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Abbco Builders Ltd v New India Assurance Co Ltd [2022] FJCA 1; ABU0013.2018 (25 February 2022)

IN THE COURT OF APPEAL, FIJI

In the matter of an Application to have the Judgment of the Court of Appeal dated 30^th April, 2021 corrected and/or clarified

CIVIL APPEAL NO. ABU 0013 of 2018
(High Court Civil Action No. HBC 327 of 2009)

BETWEEN : ABBCO BUILDERS LIMITED

Appellant

AND : NEW INDIA ASSURANCE COMPANY LIMITED

Respondent

Coram : Lecamwasam, JA
Almeida Guneratne, JA
Jameel, JA

Counsel : Mr. B.C. Patel for the Appellant

Mr. F. Haniff for the Respondent

Date of Decision : 25 February 2022

DECISION

[1]. A correction has been sought by the Appellant in regard to a matter contained in the judgment of this court dated 22 February 2020.

[2] After judgment was delivered, on the same day, the Appellant’s Solicitors noticed an error in regard to the rate of interest, in paragraph [80] of the judgment which stated as follows:

[80] Accordingly, learned Counsel for the Respondent has correctly conceded in his written submissions that if this court were to overturn the learned trial Judge’s finding on quantum, then interest must accrue on the judgment sum from 7 July 2009 (the date on which the Respondent wrongly repudiated the Appellant’s claim), to the date of payment. This court makes order that the Appellant is entitled to interest of 4% on the judgment sum of $109, 430.75 from 7 July 2009, until the date of payment in full.

[3] Thereupon, the Appellant’s Solicitors wrote letter dated 28 February 2020 to the Respondent’s Solicitors stating as follows:

“We note the error in the percentage of interest awarded by the court. It was clear from the Respondent’s oral and written submissions that the rate of 10% prescribed under s. 34 of the Insurance Law Reform Act which is mandatory and the starting date of 7 July 2009 was never in dispute. The only issue was whether the interest should be compounded and the court has held in favour of the Respondent.

The purpose of this letter is to seek correction of the judgment by replacing 4% with 10 % simple interest by consent of the parties and top avoid a formal application to the Court and or an appeal.

Pending resolution of this issue by the parties or the Court we would ask that you do not seal the judgment.

We await your early reply.”

[4] The Respondents Solicitors did not reply. The Appellant’s Solicitors then wrote to the Registry on 2 March 2020, copied to the Respondent’s Solicitors requesting a reply by 1 April 2020. There was yet no response. All attempts to elicit a response from the Respondent’s Solicitors bore no fruit and have remained as such up to now.

[5] The Appellant then filed Summons dated 14 April 2020, with supporting affidavit of Lekh Ram Narayan sworn on 14 April 2020, seeking that paragraph 80 of the judgment be amended by replacing the figure “4%” with “10 %”, in order to comply with the Insurance Law Reform Act 1996 (“the Act”), and the Insurance Reform (Interest Rates) Regulations 2004 (the Regulations”), and for costs of this application. The Respondent did not reply to this affidavit either.

[6] In the summons the Appellant has sought the following:

“ That paragraph 80 of the judgment delivered on 28 February 2020 be amended by replacing “4%” stated therein with “10%” to comply with the Insurance ( Law Reform) Act 1996 and Insurance Law Reform Interest Rate) Regulations 2004.

[7] The Appellant has now raised the following 2 issues for the determination of this court.

(i) Is there an error arising from the accidental slip or omission in the judgment of 28 February 2020 which can be corrected pursuant to the inherent jurisdiction under the slip rule?

(ii) Does a single judge have the powers under s. 20 (i) (j) to hear and determine the Summons filed to correct the judgment of the full court?

[8] The second issue raised need not be answered, as the matter is now before the full court. The court will therefore consider only Issue number 1.

The correction of the Rate of interest sought by the Appellant in the Summons

[9] The Appellant sought “interest on the judgment sum compounded daily pursuant to s. 34 of the Act and calculated from 7 July 2009 to the date of payment”.

[10] In paragraph [79] of the judgment, in respect of interest, this court said:

[79] The Appellant has claimed interest on the judgment sum. This matter was addressed before this court by both learned Counsel as well as in their written submissions. The task of this court has been lightened by the fact that they have both agreed that it is simple interest and not compound interest that ought to apply. The principles in Bankstown Football Club v CIC Insurance Ltd. (1997) 187 CLR 3ere followellowed by this court in Punjas (supra), and this cours no s no reason to deviate from that.

[11] Whilst the Appellant had, in its Statement of Claim claintert the specifpecified in the said Regulations, the Regulations were not challenged and and they they remain valid and binding.

[12] This court is unable to agree with the Respondent’s submissions that the error sought to be corrected is not an obvious error, or that the court did not turn its mind to the Regulations under the Insurance Law Reform Act 1996, and that the court is functus.

[13] Further, this court in Punja & Sons Ltd. v New India Assurance Co Ltd.[2019] FJ CA 250; ABU 115.2017 ( 29 November 2020) awarded simple interest at the rate of 10% on the judgment sum, and this judgment was referred to by this court in its Judgment, as set out in paragraph [10] above. There is no doubt that the court gave its mind to this precedent, as well.

[14] In considering the first issue raised, this court has considered the written submissions of the Appellant and Respondent filed by them in respect of the Summons dated 28 February 2020, and is of the view, and accordingly holds that the reference to 4% in paragraph [80] of the judgment is an accidental slip. Therefore this court is empowered to make the amendment sought by the Appellant.

[15] This court reiterates that the reference to the period “the date on which the Respondent insurer wrongly repudiated the Appellant’s claim, until the date of payment,” in paragraph [80] of the judgment, is undoubtedy a reference to, and a reflection of section 36 of the Act which provides as follows:

34.- (1) Where an insurer is liable to pay to a person an amount under a contract of insurance or under this Act in relation to a contract of insurance, the insurer is also liable to pay interest on the amount to that person in accordance with this Section.

(2) The period in respect of which interest is payable is the period commencing on the day as from which it was unreasonable for the insurer to have withheld payment of the amount and ending on whichever is earlier of the following days:

1. the day on which the payment is made;
2. the day on which the payment is sent by post to the person to whom it is payable.

(3) The rate at which interest is payable in respect of a day included in the period referred to in sub-section (2) is the rate that is prescribed by regulation.

[16] Accordingly, section 34 of the Act engages Regulation 2 (1) of the Insurance Law Reform Regulations, which provides as follows:

“For the purpose of section 34(2) of the Insurance Law Reform Act 1996, the interest rate payable in respect of each day referred to in that section is 10% per annum”

[17] This Court is satisfied that the Appellant’s Summons is to correct an obvious error and to reflect the correct statutory position. The correction sought to be made was brought to the attention of the Respondent on the very day that the judgment was delivered, and as it is a matter of law, and a matter than cannot have been disputed, it would have been correct for the Respondent to have agreed. The multiple letters and reminders to the Respondent were met only with silence on the part of the Respondent.

[18] This court is also satisfied that the correction sought by the Appellant reflects the intention of the court. Indeed, there can have been no other rate. Besides, had the matter been argued, the Respondent would not have been able to submit that any rate other than the rate of 10% specified in the Regulations would be the applicable rate. This is clearly not a matter in which either the parties or the court would have a choice. There can be no legal basis on which this court could have entered judgment for a rate other than the rate provided for in the Regulations.

[19] In the circumstances, the court answers issue number 1 in favour of the Appellant and holds that the only rate that could have been ordered is 10%, which is the rate prescribed in the Regulations and remains applicable in law. The court therefore corrects paragraph [80] of the judgment by replacing the figure ‘4%’ with the figure 10%.

[20] In the result, this court makes its determination on the Summons of the Appellant to have paragraph [80] of the judgment of the Court dated 28 February 2022, corrected as follows:

“Accordingly, learned Counsel for the Respondent has correctly conceded in his written submissions that if this court were to overturn the learned trial Judge’s finding on quantum, then interest must accrue on the judgment sum from July 7, 2009(the date on which the Respondent wrongly repudiated the Appellant’s claim), to the date of payment. This court makes order that the Appellant is entitled to interest of 10% on the sum of $109, 430.75 from 7 July 2009, until the date of payment in full.”

Costs of the present application

[21] In the Summons which is the subject of this application, the Appellant has put in issue the conduct of the Respondent in refusing to have the matter resolved when it was first brought to its attention on the date the judgment was delivered, as well as several times thereafter. The fact remains and the record shows that multiple letters addressed by the Appellant to the Respondent received no response whatsoever. The matter has taken a considerable period of time calculated from the date on which the Appellant initially drew the Respondent’s attention to the obvious error. Further, the Respondent did not file a reply to the affidavit of Lekh Ram Narayan filed on behalf of the Appellant. The Summons had been called four times in court, and the Appellant has been compelled to pursue this application, because of the conduct of the Respondent.

[22] Accordingly, this court is satisfied that the Appellant is entitled to costs in the circumstances of this case, and therefore makes order that the Respondent do pay the Appellant a sum of $1000.00FJD, within 28 days of the date of this Decision.

[23] This court is satisfied that the correction of paragraph [80] of the judgment to reflect the statutory position is well within the scope of section 13 of the Court of Appeal Act.

Therefore, this court proceeds to make its decision for the purposes of the present application as follows:

DECISION

(i) The court reiterates the contents of paragraph [20] of this Decision.
(ii) The court reiterates the contents of paragraph [23] of this Decision

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Hon. Justice S. Lecamwasam

JUSTICE OF APPEAL

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Hon. Justice Almeida Guneratne

JUSTICE OF APPEAL

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Hon. Justice Farzana Jameel

JUSTICE OF APPEAL