Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Singh v Hith [2007] FJHC 122; CA No 0124 OF 2005 (22 February 2007)

IN THE HIGH COURT OF FIJI
AT SUVA

Civil Jurisdiction

CIVIL ACTION NO. 0124 OF 2005

BETWEEN

INDAR BRAN SINGH
Plaintiff

AND

1. RAM HITH
2. MRS RAM HITH
Defendants

Counsel: Ms. M. Chan for the Plaintiff
Mr. S. Chandra for the Defendants

Dates of Hearing: 19^th and 20^th February 2007
Date of Judgement: 22^nd February 2007

JUDGMENT

[1] The plaintiff, Mr. Indar Bhan Singh, and the defendants, Mr. and Mrs. Ram Hith, used to be friends. That is no longer so. The plaintiff says that he asked the defendants to sell a house on his behalf and he offered to pay $2,000 commission. He says the defendants agreed to do this but stated as they were friends and Mr. Singh had done many favours for them, they would not seek any commission. The plaintiff says $17,495 is still owing to him.

[2] The defendants respond that this was not the agreement. They state that Mr. Sigh was anxious to have the money quickly, that he was happy with $50,000 from the sale and anything more they could keep for themselves. In the alternative they say that if this is not the agreement then the plaintiff should pay them their reasonable expenses for the sale amounting to $10,475.

[3] The house was sold for $72,500.

[4] I have heard the evidence of Indar Bhan Singh himself and for the defendants the evidence of Mr. and Mrs. Ram Hith and Litia Vurewa Deo. I also have before the plaintiff's bundle of documents and further supplementary bundle of documents. I have the defendants' bundle of documents and their supplementary bundle of documents. I say at the outset that I disregard plaintiff's document number 25 [p25] the statement of Basanti Kumari Prasad. This was not filed until two working days before the first day of hearing and does not in any way begin to meet any provisions which would make it admissible. The remaining documents produced by the parties in their various bundles are accepted as admissible.

[5] In essence this case is a question of the credibility and reliability of the parties. In this regard, some of the documents do assist me in reaching my conclusions.

[6] Mr. Singh told the court that the friendship between himself and the defendants had subsisted for many years. He is an accountant and had helped in thier businesses with accounting matters. In turn they had assisted him in personal matters from time to time. Both he and the defendants live in Australia either temporarily or permanently and have business there.

[7] Mr. Singh states that in 2002 Mr. and Mrs. Hith were at his offices in Sydney when he asked if they would sell a house and surrounding land in Fiji on his behalf. He offered them $2,000 commission to do this. He states that Mr. and Mrs. Hith agreed they would do this for him but, in the light of their friendship and what he had done for them, they said they would not accept the $2,000 commission.

[8] Mr. and Mrs. Hith were not sure which of them would be in Fiji when formal documents would have to be signed. Mr. Singh therefore gave them each a power of attorney. The house was in fact sold and a cheque for $72,500 was made out on 6^th November 2002 by Prem Narayan, Mr. Singh's lawyer, to Raj Devi, [P2]. Mrs. Ram Hith is known as Raj Devi. That sum was deposited in Mrs. Ram's deposit account on 8^th November 2002, [see document 2, P4].

[9] Mr. Singh says he did not require payment of the sum immediately as Mr. and Mrs. Hith had told him that they wanted a substantial balance to show to the Australian immigration authorities. Over the ensuing months various sums were paid to Mr. Singh. He says he kept a schedule of these payments [P4] and regularly gave Mr. and Mrs. Hith copies of it.

[10] That schedule shows the last payment as being on 20^th July 2003 when $2,000 was paid to Mr. Singh's direction leaving a balance of $19,495. Mr. Singh said he was frequently ringing to get them to pay money as he directed. He said they simply did not do so.

[11] On the 2^nd February 2005 [P21] he wrote to Mr. Hith in Fiji referring to a conversation on the 1^st of February. He asked for payment of $4,500 to Mr. Prem Singh, a relative, and that a written receipt be obtained. He stated the total amount then owing was $19,495. He reiterated his promise to pay $2,000 commission and that after payment of those two sums that would leave a balance owing to him of $12,995. He concluded the letter by stating "Could you please organise to pay me as soon as possible as I have waited for the money since 8^th November 2002".

[12]] Although Mr. Singh claims $19,400 in the Statement of Claim he says he is still willing to keep his promise and pay the $2,000 commission, therefore his claims is for $17,495. The $4,500 was not paid to his relative Prem Singh. He also claims interest on that sum at 13.5% , the cost of travelling to Fiji twice to chase up the monies, for his lost time in preparing for this case and coming to court and similar items.

[13] Mr. and Mrs. Hith do not accept the plaintiff's evidence. They stated that the conversation asking them to sell the house took place in Fiji. They say that Mr. Singh was anxious to raise money quickly but, because of divorce proceedings, was content to allow the money to remain in Mr. Hith's account so it would not come to the notice of those dealing with the property settlement in his divorce. Mr. and Mrs. Hith state that the agreement was that they would pay him $50,000 and anything above that they could keep. They called as a witness Litia Vurewa Deo who stated she heard the conversation in which this offer was made. There was no mention of a $2,000 commission.

[14] Mr. and Mrs. Hith say they put in a lot of work to sell the property in the form of advertising, driving about in their vehicle or taxis deal with the purchaser, seeing the lawyer, attending to legal matters as attorney, loss of business from their own pawnshop when they had to close it to attend the plaintiff's business, making arrangements to remove the tenants who were reluctant to go and travelling to Sydney on two or three occasions to discuss the sale with Mr. Singh. They say the total of those expenses comes to $10,475. They ask the court to either award $22,500 or if that is not accepted then at least $10, 475, their reasonable expenses in selling the property.

[15] Mr. Singh rejected all these claims. He states that $22,500 commission on a $72,500 sale is grossly out of all proportion. He states he could have sold the property a few years early for a sum only a few thousand less than the one it was sold for. Further, he states that at no time was there any kind of agreement or arrangement they would formally act as sale agents. He challenges the figures and also alleges they are exaggerated, for example $1500 for transport cost and $3,400 for two or three trips to Australia. He states that there are no documents to support the defendants counterclaim and these are rounded figures picked at random.

[16] Mr. and Mrs. Hith accept they do not have documentary support for their counterclaims but state that formal receipts were not collected as this was an arrangement between friends and in any event those document that they did have had been lost in various burglaries at their premises. They continued that Mr. Singh was not correct when he alleged that he had given them copies of his schedule of payments, [P4], from time to time. They set out a schedule of particulars of payments in the counterclaim [see paragraph (iv)(a)] and this had principally been complied from the withdrawals from Mrs. Hith's passbook. They stated that by a letter of the 28^th of May 2004 [D4] they specifically requested "A breakdown of dates and amount of money received by you". They each signed an identical letter to that effect and put it in one envelope to Mr. Singh.

[17] I now look carefully at the evidence of each witness in turn.

[18] I accept the evidence of Indar Bhan Singh. I found him to be truthful and reliable. The documents which were made at or before the commencement of these proceedings are consistent with what he says. I do not accept that he would simply handover nearly a third of the sale price of the property, even as a gesture of friendship. Before the sale figure was agreed he already had an idea of what the property was worth.

[19] I accept that he kept a schedule of monies paid from the sale receipts, P4, and that is consistent with other documents, in particular the bank passbook of Raj Devi.

[20] I do not know why the plaintiff and the defendants relationship turned from one of friendship to animosity. I need not make any specific findings as to the motives ascribed by each of the parties to the other for dealing with the monies in the way they suggest.

[21] I have looked carefully at the evidence of each of the defence witnesses, namely Mr. Ram Hith, Mrs Ram Hith, Raj Devi, and Litia Deo. I do not accept their evidence. The evidence of both Mr. and Mrs. Hith was inherently not believable and was inconsistent with the documents before me.

[22] In my judgment, the counter claim lacks foundation. There is no mention of the defendants asking for their expenses allegedly incurred in the sale before the commencement of these proceedings. In the first defence filed on behalf of Mr. Ram Hith he allege he had been wrongly joined as a party to the proceedings and had nothing to do with the matter yet in evidence the accepted that he had been involved in the sale of the house. In this regard there were also inconsistencies between what he said in examination in chief and in cross examination.

[23] In the first defence of Mrs. Ram Hith she states that she had paid the plaintiff the sum of $60,950 and the remaining sum of $11,550 was kept by her "being commission for the services rendered in securing the sale of the plaintiff's property". There is no mention in that defence of Mr. Singh stating that they could keep the balance of the sale price above a figure of $50,000. It is not until over a year later that it is suggested in the alternative that the agreement was for the keeping of any excess over $50,000. That amended defence is the first time that the defendants claimed their "cost and expenses".

[24] It is pertinent to note that in that counterclaim under the heading "Particulars of costs and expenses" all the sums claimed under the various heads are round figures, many of those figures are inherently unbelievable [$1,500 for transport costs, see D3] there are no documents to support the counter claim save for one page from Raj Devi's passport showing she arrived in Fiji on 24^th March 2003 and left Australia on 9^th June 2003, [D5, second document].

[25] I do not accept Mr. and or Mrs. Hith made trips to Australia specifically to talk to Mr. Singh about this arrangement. Telephone calls would have sufficed. Mr. and Mrs. Hith had unrelated business interests in Australia which they were required to attend to. If the agreement had been that Mr. and Mrs. Hith could keep any excess over $50,000 then it is beyond comprehension why they should pay $60,905 [or $60,950 see the inconsistency in the pleading] to Mr. Singh or at his direction when they only owed him $50,000. I could accept that there might have been an error of a few hundred dollars if a proper list had not been kept. However, I do not believe that Mr. and Mrs. Hith inadvertently or as a matter of friendship overpaid Mr. Singh by in excess of $10,000.

[26] A reading of the joint letter from Mr. Hith and Raj Devi to Mr. Singh dated 28^th May 2004 [D4] is not consistent with the evidence they gave to the court. Raj Devi told the court that they had not received any list of payments from Mr. Singh. However, in paragraph 1 of that letter she accepts that a list or lists had been provided by Mr. Singh but they showed "Nowhere that you have received the money". When asked in evidence by counsel for the plaintiff what was on the list that had been provided, Mrs. Hith avoided the question. The court asked her to address her mind to the question and again she avoided it.

[27] At paragraph 2 of that letter Mr. and Mrs. Hith ask "Would you please kindly write down that you Indar Bhan Singh have received the money from the sale of your land at Nakasi and also the balance owed to you by me". By May 2004 the defendants had paid $60,905, [or $60,950]. The bank passbook was available to them so they could have gained a reasonably accurate figure of what had been paid. Yet both signed an identical document asking Mr. Sing to tell each of them "The balance owed to you by me". This is inconsistent with the evidence to the court.

[28] Neither Mr. nor Mrs. Hith could produce a document to show that they were claiming specific expenses for the sale of the house before the filing of the amended defence and counterclaim.

[29] It was clear in cross examination from time to time that Mr. and Mrs. Hith would adjust their evidence to meet the questions without regard as to whether those answers were consistent with what had been said in chief.

[30] I have also considered the evidence of Litia Deo. I do not accept her evidence. It was recited in the manner of a learnt story and not as a product of genuine recollection. She provided no detail beyond the bare outline of a conversation in which allegedly Mr. Singh had agreed that the defendants could keep the excess over $50,000. Indeed, had that been truthful, then the defence and counterclaim from the outset need only have been for $22,500 less the amount they still held.

[31] In the circumstances I give judgment for the plaintiff, Mr. Indar Bhan Singh, in the sum of $17,470. That is the sum of $19,495 [P4] less the $2,000 commission which he stated he was still willing to place to the credit of the defendants. He conceded a bill for $25.

[32] Interest has been claimed at 13.5% from 8^th November 2002 until payment. There was no agreement or even, on the evidence, a request for the payment of interest from receipt by the defendants of the $72,500. Further, even on the plaintiff's own evidence, he did not ask for the entire sum to be remitted to him in one lump but directed that some be sent to him, some to relatives and some for the discharge of debts. In the circumstances, I cannot award interest on the judgment sum from 8^th November 2002. I will give interest on the sum from the date of filing of the writ in this action namely 22^nd March 2005. The defendants have had the use of the plaintiff's money and the interest which accrued under the passbook account. The normal rate of interest is 4 - 5%, given the circumstances I will award 10% from the date of judgment until payment.

[33] Counsel for the plaintiff has asked for exemplary damages. This is not pleaded in the claim. Counsel argues that in itself does not preclude the court from making an order and she cites supporting authority. I do find that this is not, in any event, a case for exemplary damages. It is simply a case where the defendants received monies belonging to the plaintiff and only paid over some and not all of what was due to him.

[34] The plaintiff has claimed that he should be paid for the hours lost to him in pursuing payment of the sums and the bringing and pursuing of this case. He asks for his hourly rate as an accountant. As he is the plaintiff in this case I am not able to award such sums. He claims and he is entitled to the costs of pursuing the sum and bringing this action. I have evidence from him concerning phone calls, airfares, etc. In my judgment it would be counter productive in terms of time to carry out a detailed analysis of these costs. Accordingly therefore I assess those costs at $3,500. This sum does not include legal costs and disbursements.

[35] The plaintiff has sought indemnity costs. Again, this is an item which should have been pleaded but was not. This is a matter for discretion. There was little documentation that supported the defendants' case. Their counterclaim only arose after each had put in a defence which was not consistent with their amended defence and counterclaim. I have specifically rejected their evidence and that of their witness, and in particular I have found that their witness was relaying a learnt story.

[36] I consider an award of indemnity costs can and should be made. I will hear counsel as to whether a figure should be assessed of there should be taxation.

R.J. Coventry
JUDGE