Raman Singh for the Plaintiff
S. Chandra for the Defe
Dates of Hearing and Submissions - 13th November 1997, 22nd January, 24th February 1998
Date of Interlocutory Judgment - 8th April 1998
INTERLOCUTORY JUDGMENT
Although this is an application by the Defendant to dissolve an Injunction which I granted the Plaintiff on the 18th of July 1997,
it is really I think an application by the parties for directions as to their future conduct in this matter which concerns initially
a Lease Agreement between the parties dated 6th July 1994 followed by a Sale and Purchase Agreement dated 19th July 1994.
The Lease Agreement concerns the letting by the Defendant to the Plaintiff of a piece of land containing three acres at Koronivia
Road, Nausori being part of C.T. No. 8855 on which is erected a dwelling-house containing four bedrooms, lounge, kitchen, bathroom,
laundry and garage. The rental was $300.00 per month for a term of two years commencing on 31st July 1994.
Clause 12 of the Agreement gave both the Lessor and Lessee the right to give two months notice to terminate the Agreement.
Clause 12 gave the Plaintiff (Lessee) the first option to buy the property.
On the 19th of July 1994 the parties entered into a Sale and Purchase Agreement which provided in summary that:
(1) The consideration was $60,000.00.
(2) The property was subject to the Department of Town and Country Planning approving the subdivision, of which the land is part,
of the registration of a separate title for the property failing which the Agreement was to be rendered null and void.
Clause 4 provided that the Plaintiff was to continue to rent the property for $300.00 per month for two years as from 1st August 1994
and that any rental paid was to be accounted as part of the purchase price, the balance of which was to be paid in full on the date
of settlement when all proper conveyancing procedures were completed.
Settlement was to take place on or before 1st August 1995 or within three months from the date of signing of the Subdivision Plan
by the Registrar of Titles.
On the 26th of June 1997 the Defendant levied distress on the Plaintiff for non-payment of rent for a total for twelve months of $3,600.00.
On the 3rd of July 1997 the Plaintiff issued an inter partes Notice of Motion for an order that the Defendant be restrained from interfering
with the Plaintiff's quiet enjoyment of the premises and from proceeding with the distress for rent.
On the same day as the Motion the Plaintiff issued a Writ filed in this Court on the 4th of July in which he alleges that he has carried
out substantial upgrading and maintenance work on the premises costing $12,000.00 and seeking orders for specific performance against
the Defendant to make the necessary application to the Town and Country Planning Board and for a declaration that there is a valid
Sale and Purchase Agreement between the Plaintiff and the Defendant. No Defence has yet been delivered.
In an Affidavit in Reply to that of the Plaintiff the Defendant says that he never authorised the Plaintiff to specifically upgrade
the premises and that the delay in subdividing the land although approved by the Town and Country Planning Board has been caused
by the lack of co-operation of the other undivided shareholders in the property who refused to go ahead with the subdivision.
The Defendant alleges that the Plaintiff has defaulted in payment of his rent which caused him to instruct his solicitors to issue
a Notice to Quit and later for distress for rent.
The submissions of the parties are commendably brief. First the Plaintiff claims that the distress for rent is unlawful because at
the time the Plaintiff's status was not that of a tenant because the Notice to Quit terminated the tenancy from 1st of May 1997.
It is submitted that the tenancy Agreement was superseded by the Agreement of Sale and Purchase which I take to mean that as from
the 19th of July 1994 the Plaintiff contends he was a purchaser in possession subject to the payment of instalments of purchase money
to be regarded as rent.
The Defendant's reply to this submission is that the Plaintiff has been occupying the Defendant's premises since July 1994 and has
paid rental to the Defendant of $6,900.00 whereas the total rent due from July 1994 to February 1998 is $13,200.00 leaving the balance
owing to the Defendant of $6,300.00 as at 28th February 1998.
The Defendant submits, and I agree, that it would be unfair for the Plaintiff to continue in occupation of the property without paying
any rent. It therefore seems to me reasonable that the injunction be dissolved, that the Plaintiff pay the arrears of rental of $6,300.00
within a period to be agreed by the parties and that the Plaintiff be further ordered to continue paying the agreed rental on a monthly
basis until the parties decide either to terminate the Agreement or reach some new agreement on the amount of the instalments.
I therefore make orders against the Plaintiff in the above terms.
Neither party has asked for costs and I think it fair in the circumstances that these be left in abeyance for the time being.
JOHN E. BYRNE
JUDGE
Hbc0256d.97s
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