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Burness v Bott [1994] FJHC 9; Hbc0416d.93s (18 January 1994)

IN THE HIGH COURT OF FIJI
CIVIL JURISDICTION

CIVIL ACTION NO. 416 OF 1993

Between:

IAN GILBERT BURNESS and
DAVID FOWLER BURNESS
Plaintiffs

- and -

PETER WILLIAM BOTT
Defendant

Mr. W. Morgan for the Plaintiffs
Mr. T. Seeto for the Defendant

REASONS FOR RULING

This is an application for the stay of proceedings of the order for vacant possession by consent herein made on the 13th October, 1993 and extended by consent to the 14th January, 1994.

The Plaintiff filed a motion and affidavit in support of the application on the very day he was supposed to give vacant possession. The application was made ex parte on the 14th January; I stayed the Order until the 17th January and ordered the Plaintiff to serve the papers on the Plaintiffs so that the motion could be heard inter partes.

On the 17th January at 9.15 a.m. when the hearing commenced, after objection from counsel for the Plaintiffs, the defendant (applicant) was ordered to file notice of change of solicitors to comply with the High Court Rules before I commence hearing the motion.

This was done and the motion was heard at 2.15 p.m., Ruling was given immediately after the hearing. Although I gave a detailed Ruling I did say that I will give my reasons later and which I now do.

This is the defendant's third application for stay. I need not go into the details of when they were made and what transpired on two previous occasions for everything is on the file, suffice it to say that on both occasions they were straight out orders to give vacant possession first on 1st December, 1993 and second, on further application on 14th January, 1994. The most important thing is that both the orders were orders by consent. When these orders were made no other matters either for compensation of any sort or matters pertaining to the sale of the property in question to the defendant were pursued by the defendant were brought up for incorporation in the said Orders although he did raise a number of matters in his affidavits and now in his third and present application he talks of for the first time wanting compensation for termination by the Plaintiff of a certain lease agreement. For all intents and purposes the said consent orders took care of all matters raised by the defendant and there was nothing left to be determined by the Court. All that was required to be done was that the defendant comply with the said order for vacant possession by the 14th January.

In his first application the Defendant had Mr. McDonnell as his solicitor and he himself was present outside the Chambers. When he made the second application he changed his solicitors and engaged Mr. Tevita Fa. Both counsel consented to the orders referred to hereabove.

The defendant was well aware of the nature of the orders and they were as clear as crystal.

He cannot now be heard to say that Mr. McDonnell should not have consented or and that when Mr. Fa appeared for him he agreed under "duress". I cannot understand his allegation of duress but his present counsel Mr. Seeto said he means that because of his children he felt he should agree. In fact the defendant is not correct when he says in his affidavit that he did not come to know of the first order until very late when in fact it was served on him personally on 3rd November, 1993 soon after it was made (vide item 4 Affidavit of D.F. Burness sworn the 2nd December, 1993 and filed herein).

The consent orders having been made without any condition attached, the defendant cannot now be allowed in this action to go back to square one thereby resurrecting all matters he raised in his previous two application and to introduce a new matter of compensation in this action. If he has any claim to compensation he could pursue it upon obtaining the necessary legal advice. But it appears that there is no tenancy agreement in existence. In item 1 of his affidavit sworn on 24th September, 1993 he said, inter alia, "and that such agreement was in force, in terms of clause 1 of the said agreement, until 18th February, 1992".

As for negotiation for sale of the subject property to the defendant, no agreement had been reached at any time. Hence there is no breach of any agreement. The defendant says that even after the hearing in Chambers of motion for stay on 10th December, 1993 and up to about the time of the present application the defendant wanted to buy the property and had been in touch with the Plaintiffs' solicitors but the Plaintiffs want a higher price now. Mr. Morgan for Plaintiffs says that the Plaintiffs have not agreed to sell and are not prepared to sell to the defendant.

The Plaintiffs are forcefully arguing that the defendant's application for stay should be dismissed and that the order suspending the execution of Writ of Possession be uplifted. They say that the defendant had consented to the orders made and he should comply with them and that he should not be allowed to introduce new matters at this stage in this action. They say that they are entitled to vacant possession.

I understand the situation the defendant is in and I sympathise with him; he had the benefit of legal advice from three different counsel over this matter. Two of them agreed to orders by consent to vacate; Mr. Seeto who appeared for the first time in this the third application and who had no adequate knowledge of past proceedings was in the dark on certain matters particularly as to what was canvassed on previous occasions. Upon being acquainted of the position, he said that upon instructions he raised the matters for Court's consideration in the present application.

On both occasions counsel in their wisdom agreed to consent orders to vacate and no other issue was raised by them on either occasion for Court's consideration.

I am not convinced on the affidavit and on the submissions of the defendant's counsel that anything transpired between the 10th December, 1993 and the 14th January, 1994 to in any way affect the extension of the said order for vacant possession. No agreement has been reached to sell the said property to the defendant. Under order 45 r.10 it does provide for a "stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks just". Even under this Order I am not satisfied that there are grounds which enable me to grant the application.

In fact if anything this is a clear cut case of an abuse of the process of the Court. The defendant knew all along what transpired on previous hearings and yet he keeps adverting to matters he raised in his previous affidavit for reasons best known to himself.

This is a frivolous application and devoid of any merits.

The defendant's motion is dismissed with costs to the Plaintiff to be taxed if not agreed. Further the order suspending the execution of the Writ of Possession is uplifted and the Plaintiff is at liberty to proceed to continue with the execution of the said writ.

D. Pathik
Acting Puisne Judge

At Suva
18th January 1994

HBC0416D.93S