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Lautoka City Council v Go Forward Investments (Fiji) Ltd [2010] FJHC 217; HBC110.2008 (29 June 2010)

IN THE HIGH COURT OF FIJI AT
LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 110 of 2008

BETWEEN:

LAUTOKA CITY COUNCIL
a body corporate duly established under the provision of the Local Government Act Cap 125.
Plaintiff

AND:

GO FORWARD INVESTMENTS (FIJI) LIMITED
a limited liability company having its registered office at Lot 23 Latui Road, Wailada, Lami.
Defendant

Before: Master Anare Tuilevuka

Counsels: S.B. Patel for the Plaintiff
MC Lawyers for the Defendant

Date of Ruling: 29th of June 2010

RULING
(Costs)

INTRODUCTION

[1]. What I have to consider in this case is what costs to award the Lautoka City Council. The cause of action has more or less abated. But that was preceded by what appears to be a series of acts on the part of the defendant which, from where I sit, were a deliberate and flagrant flouting of the law.

[2]. As will be clear in the discussion that follows, the Lautoka City Council (LCC) has had to institute these proceedings because of the attitude that the defendant took. And there is no doubt that LCC is entitled to costs. But how much?

BACKGROUND

[3]. The defendant owns CL 16327 Pt of Drasa & Vitogo on SO 4030. That land was zoned residential B. Under the General Provisions of the Lautoka Town Planning Scheme namely Provision 9 Schedule A, general industrial development is not permissible on such land.

[4]. On 8th November 2006, the defendant applied to the Lautoka City Council for permission to develop the land for future subdivision for industrial purposes.

[5]. The LCC however informed the defendant by letter dated 4th December 2006 that it could not process the application unless the land was first rezoned. LCC then instructed the defendant to apply for rezoning. However, on 9th January 2007, the defendant lodged another application seeking LCC’s permission to develop and subdivide the land for use as a container yard.

[6]. LCC refused the application. By letter dated 26th February 2008, LCC reiterated its earlier instruction that unless the land was first rezoned, the defendant’s application could not be processed. LCC then again requested the defendant to lodge an application for re-zoning.

[7]. As it turns out, the defendant commenced excavation and other development work on the land in September 2007 and only stopped when LCC issued a stop work notice by letter dated 18th September 2007. Two days later, on 20th September 2007, the defendant lodged an application for rezoning.

[8]. The no-stop work however was to be shortlived. It appears that immediately after it lodged its rezoning application, the defendant resumed excavation and development work on the land, even in the face of repeated warnings by LCC.

[9]. The defendant now concedes that the development work they carried out was in contravention of Provision 2 (1) and (2) of the Lautoka Town Planning Scheme and By Law 3 of the Lautoka (Subdivision of Lands) By Laws. That much is plain and obvious from the lack of any statement of defence filed on its behalf.

[10]. But that concession on the part of the defendant is not one that has just happened now with the benefit of hindsight. Rather, it is clear that the defendant knew then, before it even acted, that it would have to deliberately and flagrantly flout the law to persist in carrying out excavation work on its land in question.

DID LCC HAVE TO FILE THIS ACTION AND OBTAIN AN INJUNCTION?

[11]. The attitude that the defendant took vis a vis LCC’s instructions prompted LCC to file a Writ and Statement of Claim seeking various declarations on 11th June 2008 filed together with that is an application seeking an injunction to restrain the defendant from carrying out development works on the property.

[12]. On 20th of June 2008, Madam Justice Phillips granted an injunction against the defendant on an undertaking by the defendant’s counsel to pay damages.

[13]. The defendant submits that the injunction obtained by the plaintiff was totally unnecessary because the plaintiff had other avenues available in the Public Health Act and also under section 27(1) of the Town Planning Act, Cap 139. The defendant submits that the plaintiff could have laid criminal charges against the defendant. The only issue in the criminal proceedings is that if the defendant was found guilty, it would have walked away with a fine of about a $100.00 as per section 27(5) of the Town Planning Act. The defendant submits that the engagement of a private solicitor if only to obtain an injunction is a “luxury” that the plaintiff could have avoided, having regard to the fact that it has powers to prosecute and has prosecution officers available on its payroll.

[14]. I do not accept that argument.

[15]. In Stafford Borough Council –v- Elkenford Ltd [1977] 2 ALL ER, the principle is set out in the head notes as follows:

“Where a company was deliberately organizing and maintaining a system which was designed to break the provisions of a statute and was relying for its existence on breaches of the statute, the High Court had a reserve power to enforce the statute, by injunction or declaration, even though the authority responsible for enforcing the statute had not exceeded the possibility of restraining the breaches by the exercise of the remedies provided by the statute

Per Lord Denning MR. When there is a plain breach of a statute, the authority concerned can take proceedings in the High Court before any other proceedings are even started. It is open to the court in its discretion to grant an injunction straightaway when the breach of the law is plain and there appears to be an intention by the defendant to continue with the breach ”.

[16]. Obviously in this case, it was clear that the defendant had every intention to commit further breaches, but for the injunction.

[17]. The pleadings will show that despite various advice and clear directions from LCC to the defendant to first apply for rezoning before seeking for permission to carry out industrial development on the property, the defendant did carry out development work anyway. It only stopped when the injunction was ordered. Clearly, then, those “other avenues”, if they were ever invoked, would have proved inadequate in restraining the defendant.

PROGRESS OF CASE IN COURT

[18]. The defendant submits that thereafter the injunction, the matter was not called in Court until the application to dissolve the injunction was filed by the defendant.

[19]. The court records however do not bear that out. The records will show that the case was called on the following dates after the granting of the injuction.

• (a) 25th July 2008 when only Mr. Patel appeared and the order was thereby extended to the 15th of August 2008.
  
• (b) 15th August when the case was then adjourned to 14th of October 2008 when again only Mr. Patel appeared.
  
• (c) 14th October 2008 when again only Mr. Patel appeared and the order was extended to 9th of February 2009.
  
• (d) 9th of February when only Mr. Patel appeared and the case was then adjourned to 15th of April 2009.
  
• (e) Thereafter the case was not called in Court though various Notices of Adjourned Hearing were sent out by the Registry returnable on 15th May 2009 and 18th June 2009.
  
• (f) 18th of September 2009 being the returnable date for the application by the defendant to dissolve the injunction.
  
• (g) 16th of October 2009 when Mr. Patel appeared and advised that he would consent to dissolving the injunction if the defendant was prepared to pay costs on an indemnity basis.
  
• (h) 6th of November 2009 when the date for hearing on assessment of damages was heard.
  
• (i) 13th of November 2009 – hearing.
  

[20]. On the 18th of September 2009, the returnable date of the Summons to dissolve the injunction, Mr. Patel appeared and sought 14 days to file an Affidavit in answer. The case was then adjourned for hearing to 16th of October 2009.

[21]. On that date, Mr. Patel appeared and advised that his client does not mind an Order discharging the injunction as long as the defendant is prepared to pay costs on a solicitor-client basis. Ms Maharaj is on my record to have retorted as follows:

“They seek $8,000 plus. Costs could be taxed if not agreed. Seek dissolve injunction today”

[22]. The case was then adjourned to 16th November for hearing on taxation of costs.

[23]. An affidavit of Pusp Raj filed on 15th of October 2009 deposes that the LCC:

“...is ready and willing and able to discontinue the action upon the condition the defendant pays costs incurred by the plaintiff in the sum of $8,827.46 already paid by the Lautoka City Council to its solicitors and further costs as fixed by the Court”.

UNDERTAKING AS TO DAMAGES

[24]. The defendant submits that LCC had not provided a proper undertaking as to damages in this case.

[25]. The relevant principle was discussed by Mr. Justice Inoke in Nadi Town Council v Gosai [2009] FJHC 169; HBC054.2008L (20 August 2009):

“The Nadi Town Council has a duty imposed on it by law to ensure that the zoning laws are complied with and that nuisance does not result from breaches of those laws. As Counsel for the Council submitted, s 25 of the Town Planning Act charges the Council with the responsibility of ensuring that the town planning scheme is adhered to. The section provides:

"When a scheme has been finally approved by the Director as aforesaid it shall be the duty of the local authority to observe and to enforce the observance of the requirements of the scheme in respect of all development of any description thereafter undertaken within the area to which the scheme applies, whether by the local authority or by any person, and, save with the consent in writing of the Director, the local authority shall not thereafter undertake or permit any alteration or modification of any existing buildings or works if such modification or alteration would tend to prevent or delay their being brought into conformity with the requirements of the approved scheme."

Even Counsel for the Defendants submitted that section 54 of the Public Health Act imposes a duty on the Council to inspect property and ensure abatement of nuisances.

In this situation, the question of adequacy of damages does not arise in my view, simply because of the fact that the duty to act is imposed by law. The need to act is for the benefit of the public. Damages are clearly not an adequate remedy or even a remedy to be considered.

As I have said above, the giving of an undertaking to damages by the Council is totally unnecessary. The Council’s obligation to act should not be restricted or prevented simply because it did not give an undertaking or that its undertaking is inadequate. Counsel for the Plaintiff also submitted that his client is immune from a claim for damages for complying with its obligations under the Town Planning Act by virtue of s 29(2)(h).

[26]. On the above authority, I dismiss the defendant’s submissions on the point.

BASIS OF $8,827.46?

[27]. Notably, Pusp Raj’s affidavit does not annex any documentary basis to explain why the LCC is asking for $8,827.46 in costs. A Bill of Costs by LCC’s lawyers or an invoice to the amount claimed might have helped a lot.

[28]. So, as there is nothing before me on which to even begin the task of taxing, I will try my best to assess costs summarily by comparing with other similar cases.

[29]. Ms Maharaj is on record to have undertaken on behalf of the defendant to pay costs to be taxed if not agreed. As I have stated, there is nothing for me to tax. All I have before me is the figure of $8,827.46 which Mr. Pusp Raj appears to have plucked out of thin air.

[30]. I note that in Nadi Town Council v Gosai, Mr. Justice Inoke awarded the sum of $3,000 in costs against the defendant. In that matter, the case was adjourned eleven (11) times.

CONCLUSION

[31]. Costs are awarded at the discretion of the Courts. The general principle is that costs follow the event. It would be a sorry state of affairs if our local governments started to feel that the only effective way they could enforce the local government laws and by-laws would put them out of pocket without being properly indemnified in costs by a recalcitrant party.

[32]. As Inoke J observes, these councils perform an important duty to protect the public interest and their need to act is for the benefit of the public.

[33]. On the other hand, I am mindful that whatever costs is ordered must be kept within reasonable proportions.

[34]. Doing the best that I can, and using Nadi Town Council v Gosai as a guide (which case is not too dissimilar from the one before me now) I award costs to Lautoka City Council in the sum of $3,000-00 (three thousand dollars) to be paid in 21 days from the date of this ruling.

Anare Tuilevuka
MASTER

29th of June 2010.
At Lautoka.