Roberts, CJ.

On 6th May, 1996, there was an ex-parte application for an interim injunction. I granted this (in virtually the same terms as the interlocutory injunction granted today) making 0900 on 13th May, the return date, on which the inter-partes application should be heard.

The ex-parte order was served on the second defendant (D2) on 6th May, 1996. Although D2, on 1st May, 1996, entered an appearence to the statement of claim, which was served on him on 23rd April, 1996, he has not yet filed a defence. I told him that he should do so, himself or by a lawyer appointed on his behalf, within one month of 13th May, 1996.

THE DISPUTE.

On the face of it, both the plaintiff and D2 deserve some sympathy for what has happened. The first defendant ("D1") appears to have profited at the expense of both the [Page 2] plaintiff and D2, though I appreciate that I have not heard his version of events.

The plaintiff has occupied Lot 3711 ("the land") since 1990, when he entered a 10 year lease with D1 at a rent of $2,500 a month. From June 1991 to April 1994, the plaintiff spent about $200,000 in erecting a warehouse and other structures on the land.

On 12th April, 1994, D2 entered a development agreement with D1. In effect, D1 transferred his ownership of the land to D2, on the undertaking of D2 to build a house, at D2's expense, on another Lot, which house would be handed over to D2 by 30th November, 1994. This was signed by D1 and D2.

On 14th April, 1994, D2 bestowed an irrevocable power of attorney upon D1, giving the latter power to deal with the land as if he was owner, including power to sell or otherwise deal with the land. This was signed by D1 and D2.

On 15th April, 1994 D2 executed a deed of trust, to give effect to the power of attorney. This was signed by D1 and D2.

The plaintiff entered an agreement with D1 for the purchase and sale of the land on 12th July, 1994. D2 says that, although he knew of this transaction, he did not give his consent to it. The plaintiff asserts that D2 consented.

On 14th July, 1996, D1 executed a substitution agreement in favour of the plaintiff - i.e. the plaintiff become holder of the power of attorney.

The land was thereafter sold by the plaintiff to D1. From the sale of the land to the plaintiff, D1 received $500,000 from the plaintiff.

In December, 1994, after the purchase price was paid by the plaintiff, D1 and D2 signed a letter to the Land Office, objecting to the transfer of the land to the plaintiff. The Land Office agreed not to effect such a transfer until it received a confirmation from D2.

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On 10th February, 1996, D2 wrote to the plaintiff, informing him that he was still the owner of the land, that the plaintiff had owed him rent since May 1994, and that he would take action against the plaintiff, including cutting off his electricity and water, and demolishing his buildings on the land, within three months.

D2, when asked to reply in chambers, explained that he had not yet put in a defence because he had been trying to settle the matter, though he had so far failed to do so.

His explanation is that the three documents, which he signed, were not explained to him before he did so. He thought that they were all concerned with the development agreement, that this was conditional, that D1 had not fulfilled his undertaking to build; and that because of that failure, he was still the owner of the land and entitled to do what he wished with it.

Indeed, D2 added, he had entered a recission agreement on 16th August, 1995, which rescinded the power of attorney which he had signed in 1994. He insists that he did at the time inform the lawyer, who drafted the recission, that he had signed an irrevocable power of attorney.

D2 said that it was wrong that D1 should have his land and that D1 should pay back the plaintiff and let D2 have his land. D2 added that he objected to the sale of his land to the plaintiff. As he owns the land, he has claimed rent, he added.

SHOULD AN INJUNCT