d) require it to provide him with the keys of the restaurant premises; and (e) restrain it from interfering with the operation of his business at the restaurant premises. CPM opposed that application and joined issue with Mr Hafeez on all of his underlying claims.

Held by the High Court (Keane J) that, on the evidence before it and in the submissions made, Mr Hafeez had failed to satisfy it that he had a strong arguable case that the forfeiture of the lease of the restaurant premises was invalid; that, if valid, it was waived; or that, if valid and not waived, he was nonetheless entitled to relief against it. Keane J was not satisfied that an award of damages would be an adequate remedy for the loss caused to Mr Hafeez if he was refused injunctions but later succeeded at trial. Still less was Keane J satisfied that damages would be an adequate remedy for the loss caused to CPM if injunctions were granted against it but the claims against it failed at trial. Overall, Keane J found that the balance of convenience or balance of justice lay against the grant of the interlocutory injunctions sought.

Keane J held that the injunctions sought as reliefs at paragraphs 1 to 5 inclusive of the notice of motion must be refused. Keane J did not accept that the relief sought at paragraph 6 – an order granting relief against forfeiture – was an appropriate order to consider on an interlocutory application. Keane J was satisfied that no such order was warranted on the evidence and argument advanced in this case.

Application refused.

JUDGMENT of Mr Justice David Keane delivered on the 28th October 2020

Introduction

1 This is an interlocutory injunction application in a landlord and tenant dispute over a commercial premises in Mullingar, County Westmeath.

2 The plaintiff, Muhammad Sabir Hafeez, is a businessman who resides in Castleknock, County Dublin.

3 On 20 December 2017, Mr Hafeez entered an agreement (‘the lease’) to lease a premises comprising the ground floor restaurant and part of the rear of the first floor (‘the restaurant premises’) at 26 Oliver Plunkett Street, Mullingar from John Wylie and Ann Wylie, who were then the owners of that building. Since then, Mr Hafeez has been operating a takeaway restaurant named ‘Chicken Hut’ there.

4 The defendant, CPM Consulting Limited (‘CPM’), is an Irish registered company. On 26 February 2019, CPM purchased the building, including the restaurant premises, from Havbell DAC (‘Havbell’), which then owned it, for €450,000. Havbell had acquired the mortgage on the property in 2015 and had appointed a receiver to the property on 18 June 2018, just less than six months after Mr Hafeez entered the lease with the Wylies. CPM purchased the building with the benefit of, and subject to, the lease.

5 Ciaran Moynihan is a director of CPM. He and his wife own the property at 28 Oliver Plunkett Street, which is next door to No. 26, and their family residence is at the rear of No. 28.

6 At about 10.30 a.m. on 14 September 2020, CPM re-entered the restaurant premises and took possession of them, asserting that the lease is forfeit. That event led to the issue of these proceedings.

Procedural History

7 A plenary summons issued on 15 September 2020. In the general indorsement of claim, Mr Hafeez seeks an order for possession of the restaurant premises; declarations that a notice to him to quit dated 21 March 2020 or any other such notice to him is invalid and that he is entitled to peaceful possession of the restaurant premises under the lease; in the alternative, an order granting him relief from the forfeiture of the restaurant premises; damages for breach of contract, breach of covenant, trespass, nuisance, unlawful interference with contractual relations and causing loss by unlawful means; and, finally, all necessary accounts and inquiries.

8 On the same day, Mr Hafeez applied to me ex parte for various reliefs, principal among which was an interim injunction directing CPM to deliver up possession of the restaurant premises to him immediately. That application was made by way of an ex parte docket, grounded on an affidavit of Mr Hafeez, sworn on that date. Contrary to what was later averred by Mr Hafeez, I did not refuse to hear that application. Rather, I ruled that, based on the evidence presented, Mr Hafeez had failed to establish the necessary urgency either to obtain interim ex parte relief or to be granted leave to effect short service of a motion seeking interlocutory relief in the same terms. I did indicate that if, in seeking to issue a motion in the Central Office in the usual way, Mr Hafeez was unable to obtain an early return date, I would certainly hear an application for one.

9 It transpired that Mr Hafeez could not obtain an early return date for his motion from the Central Office, no doubt because of the pressure on court time caused by the measures necessary to address the Covid-19 pandemic. However, he did not then apply for one. Instead, for reasons that have not been explained, Mr Hafeez renewed his application for interim ex parte relief, this time before Reynolds J, on 21 September 2020. Correctly concluding that it had been my intention that Mr Hafeez should get an early return date for an interlocutory application, Reynolds J granted Mr Hafeez liberty to effect short service of a motion returnable for 24 September.

10 A motion duly issued on behalf of Mr Hafeez on 21 September. On the same date, Mr Wylie swore an affidavit on behalf of Mr Hafeez.

11 On 22 September, an appearance was entered on behalf of CPM and, on 23 September, Mr Moynihan swore an affidavit on behalf of CPM in opposition to the motion.

12 When the motion came before the court on 24 September, Mr Hafeez sought an adjournment to enable him to consider the contents of Mr Moynihan's affidavit. Counsel for CPM informed the court that it, too, would like an early hearing as it had lined up a new tenant for the restaurant premises and would like to grant a new lease. On the understanding that the status quo was to continue pending the determination of the interlocutory injunction application, Reynolds J adjourned it to 5 October.

13 Mr Hafeez swore a second affidavit on 30 September. Jinal Jitenbhai Madhawani, who lives in Lucan, County Dublin, and describes himself as an employee of Chicken Hut, swore an affidavit on behalf of Mr Hafeez on the same date, as did Usman Hameed, who lives in Drogheda, County Louth, and describes himself as a manager of Kayla Fast Foods ( sic), trading as Chicken Hut.

14 When the matter came back before the court on 5 October, Reynolds J fixed 9 October for the hearing of the application. I heard the application on that date.

The present application

15 Mr Hafeez seeks five separate interlocutory injunctions against CPM, together with an interlocutory order granting him relief against the forfeiture of the lease, pending further order. The injunctions he seeks are to: (a) restrain CPM from undertaking any works to the restaurant premises; (b) require it to permit him to re-enter the restaurant premises and resume business there; (c) require it to deliver up vacant possession of the restaurant premises to him; (d) require it to provide him with the keys of the restaurant premises; and (e) restrain it from interfering with the operation of his business at the restaurant premises.

16 CPM opposes that application and joins issue with Mr Hafeez on all of his underlying claims.

17 When the motion came on for hearing, Mr Hafeez had not yet delivered a statement of claim. In the absence of a properly particularised claim, it is necessary to attempt to identify the issues that he seeks to have tried (and, thus, that form the basis of his injunction application) from the contents of the indorsement of claim on the plenary summons; the averments contained in the affidavits that have been exchanged; and the written and oral submissions of the parties.

The lease

18 The lease between the parties is exhibited to the first affidavit of Mr Hafeez. It covers the permitted user of the restaurant premises as a restaurant for a ten-year term between 20 December 2017 and 19 December 2027. The rent is €35,000 a year for the first two years; €37,500 for the next two years; €40,000 for the fifth year; and €44,000 a year for the remaining five years. The annual rent is to be paid in monthly instalments in advance and, in addition, there is to be a deposit of one month's rent. Payment of rent was to commence on 1 March 2018. Mr Hafeez is entitled to break the lease after the expiration of five years from its commencement on the provision of six months' notice in writing.

19 Under clause 2 of the lease, Mr Hafeez agreed, among other things, in substance the following:

(i) To pay the reserved rent without deduction at the times, and in the manner, provided for in the lease (Clause 2(a)(i)).

(ii) Not to...