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Wati v Pal [2016] FJHC 398; Civil Action HPP 30.2011 (2 May 2016)

In the High Court of Fiji
At Suva
Civil Jurisdiction Civil Action No. HPP 30 of 2011

Between: Chandra Wati

Plaintiff

And: Hari Pal

Defendant

Appearances: Mr M. Nand for the plaintiff

Mr Shelvin Singh for the defendant

Date of hearing: 28^th April,2016

Judgment

1. The plaintiff and defendant are the remaining beneficiaries of the estate of Bodhi Mati. The defendant is the administrator of the estate. Bodhi Mati died intestate on 26^th July,1990. The plaintiff, in its statement of claim filed on 20^th February,2012, prays for the following reliefs : that the defendant provides the accounts of the estate, pays into Court all rental monies received: and distribute the estate to the remaining beneficiaries. Alternatively, that the defendant be removed as administrator. The defendant counterclaims for the loss of rental from the estate property and damages stating that the plaintiff was in occupation and later leased the property.
   
2. The hearing on 16^th and 17^th September,2015, were vacated on the application of the defendant that he could not travel from California as he had “end stage renal disease” and was “undergoing chronic maintenance treatment to stay alive”, as stated in the medical certificate filed. The next dates of trial on 21^st and 22^nd January,2016, were also vacated on the same ground. The case was fixed finally for hearing on 29^th and 30^th March,2016.
   
3. Meanwhile, on 7^th March,2016, the defendant filed a summons as follows praying that:
   1. There be a valuation of the property comprised in Certificate of Title No.10483 being Lot 26 on DP No. 2577.
   2. R Hooker Limited be appointed to sell the property.
   3. That upon sale of the said property, the net sale proceeds be deposited into Court and thereafter to be dealt by an order of the Court for the purposes of being divided between the beneficiaries of the estate.
   4. Each party to be at liberty to apply to Court for further directions if required.
   5. The trial date be vacated.
      
4. 7The defendant, in his affidavit in support states that:
   1. He has decided to sell the property and deposit the net proceeds in Court.
   2. Once estate accounts are finalized, an application can be made to Court for distribution of the proceeds between the beneficiaries.
   100. If the plaintiff wishes to purchase the property, she will be given the right to match the highest offer for the property sourced by R Hooker Limited.
        
5. The sequence of events that transpired thereafter, are as follows:
   • (a) On 18^th March,2016, Mr Nand moved for time to respond to the summons.
   • (b) On 21st March,2016, Mr Singh supported his summons. Mr Nand agreed for a valuer to be appointed to value CT No 10483.
   • (c) On 29^th March,2016, Ms Lutu, counsel for the defendant on that occasion moved for further time to provide the valuation of the estate property.
   • (d) On 7^th April,2016, the matter was adjourned, since there was no appearance for the defendant, due to the threat of cyclone Zena.
   • (e) On 11^th April, 2016, I fixed the hearing of the summons for 26^th April,2016.
   • (f) On 26^th April,2016, Mr Kumar, counsel for the plaintiff on that occasion moved for a postponement on the ground that the plaintiff is in the US and her power of attorney holder is in India undergoing bypass surgery. I gave a final date to file reply to the defendant’s summons and fixed the hearing of the summons finally for 28^th April,2016.
     
6. Achal Goundar, clerk at the solicitors for the plaintiff has filed an unsigned affidavit in reply of the power of attorney holder of the plaintiff.
   
7. On 28^th April,2016, both counsel stated that the estate property has already been valued. That disposes of prayer 1 of the summons before me. Mr Nand stated that he agreed to prayer 3 of the summons.
   
8. The matter remaining for consideration is the defendant’s application that “R Hooker Limited be appointed to sell the property”.
   
9. In my judgment, that is not a matter for judicial determination, as I informed Mr Singh at the hearing.
   
10. The end result is that this summons filed by the defendant has regrettably further prolonged the hearing of this case.
    
6. Orders
   1. The defendant upon sale of the property comprised in Certificate of Title No.10483 being Lot 26 on DP No. 2577 shall deposit the net sale proceeds in Court to be divided between the beneficiaries of the estate of the late Bodhi Mati.
   2. The application by the defendant for “ R Hooker Limited” to be appointed to sell the property, is declined.
   3. I make no order as to costs.
      

2^nd May 2016 A.L.B.Brito-Mutunayagam

Judge