IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

HBC 150 of 2021

BETWEEN:

ANDREW JORDAN and IRENE RITA NAIR both of Point Cook, Melbourne, Australia, Retired
Bank Officer and Businessman respectively.
PLAINTIFFS

A N D:

GOVIND SAMI CHETTY the Trustee and Administrator of the Estate of the late Armogam Chetty of
Malolo, Nadi, Farmer.
DEFENDANT

Appearances: Mr. Nand for the Plaintiffs
Date of Hearing:	22 February 2022
Date of Ruling: 04 March 2022

R U L I N G

BACKGROUND

1.	On 13 July 2021, Andrew Jordan and Irene Rita Nair filed a Writ of Summons and Statement of Claim against Govind Sami Chetty.  Two days later, on 15 July 2021, they filed an Amended Writ of Summons.  The only amendment they have made in the second writ is in the description of Govind Sami Chetty. Whereas they had named Chetty as Defendant in his personal capacity in the original writ, Jordan and Nair now name in the amended writ Chetty in his capacity as Trustee and Administrator of the Estate of the late Armogam Chetty in the amended writ.

CLAIM

2.	Jordan and Nair (“couple”) are husband and wife. Chetty is the Administrator of the Estate of the late Armogam Chetty. The late Armogam Chetty was the proprietor of State Lease No: 7703 situated at Malolo in Nadi. The said land is ten (10) acres zero (0) roods and thirty-two (32) perches in size.

3.	In his capacity as administrator of the estate, Chetty was sub-diving the said land and then selling off the plots. At some point, Chetty spoke with the couple about his venture. The couple became interested in purchasing a plot. They viewed the survey plan, and were particularly keen on Lot 7 which was approximately 1120m2 with a road access. 

4.	The couple then negotiated then had discussions with Chetty. Initially, Chetty told them that he was selling the plot for $30,000. However, he later agreed to sell the plot to the couple for $20,000.

5.	The parties then drew up a Sale and Purchase Agreement through their common solicitor, Prakashan & Associates. They executed the said agreement on 05 January 2016. On the same day, the couple paid Chetty the full price of $20,000.

6.	However, Chetty would not honor the agreement. He did not transfer the property to the couple. Thus began a long drawn out chain of events where the couple, mainly Mr. Jordan, would be chasing up Mr. Chetty about their agreement.

7.	As it turned out, Chetty did borrow some funds from the couple at some point later. Jordan said that Nair, his wife, is related to Chetty’s wife, and so there was some trust involved in their arrangement. He said that in total, Chetty had taken $58,000 from him and Naid. This sum includes the initial $20,000 paid. 

8.	Meanwhile, Jordan made numerous trips from Australia to Fiji to follow up on the execution of a separate lease.  After a while, he and Nair finally had enough. And so, sometime in February 2018, the couple demanded that Chetty return all the monies they had paid. Chetty told Jordan and Nair sometime in March 2018 that he did not have enough cash to repay them. However Chetty was willing to sign a loan agreement to acknowledge the debt. The said loan agreement was drawn up by Prakashan and Associates who acted for both Chetty and Jordan/Nair. The debt acknowledged in the said loan agreement is $58,000 and the agreed interest rate is 13.5% from date of loan agreement. At the hearing of formal proof, Andrew Jordan gave evidence in Court confirming all the above.  Jordan tendered the following documents:

DOCUMENT NO:	BRIEF DESCRIPTION	PURPOSE OF TENDERING	
PEX1	Sale & Purchase Agreement dated 05.01.16	To establish agreement	
PEX 2	Undated and unexecuted Sale & Purchase Agreement - 2017	To establish that parties were trying to work out an arrangement thereafter first agreement	
PEX3	Loan Agreement dated 14/03/18	To establish that, after the sale and purchase agreement failed, Chetty acknowledged the sale and purchase price paid together with other monies paid to him by the couple.	
PEX4	Letter dated 13.12.18 by Aptrack Pte Ltd to Jordan and Nair		
PEX5	Letter dated 29/05/19 by Kings Law to Govind Sami Chetty 	Demand Notice	
PEX6	Letter dated 03.07.19 by Prakash & Associates to Kings Law	Reply to Demand Notice	
PEX7	Letter dated 02.08.21 by Chief Registrar to Jordan and Nair		
PEX8	S. Nand Lawyers invoice to Jordan and Nair	To establish costs	
PEX9	Professional service agreement dated 30.09.19 between Kings Law and Jordan and Nair.	To establish costs	

9.	The couple claim as follows:

Sum	Basis of Claim	Comments	
$58,000-00	Total sum of monies given by the couple to Chetty as acknowledged by Chetty in Loan Agreement	PEX 3	
$47,385-00	13.5% interest calculated accrued annually to $58,000-00 since 2016.	Clause 3(b) of PEX 3	
$10,500 -00	Legal Fees over the years
$3,500  - Kings Law
$7,000  -  S. Nand Lawyers	PEX 8 PEX 9	

10.	The couple also claim damages for breach of contract.  It is not clear to me whether they mean breach of the sale and purchase agreement or the loan agreement. I am not inclined to make an award under this head. 

CONCLUSION

11.	I find that the plaintiffs have proven their claim on the balance of probabilities and I give judgement in their favour in the liquidated sum of $115,885-00. 

…………………………….
Anare Tuilevuka
JUDGE
Lautoka

04 March 2022