IN THE HIGH COURT OF FIJI
At Suva

Civil Jurisdiction

CIVIL ACTION NO. 0183 OF 1994

Between

CENTRAL RENTALS LIMITED
Plaintiffs

and

PATTON & STORCK LIMITED
Defendants

Counsel: Ms. A. Neelta for the Plaintiffs
Ms. B. Narayan for the Defendants

Dates of Hearing: 2nd March 2007
Date of Ruling: 5th March 2007

RULING

[1] On 17th November 2006 I gave judgment for the plaintiffs in this case. I ordered that the plaintiffs were entitled to immediate vacant possession of the land in question and monetary relief. On the 7th December 2006 the defendants appealed that judgment. They sought stay of execution pending the appeal and by a Ruling dated 11th December 2006 I granted
that stay subject to certain conditions. The only dispute before me now concerns condition number 1, which reads,

"By 3:00 pm on 19th December 2006 the defendants pay to the plaintiffs all outstanding rents/ profits and any other sums due to date under the terms of the lease."

[2] The defendants say that the sum to be paid under condition 1 is between $15,000 and $17,000. The defendants say that the correct sum is $195,652.00. The matter is before me for resolution of this issue.

[3] The defendants appealed the stay ruling to the Court of Appeal. The single Judge ruled that,

"Case to be re-listed before Coventry J and to hear the application for variation of order for stay. Papers filed in this court in pursuance of the appeal to be passed to the High Court. I request the court to deal with it as soon as reasonable."

[4] The summons asks that the "ruling be amended by deleting the words "all outstanding rents/ profits and any other sums due" and instead to state "only the mesne profits due to date under the terms of the lease" ... and the time for the payment stipulated in the said condition be extended."

[5] Counsel for the plaintiffs objected to my hearing this application. She states that this court is functus officio. She states that she was not given the opportunity to raise this issue before the Court of Appeal. In support, the case of Re V.G.M Holdings Limited ([1941], 3 ALL ER, p.417) is cited. The head note to that case states,

"Where a Judge had made an order for a stay of execution which had been passed and entered, he is functus officio and neither he nor any other judge of equal jurisdiction has jurisdiction to vary the terms of such stay. The only means of obtaining any variation is to appeal to a higher tribunal."

[6] Counsel for the plaintiffs states that it is clear from the face of the defendants' summons that a variation is sought and this cannot take place.

[7] In response, counsel for the defendants says that the matter was returned from the Court of Appeal. In any event, what is being sought is not a variation but clarification. She says it is not clear from the original Judgment and the Ruling upon stay quite how the figure contemplated in paragraph 1 of the stay order is to be calculated.

[8] I accept that this point has been correctly taken by the plaintiffs' counsel. However, it would benefit no one for there to be protracted, procedural interlocutory proceedings. The reality that what the defendants seek is clarification of how the sum is to be calculated so that money can be paid and the stay of execution become effective. I accordingly order that the defendants summons be amended by deleting the request for a variation and inserting a request for clarification of condition 1.

[9] The defendants have based their calculation on what is to be paid under condition 1 on the monthly rental due under the lease for the years concerned, the rental notionally or actually paid to the defendants by the unlawful subletting of the premises to Mrs. Turaganivalu, Mishra & Co and the parkers of cars. Counsel states there is sufficient clarity in the judgment to calculate these sums and the total of them is what should be paid. Both counsel have agreed that as far as the residential letting and the commercial letting are concerned the rate should be £400 per month. The charge for rental of car parking space varies, but there is no real argument about a figure of $25.00 per month.

[10] The plaintiffs respond that £20 per month under the lease is due. Further, these were all unlawful sublettings over a long period of time and thus the defendants must pay a sum equal to that which would have been paid had Mrs. Turaganivalu, Mishra & co and the car parkers been in occupation throughout the whole period concerned.

[11] I can no find that the plaintiffs would be entitled to insist that the defendants pay a sum which covered the entire period as though the domestic and commercial tenants had been there throughout. The reality is that they were only there for limited periods of time. I have made findings of fact this effect in the original judgment.

[12] In the circumstances, I consider the most expeditious way of resolving this dispute is to fix a specific figure based on the findings in my judgment. This does not cause great difficulty as far as the domestic and commercial sublettings were concerned, there is some vagueness, which I will resolve, over the car park subletting. No further argument will be accepted over the total sum set out below.

[13] Accordingly I make a calculation as follows:-

1.	Lease rental from July 1993 to December 2006 at $20 per month	- $3240.	
2.	Sub lease rental in respect of Mrs. Turaganivalu Twelve months from 1991 to 1992 at $400 per month	- $4800	
3.	Commercial rental in respect of Mishra & Co from September 1993 to August 1994 at $400 per month	- $4800	
4.	Car park rental 91 – 92 (4 cars, 12 months at $25 per month)	- $960	
5.	Car park rental 96 – 97 (4 cars, 12 months at $25 per month)	- $1200	

	Total	$ 15,000	

I do not have before me the rates of VAT for the periods in question.

I trust that counsel will be able to agree the rates and the sums concerned to arrive at the final figure which should be paid under condition 1 of the stay.

[14] I extend the time for compliance with condition 1 until 3:00 pm on the 19th March.

[15] To ensure there is no further dispute I emphasise that "costs" in condition 3 refers to the usual legal costs in a case. The figure to be paid into Court under condition 3 is $5000. By its wording, condition 3 does not limit the plaintiffs to $5000 costs should they be successful in the final event.

[16] Counsel for the plaintiffs has taken exception to the annexing of some of their "without prejudice" letters in an affidavit of the defendants. There is no basis in law in the confines of this case for those letters to have been exhibited. It should not have occurred. I see no point in giving a ruling upon another letter which is said to be privileged and sent "without prejudice" although it is not formally so headed. I am aware of the unprofessional practice of putting in such letters to influence the Court and apologising when issue is taken over them, saying it was an oversight. I have presumed in this case it was an oversight.

[17] 1 will hear the parties on costs.

(R.J. Coventry)
JUDGE