IN THE HIGH COURT OF FIJI
AT LAUTOKA
IN THE WESTERN DIVISION

Civil Action No HBC 0285 of 2005

BETWEEN:

CHASE CORPORATION LIMITED 
of 7 Ravouvou Street, Lautoka.
Plaintiff

AND:

THE MINISTER FOR WORKS AND ENERGY 
on behalf of the Government Department of Works and Energy of Nasilivata House Samabula, Suva.
1st Defendant

AND:

THE ATTORNEY GENERAL OF FIJI
2nd Defendant

Appearances;
Counsel for the Plaintiff: Mr. V. M. Mishra, Mr. R.Prakash & P.Keniloa (Mishra Prakash & Associates)
Counsel for the Defendant: Mr Siromi D.Turaga (A.G's Chambers)

JUDGMENT

1)	The Plaintiff is a company said to be engaged in carrying out the business of excavation and building demolition work, and had with it excavators for that purpose. The Defendant is alleged to have hired the excavators from the Plaintiff in 1998 for work in the outer islands in the Yasawa Group of Islands. The dispute appears to be in respect of monies said to be due for idle hours (also referred to as 'stand by hours' and 'lost hours' ) and damage done to and for consequent loss of income in respect of a particular Large Excavator. 

2)	The identity of the particular 'Large' Excavator (Make-Kato Fully Hydraulic Excavator HD 450 V2 Serial no.4505980, 11ton weight, Reg. EA166 ) is not in dispute between the parties and as such hereinafter shall be referred to as the 'excavator'. 

3)	Fiji consists of numerous islands, among which Viti Levu and Vanua Levu are by far the largest. In the Island of Viti Levu in its WESTERN DIVISON is situated the city of Lautoka where the Plaintiff has its office and yard, where its excavator was parked. To the west and north of Lautoka are a group of resplendent smaller islands (the location of the famous film 'Blue Lagoon' etc.) of Fiji known as the Yasawa Islands and the Mamanuca Islands. It is for excavation work in these smaller islands that the Defendant sought to hire the Plaintiffs excavator. 

4)	The Excavator by its structure, being built to travel on rough ground and for short distances, are fitted with caterpillar tracks instead of wheels and of necessity had to be transported from site to site by a low bed truck on to which the excavator is driven or loaded on to. When such an excavator had to be transported by sea to another island or islands as in this case, it has to be loaded to a low bed truck and transported to the harbour (jetty) from where it had to be carried by a vessel to a destination harbour (jetty) and off loaded and carried to the site by the low bed truck.

5)	At the Pre Trial Conference the parties agreed to the following facts and issues;

"A. PTC AGREED FACTS

1.	The Plaintiff carries out business of excavation, building demolition and other works.

2.	The First Defendant in August 1998 asked the Plaintiff for a quotation for large excavators to carry out excavating and drainage works at Naviti, Yasawas.

3.	The Plaintiff gave a quotation dated the 31st day of October 1998 of $60.00 per hour for a large excavator on the 31st day of October 1998.

4.	This quotation was accepted by the Defendants. 

5.	The Defendants loaded the Plaintiff's excavator from the Plaintiff's premises and took the same to the Fisheries Jetty, Lautoka in September 1998 and loaded it onto a Government Vessel which took it to Morou, Naviti, Yasawas.

6.	Excavator Work commenced in Morou, Naviti on the 1st day of October 1998.

7.	The excavator was only returned to the Plaintiff on the 12th day of June 2000.

8.	The Plaintiff has demanded payment of the sum of $192,780.00 but the Defendant had refused.

9.	The Defendant only paid the Plaintiff the sum of $28,560.00 for 476 hours at $60.00 per hour for the project at Morou, Naviti from the 1st day of October 1998 to the 12th day of June 2000.

10.	That there was discussion on how much is to be paid as a category of lost hours but this was not amicably resolved."

B. AGREED ISSUES

1.	Was there any written or partially written or verbal contract between the Plaintiff and the 1st Defendant for the project in Yasawa?

2.	If there was a contract, what were the key terms of the contract?

3.	What are the legal consequences of no written contract?

4.	When did the contract with the 1st Defendant expire?

5. Whose responsibility was to board the excavator to Government Vessel? 

6.	What was the nature and period of the work done at Teci Village by the Plaintiff?

7.	Whether the Plaintiff is owed the sum of $192,780.00 or any other sum for the period of contract between the 1st day of October 1998 to 20th November 1999 for the unpaid hours.

8.	Whether the Plaintiffs machine(s) sustained damage to electronic system, hydraulic piping, rolling, chains, panels, boom and seals and oil cooler due to the First Defendant's negligence.

9.	Whether the Plaintiffs machines were broken down whilst hired for private work in Teci Village.

10.	Whether the First Defendant is liable for failure to get the Plaintiff's machines to the scheduled site so it could be transported to Lautoka and the loss of use for the same.

11.	Whether the damage to the machines were caused by the normal wear and tear in respect of its exposure to sunlight and salinity. 

12.	Whether the Plaintiffs earning ability was affected due to the First Defendants negligence and its failure to repair and/or pay for the repairs

13.	Whether the Plaintiff suffered loss of income and quotation of the same."

6)	In the opening statement the Plaintiffs Counsel stated that the dispute was not as to the work done but as to the payment due for idle hours in respect of the large excavator. Counsel further stated that the damage done was too to the large excavator, and that there was no set date for the return of the excavator. It was the Plaintiffs position that the excavator was taken from the Plaintiffs yard in the mainland in Lautoka to the outer islands by the Defendant and that it was for the Defendant to equally return the excavator to the Plaintiffs yard at Lautoka.

7)	The Plaintiff led the evidence of 2 witnesses (the Driver of the excavator -PW1& the Company Secretary of the Plaintiff- PW2) and marked P1 –P63 (P63 marked through DW2). The Managing Director of the Plaintiff Mr. Mukesh Kumar who was the author of almost all the correspondence on behalf of the Plaintiff had died sometime ago before the trial. 

8)	The Defendant led the evidence of two witnesses (Mr. Isireli Temo Veitokiyaki- Deputy Secretary Public Works Department –DW1, and Mr. Temo Vosaki Divisional Engineer-DW2) and marked in evidence D1-D1A. The evidence was of matters that took place from 1998 onwards almost 14 years ago. The trial lasted over 5 days with 65 documents led in evidence

9)	DW2 under cross examination admitted that 4 other contractors, who had been awarded contracts in the Yasawa Islands previously, did not want to take the particular contract due to salt content, corrosion and other reasons. He further admitted that the standard 'Annual Suppliers Contract' terms (in contracts with the Government) did not apply to the Yasawas and a special contract was needed and entered in to. However though DW2 admitted that such a contract was signed and filed in his office in 1998, and though it was called for under cross examination it was not produced by the Defendant at the trial. (see Jones vs. Dunkel (1959) 101 CLR 298 cited by the Plaintiffs Counsel). For this reason the Defendants Counsels submission that, the 'Road Manual' under the standard contract applies, fails. No authorities or evidence were submitted by the Defendants Counsel to persuade this Court to hold that the 'Road Manual' becomes part of such a contract. However it appears that most calculations had been done by the Defendant applying conditions in the Road Manual (to which the Plaintiff has initially disagreed). 

ON ISSUES;

As to issue no.1; Was there any written or partially written or verbal contract between the Plaintiff and the 1st Defendant for the project in Yasawa?

10)	By P3 the Plaintiff has made a quotation in writing on 31/August 1998 and in agreed fact 3 of the PTC the Defendant admits that such quotation was accepted by the Defendant (apparently in writing). DW2 as well admits the existence of a written contract, though the Defendant failed to produce it. Therefore as even a written offer and an acceptance is sufficient to constitute a written contract this court is inclined to hold that the 'written' contract between the Plaintiff and the Defendant constituted the terms in the quotation P3 and in such other correspondence and by conduct of other terms implied in such a contract of necessity and practice. Therefore issue 1 is answered in the affirmative. 

As to issue no.2; If there was a contract, what were the key terms of the contract?

11)	P3 gives only the very bare essentials of the agreement between the parties in writing. Therefore this issue calls upon the Court to find the implied terms that form the other key terms of the contract. The power of the Court to do so has been asserted since the case of The Moorcock (1889) 14 pd 64; (1886-90) All E.R. Rep. 530. Cheshire and Fifoot on the Law of Contract (3rd Ed.) at page 172 succinctly sets out the principle thus; 

 "In addition to terms thus imported into particular types of contract, the courts may, in any class of contract, imply a term in order to repair an intrinsic failure of expression. The document which the parties have prepared may leave no doubt as to the general ambit of their obligations; but they may have omitted, through inadvertence or clumsy draftsmanship, to cover an incidental contingency, and this omission, unless remedied, may negative their design. In such a case the judge may himself supply a further term, which will implement their presumed intention and, in a hallowed phrase, give "business efficacy" to the contract. In doing this he purports at least to do merely what the parties would have done themselves had they thought of the matter."

12)	As to the key terms of the contract, as the witnesses have admitted, and P3 and other correspondence as well set out, and on the Defendant offering to pay $17500/- as damage done to the excavator prior to its delivery back to the Plaintiff, a key implied condition is (on that basis) that it was the obligation of the Defendant to take the excavator from the Plaintiffs yard and transport it to the site over land as well as by sea and equally an implied term of the contract to return it the same way in same condition to the Plaintiffs yard in Lautoka.(Key term1) 

13)	The excavator was supplied with a driver of the Plaintiff and the Plaintiffs evidence too accepts that a mechanic was sent from the Plaintiff when needed for maintenance of the excavator to the outer Yasawa Islands to wherever the excavator was used. Therefore it is an equally implied condition that the excavator had to be available with a driver and in working condition for the Plaintiff to be entitled to the hourly rate of $60/= per hour. (Key term 2)

14)	Provided the excavator was available with a driver and in working condition and it was still not used by the Defendant then the Defendant would be obliged to still pay for the hours that the excavator could have been used ('standby hours', 'lost hours', 'idle hours') as the excavator is physically within the possession and control of the Defendant and exclusively for the use of the Defendant. Therefore it is an implied condition that the Plaintiff has to be paid for 'idle hours' ('stand by hours, lost hours') (Key term 3).

15)	As the excavator is out of the reach of the Plaintiff till it is transported back to its yard at Lautoka to the mainland, and the Plaintiff is entitled to idle hours, the Plaintiff cannot rehire the excavator to another during the period when it is not used by the Defendant before it is returned to the Plaintiffs yard in Lautoka (Key term 4).

16)	As the excavator is used and parked within the Defendants site the security for the excavator is with the Defendant against theft and vandalism (Key term 5). 

17)	By the letter of the Attorney General on behalf of the Defendant dated 22/9/2004 marked P53 the Defendant made an offer of $17500/- as compensation for damages done to the excavator and the Plaintiff by its letter of 29/9/2004 marked P29 accepted that offer. Parties have not raised any issue on 'without prejudice' correspondence nor submitted any correspondence to be as such. Therefore it appears that the Defendant has conceded its responsibility for the damage to the excavator whether by negligence or otherwise and the parties have by offer and acceptance duly settled that claim with only payment to be done by the Defendant to the Plaintiff in that respect in the sum of $17500/-, which too was recovered by the order of the Master (in the process of vacating a default judgment) and on the Defendant depositing the said $17500/- with the Plaintiffs Solicitors Trust account. The Plaintiff was entitled to withdraw half of that amount being $8750/- as per the Masters order and the Plaintiff has withdrawn that amount leaving a balance of the other half being $8750/- still in the Plaintiffs Solicitors Trust account. The Plaintiffs Counsel in his written Submissions seeks an order that the said balance sum be released to the Plaintiff. 

18)	The damage to the excavator had taken place after it was left behind in the islands by the Defendant and till it was returned to the Plaintiffs yard at Lautoka in the mainland. Therefore the duration of the contract admittedly is from the time the excavator was loaded to the Defendants low bed truck at the Plaintiffs yard at Lautoka to be taken to the outer islands till it is returned from the outer islands to the Plaintiffs said yard in the mainland at Lautoka (i.e. from 1st October 1998 to 12th June 2000.) (Key term 6).

19)	The Plaintiffs Managing Director Mukesh Kumar is since deceased and it would have been with some difficulty that PW2 had to gather the documents to proceed with this action. PW2 was the Plaintiffs Company secretary and the ex-wife of the late Managing Director of the Plaintiff. PW2 and the Managing Director of the Plaintiff divorced in 1999 and PW2 came back to the Plaintiff Company sometime in 2007 according to the evidence under cross examination of PW2. PW2 stated that she had to change Solicitors in this case and in that process she may have lost some of the documentation. However the Defendant was without such difficulties and if the terms were otherwise and more favourable to the Defendant the Defendant ought to have produced the contract or correspondence containing those terms. (see Jones vs. Dunkel (1959) 101 CLR 298). As such the answer to issue 2 is that the key terms (6 in number) ARE AS UNDERLINED above.

As to issue 3; What are the legal consequences of no written contract?
20)	 Issue 3 does not arise as the Court has already held that there is a written contract in answering issue 1. In any event the Plaintiffs Counsels submission was that the requirement for a contract to be in writing in Fiji is only in respect of a contract affecting land, and the Defendants Counsel did not submit to the contrary. It must however be stated that in some jurisdictions there exists legislative provisions and subsidiary legislation requiring particular contracts with the state to be in writing and a wealth of case law relating to same, non of which needs to be gone in to in this case as it was not in contention or part of the submissions. Defendants witnesses have given evidence that the contract was granted after tender and the Commissioner Western Division entered in to the contract on behalf of the state due to the special conditions and nature of the contract which required implied conditions beyond the 'Road Manual' or such Standard Contract. Therefore the answer to issue 3 is that it does not arise.

As to issue 4; When did the contract with the 1st Defendant expire?

21)	The excavator had reached the Lautoka fisheries jetty on or about the 9th June 2000 according to the Plaintiffs letter dated 9/6/2000, marked P10. It is submitted by the Defendants Counsel at page 11 of his written submissions that the Plaintiff had admitted in evidence that the excavator reached the Plaintiffs yard in Lautoka on 12th June 2000. Though the Defendant informed the Plaintiff by fax that the excavator is to be demobilized on 30/12/1999, still it is not a termination of the contract and only notice that the excavator and other machines of the Defendant are demobilized and as such there shall be no work for the excavator thereafter. The obligation by implied condition to return the excavator to the Plaintiff remained and the contract would terminate only on a notice of termination or on the excavator being returned to the Plaintiff. Therefore the answer to issue 4 is that the contract with the Defendant expired on the 12th June 2000 when the excavator was returned to the Plaintiff.

As to issue 5; Whose responsibility was to board the excavator to Government Vessel?

22)	P3 clearly request the excavator to be transported from the Plaintiffs yard at Lautoka. This quotation is accepted by the Defendant, and given the special circumstances requiring a non standard contract, and the Defendant offering to pay the damages suffered by the excavator till its return the responsibility to board the excavator to the Government vessel is admittedly with the Defendant. It is to a low bed truck of the Defendant that the excavator was loaded from the yard to be taken to the harbour (jetty) to be taken to the outer islands. The Defendant therefore ought to have been well aware that equally the excavator HAD TO BE LOADED TO A LOW BED TRUCK IN THE OUTER ISLANDS before it is transported to be loaded to a vessel at a harbour in the outer islands to be shipped to Lautoka. Defendant cannot demand the Plaintiff to bring the excavator to the vessel in the outer islands. It is the Defendant that loaded the excavator to the vessel at the Lautoka harbour when going to the outer islands and on the return trip it is the Defendant who must load the excavator to the vessel at the habour in the outer islands. Therefore the answer to issue 5 is that it is the responsibility of the Defendant to board the excavator to the Government vessel. 

As to issue 6; What was the nature and period of the work done at Teci Village by the Plaintiff?

23)	This was an issue raised by the Defendant. However no evidence was led as to this aspect except PW1 admitting under cross examination that he had no personal knowledge of the Plaintiff having done any work at Teci village. Therefore issue 6 is answered in the negative to the effect that there is no evidence of work done at Teci village. 

As to issue 7; Whether the Plaintiff is owed the sum of $192,780.00 or any other sum for the period of contract between the 1st day of October 1998 to 20th November 1999 for the unpaid hours.

24)	The rate of hire was $60/= per hour. According to P51 Saturday too had been a working day with 6 working days a week. The Plaintiffs Counsel with the consent of the Defendants Counsel at the trial amended the working hours per day to 9 hours a day. Defendants calculations too show that the excavator had worked 9 hours and even 12 hours. The working days per week were 6 except public holidays. The number of weeks from 1/October/ 1998 –to - 31/December/1999, are 55 weeks. Therefore the total working hours are 55 X 6 X 9 = 2970 hrs.

25)	Though the Plaintiff made a claim of $216,360/= for total stand by hours in P11 on the 20/6/2000, thereafter by P27-P28 on the 8th September 2004 Plaintiff was willing to accept AND DID ACCEPT $87,700/= as total due on stand by hours after deducting the amount of $28,560/-, based on the recommendation of the Defendants 'PPO' of 3/11/2003 to pay $116,260/=. 

26)	The Defendant has not refuted or denied P27-28 or any of its content and no correspondence to that effect was led by the Defendant. Failing such payment within 7 days Plaintiff demanded 13.5% interest per annum and indiceted it may be compelled to sue for loss of income from 30/6/2000 to December 2003. 

27)	In P13 (9/8/2002) Plaintiff sought such interest from September 2000. It is clear that such interest was not part of the terms of the agreed contract express or implied and not applicable to any monies due prior to the return of the excavator on 12/6/2012. Invoices (P35) after the formation of the contract seeking default interest at 13.5% per annum does not establish an agreement or an implied condition. The principle in The Moorcock case needs to be applied cautiously. (see Heimann v. Commonwealth of Australia (1938) 38 S.R. (NSW) 691, and Scanlan's New Neon Ltd. v. Toohey's Ltd. (1942) 43 S.R. (NSW) 2 overruled in Neon Electric Signs Ltd. v. Caldwell (1943) 67 C.L.R 169. ) A term as to interest or a particular rate of interest is not a necessary or essential term as such to be implied, to have existed at the formation of this particular contract.

28)	By P29 on the 29/9/2004 the Plaintiff accepts the amount of $17500/- as the final figure towards the repair of the excavator. Under re-examination PW2 answered "yes" to the question; 'You stand by what is said in these letters of Mukesh Kumar?' All the aforesaid letters marked as P documents were letters of Mukesh Kumar. 

29)	Therefore what ever claims and counter claims that had been bartered between parties ultimately in the month of September 2004 the Plaintiff has accepted the Defendants calculation of the monies due on the standby hours and the balance due to the Plaintiff thereon of $87,700/- and for the damage to the excavator and for its repair the sum of $17500/- to be the only monies due to the Plaintiff. The Defendant failed to pay the Plaintiff the sum of $87,700/- as per its demand by P27-28, and it is for that sum and no more that the Plaintiff is entitled to in respect of stand by time. There is no agreement between parties to pay any particular interest. Default by the Defendant was obviously not anticipated by the Plaintiff or the Defendant. The Plaintiff appeared to have had considerable trust in the officers of the Defendant who dealt with him to have given the excavator to be taken away to the outer islands with nothing more than the acceptance of P3 a one page letter. P63 an internal report of the Defendant marked through DW2, refers to the shortcomings in project management which is alleged to have affected this particular contract.

30)	Therefore the answer to issue 7 is that the Plaintiff is only entitled to $87,700/= for unpaid hours (or standby hours) stated as at 8th September 2004.

As to issue 8; Whether the Plaintiffs machine(s) sustained damage to electronic system, hydraulic piping, rolling, chains, panels, boom and seals and oil cooler due to the First Defendant's negligence.

31)	Parties having adjusted and settled the claim for damages to the excavator issue 8 now does not arise.

As to issue 9; Whether the Plaintiffs machines were broken down whilst hired for private work in Teci Village.

32)	In answering issue 6 in the negative and to the effect that there is no evidence of work done at Teci village issue 9 too is consequently answered in the negative.

As to issue 10; Whether the First Defendant is liable for failure to get the Plaintiff's machines to the scheduled site so it could be transported to Lautoka and the loss of use for the same.

33)	As stated earlier it is an implied condition (Key term 1, and answer to issue 5) that the Defendant must transport the excavator to the vessel at the outer island to be shipped to the mainland. The Defendant in P51 had offered at page 6 the sum of $17820/- as lost hours at $30/- per hour (half rate) after the excavator could not be loaded on to the vessel at the outer islands at the first attempt (ie. on 29/12/1999 as per P42), thereby confirming the said implied condition. 

Therefore issue 10 is answered in the affirmative subject to the following;

34)	However P51 is dated 30/10/2003 and as such it is before P27 which is dated 8th September 2004 and prior to the recommendation of the 'PPO' of 3rd November 2003 referred to in P27and as such the amount of $17820/- is merged in the claim accepted and demanded in P27-P28. Therefore though issue 10 is answered in the affirmative the Plaintiff is not additionally entitled to this payment of $17820/- over and above the sum of $87,700/= found in issue 7 .

As to issue 11; Whether the damage to the machines were caused by the normal wear and tear in respect of its exposure to sunlight and salinity.

35)	Exact evidence as to the damage to the excavator and the cause of such particular damage was not lead in evidence, and in any event parties by offer and acceptance having settled (by P29) and recovered the claim of damages, issue 11 in any event does not arise. 

As to issue 12; 	Whether the Plaintiffs earning ability was affected due to the First Defendants negligence and its failure to repair and/or pay for the repairs

36)	This issue is obviously in respect of the 'earning ability' after the excavator was returned to the Plaintiff on the 12th June 2000. Though the Defendant paid for the damage and though it may have done that after Master Udit's Order of 26/10/2007 still the Plaintiff is in law obliged to mitigate its loss since the return of the excavator on the 12th June 2000. The Plaintiff could have borrowed the money and repaired the excavator and put it to use and recovered the cost of repair together with the interest payable on the loan from the Defendant.

37)	This issue is also vague as it does not ask as to how long the Plaintiffs earning ability is alleged to have been affected or the particulars of negligence that allegedly caused it. Nevertheless though this issue leads to the most substantial of the Plaintiffs claims being a sum of $575,640/= there was little or no evidence led in respect of this issue by the Plaintiff. The only evidence is the bare allegation in evidence that some contracts were lost, however no evidence of such contracts or the resulting loss of such contracts or the rates sought in such contracts were led. 

38)	In examination in chief PW2 stated that the repairs to the excavator commenced on 13/January 2003 and completed on 23/December/2003. She stated that such repairs were done by the Plaintiffs own mechanic one Diven Prasad. She stated that no repairs were done outside. She stated the basis of the claim thus; "If not returned without damages we would have given it out on hire. There was demand for such work. That is the basis for the loss." 

39)	The calculation of the claim was thereafter stated as follows;

 " How many weeks? – 181,
Hrs 181x 6 x 9hrs = 9774 hrs.
Under that lead - $575,640/-
No change in that claim under 19
Total –repair- agreed to 17500/-
Given Credit to (1) Dec. 2002- 28,560
(2) Contract- 8750/-
Total 777,170/- 	
That is the total Claim	1."

P62 was tendered setting out the rate for this claim at $60/- per hour, however there was no evidence of a contract the Plaintiff lost at that hourly rate. Furthermore in P27 the Plaintiff sets up; "unless the said sum of $87,700.00 is paid to us within (7) seven days from the date hereof, we would not have any other alternative but to institute legal proceedings against your high office for the recovery of the same failing which we shall be compelled to recover the company losses of income from 30th June 2000 to December 2003 together with 13.5% interest together with costs." (Underlining mine). The loss of income claim appears to be more a threat than an actual claim. There is no reason given why the Plaintiff should abandon a $575,640/- claim for the immediate payment within 7 days of $87,700/-.

40)	No evidence of the work that was lost after the return of the excavator was given, nor the rate chargeable in such work. No plausible reason as to why the repairs were delayed from 12 June 2000 till 13 January 2003 or for the repair to last till 23 December 2003 was given. The contract ended on the return of the excavator on the 12 June 2000, and there is no obligation to pay or a right to claim $60/= per hour thereafter or a right to recover lost time thereafter nor pleaded as such. Therefore without the details of the actual loss of work and the hours of work lost on each such lost contract it is not possible to calculate the claim for loss of income. Therefore issue 12 is answered in the negative.

As to issue 13; Whether the Plaintiff suffered loss of income and quotation of the same.

41)	No evidence of such loss of income was led except the allegation of such loss as above. As such issue 13 is answered in the negative.

On Interest;

42)	There is no issue raised challenging interest. The additional claim of $575,640/= albeit without evidence may well have necessitated the case to be heavily contested by the Defendant. 

43)	Even though the amount of $87,700/=may have been an approved amount, still to expect the physical payment of it within 7 days (as demanded in P27-28) from a government department, any where in the world, would be to expect too much. Though the statement of Claim of this action was filed in 2005, 5 years after the return or the excavator, still no pre trial conference was held till 4 years thereafter. As an expatriate judge, after I was assigned to the Lautoka High Court during the latter part of 2009, the Pre Trial Conference was held and the matter taken up for trial before me within 6 months, like many such other cases. In one day alone in December 2009 this Court took up 64 such cases to be fixed for trial. Due to a full diary with day to day trials fixed almost every working day before this Court at that time, on the Parties failing to conclude this matter within the allocated 3 days, further trial had to be adjourned to available dates far and apart with two intervening adjournments sought by the Defendant. On Court suggesting a particular process of collating documents to be marked, Counsel commendably succeeded in marking over 40 documents within a very short period of time saving many trial hours.

44)	Section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Cap 27) provides as follows; (the 'Supreme Court' referred to therein being presently the High Court) 

 "Power of Supreme Court to award interest on debts and damages;
3. In any proceedings tried in the Supreme Court for the recovery of any debt or damages the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment:

Provided that nothing in this section-

(a) shall authorise the giving of interest upon interest; or
(b) shall apply in relation to any debt upon which interest is payable as of right, whether by virtue of any agreement or otherwise; or
(c) shall affect the damages recoverable for the dishonour of a bill of exchange."

45)	Given the circumstances of this case and the claim for unpaid hours ('stand by hours', 'lost hours') not carrying with it a necessity for commercial borrowing unlike in the Milton Ross Dube & others vs. Kristamma Goundar & others (HBC 061 OF 2005) case cited by the Plaintiffs Counsel, this Court is of the view that 6% per annum would be the rate of interest fit to be recoverable on this particular claim for unpaid hours (standby hours/ lost hours). Order 13 rule 1(2) and Order 44 rule 10 of the High Court Rules prescribe an interest of 5% per annum in respect particular liquidated claims and on legacies. 

46)	The Payment for unpaid hours ( standby hours/ 'lost hours') became due at least on the return of the excavator to the Plaintiff on the 12th June 200, and interest awarded by Court under section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Cap 27) would be due from 12/6/2000. Therefore Plaintiff is awarded interest on the said sum of $87,700/= at the rate of 6% per annum from 12th June 2000 till date of judgment. As such the interest due on the $87,700/- till 7/9/2012 (date of this judgment) is $63,947/92, and the total sum of the judgment therefore is $151,647/92.

47)	The trial lasted over 5 days with many documents (65) marked in evidence with much effort put in by Senior and junior Counsel. Two trial dates were adjourned on the application of the Defendant. Costs is assessed summarily, taking in to consideration all of the above, in the sum of $10,000/=. 

48)	Therefore judgment is entered against the Defendant in favour of the Plaintiff in the sum of $151,647/92.

49)	Plaintiff is entitled to be released the sum of $8,500/= held in the Plaintiffs Solicitors trust account.

50)	Costs to the Plaintiff summarily assessed in a sum of $10,000/= against the Defendants.

………………………………………
Hon. Justice Yohan Fernando.
JUDGE.

High Court of Fiji
At Lautoka
7th September 2012.