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Nakavulevu v Kumar [2010] FJHC 4; HBC043.2006L (18 January 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 43 of 2006L

BETWEEN:

RATU PECELI NAKAVULEVU
Plaintiff

AND:

SHAILENDRA KUMAR
Defendant

FINAL JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr D Gordon for the Plaintiff
No appearance for the Defendant

Solicitors: Koyas for the Plaintiff
No representation for the Defendant

Date of Hearing: 10 December 2009
Date of Judgment: 13 January 2010 delivered on 18 January 2010

INTRODUCTION

[1] This is the Plaintiff’s formal proof of his claim for damages against the Defendant. The claim arose out of a contract for the purchase of land.

[2] The Defendant did not appear either in person or by legal representation, his previous lawyers having withdrawn in 2008 and he not appearing in Court despite several Notices of adjourned hearing having been sent to him.

FORMAL PROOF

[3] The Plaintiff, Ratu Peceli Nakavulevu, gave evidence that he entered into a contract to purchase land belonging to one Surendra Nath on 11 October 2002. His Counsel tendered a copy of the contract into evidence. The material terms of the contract were that he was to pay a deposit of $2,500 upon execution and the balance of $19,500 was to be paid by monthly instalments of not less than $500 commencing on the last day of November 2002 until the whole amount is paid off in full. The date of settlement was to be 14 days after full payment on which date Surendra Nath was to hand over a registrable transfer and the Certificate of Title.

[4] Ratu Peceli paid the $2,500 on the day of execution of the contract. Surendra Nath then gave him his bank account number and a book of deposit slips. At the hearing, he produced a number of original deposit slips to the Colonial National Bank totalling $22,000. He said that up to July 2003 he was dealing with Surendra Nath. After Surendra Nath died, he went and sought advice from his solicitors who advised him to continue payments which he did by paying into the account of Surendra Nath’s son, Shailendra Kumar, the Defendant in this action. The account number was given to him by his solicitor’s clerk. After he paid the purchase price in full, he went and saw Shailendra Kumar and his wife and showed them the deposit slips. Shailendra Kumar despite agreeing that the full amount had been paid asked for $3,000 more for looking after his father’s property. Ratu Peceli did not pay the extra money but instead went and saw his solicitors who filed this action. He was studying in Suva and had to travel by minibus to see his solicitors in Nadi and was claiming the costs of his travel.

[5] The clerk from Ratu Peceli’s solicitors gave evidence that he prepared the contract and witnessed the parties’ signatures. He confirmed that Surendra Nath left a deposit book with Ratu Peceli who made payments to Surendra Nath’s bank account. He confirmed that his firm took out Letters of Administration after Surendra Nath died in his son’s name, Shailendra Kumar. The copy of the Letters of Administration tendered into evidence showed that Surendra Nath died on 1 July 2003 and administration granted on 24 November 2003.

[6] A certified copy of the Certificate of Title was also tendered into evidence. It showed Shailendra Kumar transferred the land from his father to himself first as administrator then in his own right as registered proprietor on 18 June 2004. He then transferred the property to one Sanjay Naicker on 8 December 2005. The property has been further transferred to another person.

[7] The third witness called for the Plaintiff was the Branch Manager for the Colonial National Bank in Nadi. She produced originals of the bank statements for the two accounts and verified the payments as per the deposit slips. The first account was closed on 20 April 2004 and the further deposits were made to the second account. She confirmed that the second account belonged to Shailendra Kumar, father’s name Surendra Nath. The last deposit to that account by Ratu Peceli was made on 24 November 2005. That account was closed on 30 May 2006.

[8] I am satisfied that Ratu Peceli entered into a contract for the purchase of land belonging to Surendra Nath and that he paid the full purchase price at the direction of Surendra Nath and following his death at the direction of his son, the administrator of his estate and Defendant in this action. He was therefore entitled to receive a registrable transfer and be registered as proprietor of the land. The Defendant did not and could not comply with his obligations under the contract and is therefore in breach.

[9] Clause 14 of the contract provides:

If the Vendor shall make default in the performance or observance of any stipulation or agreement on the Vendor’s part ... and if such default shall continue fro the space of 14 days from the due date then ... the Purchaser ... may at his option exercise all or any of the following remedies:

(a) May rescind this contract of sale and thereupon all monies theretofore paid or under the terms of sale applied in reduction of the purchase money shall be refunded to the Purchaser without deduction.

(c) May sue for special and general damages.

[10] The contract has been validly rescinded: Khan v Native Land Trust Board [2009] FJHC 216; HBC198.2006L (23 September 2009). Ratu Peceli is therefore entitled to repayment of the full purchase price of $22,000.

INTEREST

[11] The Plaintiff is entitled to interest under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act. Section 3 of the Act allows the Court, if it thinks fit, to award interest on the whole or any part of the damages for the whole or any part of the period between the date when the cause of action arose and the date of judgment.

[12] The cause of action arose in June 2004 when Shailendra Kumar transferred the property into his own name. I therefore award interest from that date to the date of this Judgment i.e. a period of approximately five and a half years at the rate of 6% pa. This computes to $22,000 x 6% x 5.5 = $7,260.

GENERAL AND SPECIAL DAMAGES

[13] There is no proof of general damages. Special Damages of $1,600 for travel and legal expenses has been claimed and although no documentary evidence was produced I think the amount claimed is reasonable so I will allow it. In any event, documentary evidence is not required where there is no challenge to the amount claimed: Krishna Brothers v Post and Telecommunications Ltd [2005] FJCA 36; ABU0028.2004S (29 July 2005); Pacific Parasail Ltd v All Engineering (Fiji) Ltd [2009] FJHC 206; HBC39.2004L (15 September 2009).

COSTS

[14] The Plaintiff claims indemnity costs but I think this is not one of those cases justifying such and award, even though the Defendant’s behaviour is quite reprehensible. The normal rule applies. The Defendant is to pay the costs of this action which I summarily set at $3,000.

ORDERS

[15] The Orders are therefore as follows:

1. The Defendant shall pay to the Plaintiff the total sum of $29,260 being the refund of the purchase price of $22,000 and interest thereon of $7,260.
   
2. The Defendant shall pay to the Plaintiff the sum of $1,600 as special damages.
   
3. The Defendant shall pay the Plaintiff’s costs of $3,000.
   

............................................................
Sosefo Inoke
Judge