IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0191 of 2004L

BETWEEN:

REX BASIL HOLLOWS
Plaintiff

AND:

JERALD EDWARD SCOFIELD
Defendant

Counsel for the Plaintiff: Mr. V. Mishra
Counsel for the Defendant: Mr. W. Clarke

Date of Hearing: 9 February 2005
Date of Judgment: 17 February 2005

JUDGMENT

The plaintiff seeks leave to appeal the decision of the court dismissing the plaintiff’s notice of motion and summons delivered on the 8th December 2004. The plaintiff also seeks a stay of the judgment and an extension of caveats lodged on the titles to the subject land. In support of the application, the plaintiff relies on an affidavit sworn on the 13th December 2004.

Counsel for the plaintiff and the defendant filed their outlined submissions and made oral submissions on the hearing of the summons.

Background

The plaintiff by summons filed on the 18th October 2004 sought inter alia an order that “The defendant do specifically perform the agreement dated 6th of June 2004 as varied by fax from Mr. Bob Smith of Munro Leys dated the 19th day of November 2003 between the parties”.

A declaration that “The defendant attempts to terminate the agreement between him and the plaintiff is null and void and/or ineffective”.

The parties filed written submissions. The plaintiff at page 8 of his submissions said:

“We submit that the central focus of this case which is central to all three applications before the court is:

1.	Whether the defendant was entitled to terminate the agreement.

2.	Whether the notice to terminate was properly served on the plaintiff.

3.	Whether the notices dated 27th February 2004 and 15th March 2004 in effect terminated the agreement with the plaintiff.”

The defendant similarly submitted that the real issue was whether the defendant validly terminated the agreement.

The plaintiff in a Notice of Motion dealt with simultaneously sought to extend caveats lodged by him on the subject land.

The Law

Section 12 (2) (f) of the Court of Appeal Act requires leave to be granted for an appeal from any interlocutory order or interlocutory judgment.

The test as to whether an order or judgment is interlocutory or final has been expressed by the Full Court of the Supreme Court of Victoria in Niemann v Electric Industries Ltd [1978] V.R. 431 as depending on the nature of the order or judgment and not on the nature of the application.

The test advanced by Lord Alverstone CJ in Bozson v Altrincham UDC [1903] 1 K.B. 547 at 548 – 549 is:

“Does the judgment or order as made, finally dispose of the rights of the parties? If it does then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.”

The Leave Application

As submitted by Counsel the “real issue that this entire case rests upon is whether the defendant validly terminated the 2003 Sale and Purchase Agreement”.

I am of the opinion that the judgment does finally dispose of the rights of the parties as to the termination of the agreement. It had to do so to determine the plaintiff’s summons for “interlocutory” relief.

Leave to appeal is therefore not required.

The Stay Application

As the relief sought is specific performance of a contract for the sale of land, damages are not an adequate remedy. The normal rule in land contract cases is that specific performance is available. In Pienta v National Finance and Trustees Ltd [1965] ALR 737, the purchaser obtained specific performance even though it was buying the land for the purposes of development and profit.

In Loan Investment Corporation of Australasia v Bonner [1970] NZLR 724 at 745, the Privy Council said:

“In my opinion, once the contract is seen as a contract for the purchase of land on the stated terms, the case for specific performance is unanswerable” (Barwick of Australia as a member of the Privy Council).

A stay therefore would seem appropriate in the circumstances to avoid the appeal being rendered nugatory.

Similarly the caveats should be extended. However the conduct of the plaintiff has been such that any delay on the part of the plaintiff must result in the stay being revoked and the caveats lapsing.

As the application for leave was unnecessary and as a stay has been granted, it seems appropriate that each party should pay their own costs.

Orders of the Court

1.	Leave to appeal is refused.

2.	Caveats 541260, 541261, 541262, 541278 registered against Certificates of Title 7136, 7138, 7140 and 20489 are extended until further order of the court.

3.	The judgment of the 8th December 2004 is stayed.

4.	Orders 2 and 3 will be revoked on the failure of the plaintiff to comply with any timetable set by the Court of Appeal or with any Court of Appeal rule or in any way failing to prosecute the appeal without delay.

5.	Any appeal is to be lodged within 7 days. Failure to do so will automatically revoke Orders 2 and 3.

6.	Each party to pay their own costs.

JOHN CONNORS
JUDGE
At Lautoka
17 February 2005