1. PATRICK SUI WING CHEER
2. AGNES GNES FESKATOA CHEER
Plaintiffs
Mr. T. Fa for the Defendant
JUDGMENT
This is the Plaintiffs' application under Section 169 of the Land Transfer Act Cap. eeking an order for immediamediate vacant possession of the property of which they are registered as sub-lessees of the land
comprised in Crown lease 3204 Lot 15 on DP No. 2980 with a building thereon situate at 130 Grantham Road in Raiwaqa, Suva from the
Housing Authority as the sublessor of this property (the "property").
Background
The Defendant has been in occupation of the property since 1989. The Plaintiffs attempted in 1989 and 1996 to have executed a formal
sub-lease document for a fixed term but the Defendant failed to execute any document with the result that he has been in occupation
on a month-to-month tenancy throughout.
On 30 December 1997 the Plaintiffs delivered a notice to the Defendant requiring him to quit and deliver vacant possession before
31 January 1998. Upon not receiving any response the Plaintiffs gave another notice on 30 January 1998. The Defendant to date has
failed to vacate the property.
The property is now the subject of a sale and purchase agreement with someone else and settlement was to have been effected before
10th of April 1998. This agreement was entered into on the assumption that the Defendant would have given vacant possession in time
pursuant to the said notices.
Plaintiffs' submission
Initially there was an agreement to sell but it lapsed because the Defendant failed to execute the necessary documents including application
for consent to the dealing but then also the Defendant was not able to arrange finance to purchase the property.
Mr. Naidu argued that on two occasions notices were given to the Defendant requiring him to vacate the property. The Plaintiffs believe
that the Defendant has no valid defence to the action they are entitled to vacant possession.
Defendant's submission
The Defendant through his counsel Mr. T. Fa argued that the lease agreement was not executed by him because the Plaintiffs refused
to do repairs to the building which was badly leaking. The Defendant also submitted that he had an agreement with the Plaintiffs
to buy the property. However, he alleges that while arranging finance to buy it, the Plaintiffs made an agreement with another purchaser.
The Defendant argues that he is entitled to purchase the property as agreed between him and the Plaintiffs. Mr. Fa is inviting the
Court to read into the Defendant's affidavit that the fact of him taking possession and the purchase by him of stock and business
of the Plaintiffs as evidence of agreement between the parties.
Consideration of the issue
Under s172 of the Land Transfer Act the defendant may show cause why he refuses to give possession of the property.
On the affidavit evidence and on the submissions made by Counsel I am not satisfied that the Defendant has shown cause as to why he
refuses to give possession of the property. I find that he was a month to month tenant and has been paying the rent including the
increased rent. It is agreed that although he purchased the stock relating to the Plaintiffs' business, the tenancy and occupancy
of the business premises are separate issues. Proper notice to quit was given but he has failed to comply with it. There is no agreement
subsisting between the parties and therefore on the facts and circumstances of this case the Plaintiffs were entitled and free to
sell the property to someone else.
I am not satisfied that the Defendant has shown cause as to why he should remain in possession of the property.
The Plaintiffs are entitled to immediate vacant possession as prayed for in the Summons herein and I do so order with costs against
the defendant.
D. Pathik
Judge
At Suva
17 June 1998
Hbc0167j.98s
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/1998/80.html
