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Vosalotaki v Vaqewa [2013] FJMC 201; Civil Action 327.2011 (8 May 2013)

REPUBLIC OF FIJI ISLANDS
IN THE MAGISTRATE'S COURT
AT SUVA CENTRAL DIVISION
CIVIL JURISDICTION

Civil Action No.327 of 2011

Varisila Vosalotaki
Applicant

.v.

Eroni Vaqewa
Respondent

For Applicant : Mr Bukarau (Muskits Law)
For Respondent : In Person

Ruling

Introduction

In this matter the Applicant has filed a Notice of Motion seeking leave for extension of time to appeal the Judgment Debtor Summons issued on 12th September 2011.

In this matter the Claimant filed a claim in the SCT and obtained an Order. Following the Order of the SCT, the Claimant took out a JDS and then an Order of Commitment.

The Respondent in this matter is essentially filing a motion to seek leave to appeal out of time the Orders of the SCT. Parties were given time to file submissions on the application before this Court. Both sides have made written submissions.

History of the Matter

(a) Claimant obtained judgment in SCT on 27th July 2011 against the Applicant in the sum of $3550.00
(b) Claimant was issued JDS on 12th September 2011.
(c) On 17th January 2012 Order for Commitment was issued.
(d) On 13th February 2013, The Respondent through its Counsel filed for leave to appeal out of time.

The Law

In Chans Long Chang v. Yen Yain Kai (1999) FJ HC 107, 45 FLR 217, the general principles governing the grant of leave to appeal out of time are set out as follows:-

(1) The length of the delay.

(2) The reason for the delay.

(3) The chances of an appeal succeeding if the time for appealing is extended.

(4) The degree of prejudice would cause to the respondent if the application is granted.

Analysis

(1) Length of Delay -

From the time the SCT gave its Orders to the date Leave to Appeal was filed is about 20 months. The Respondent states that she was not present in the SCT and had no way of knowing about the SCT Orders. She has made some payments for the JDS issued. The length of the delay is considerable but it will be considered with the remaining principles.

(2) Reasons for Delay –

The reason the Respondent is that they found various out issues about the property and particulars of rental the claim made by the claimant later.

(3) The chances of an appeal succeeding if the time for appealing is extended –

This Court has noted the considerations of the Referee and finds that he considered only matters that were before him in reaching the decision. The Applicant in the SCT claimed rental due for the subject property. The Respondent was not present as she alleges she was not served. The Applicant has filed an affidavit of service which is defective as it is not clear whether clause (4) or (5) applies, as (4) is ticked but clause (5) is filled out.

(4) The degree of prejudice would cause to the respondent if the application is granted -

From the SCT file and the all the documentations lodged with it this Court noted that the Fiji Public Trustee Corporation (FPTCL) was the Sole Executor and Trustee of the Estate of the Lewa Snow and Gavin Snow. They were charged with the responsibilities of the estate and for this matter the rental issues.

FPTCL was legally entitled to claim on behalf of the Estate if any rental was due. No authority was given to the Respondent (Eroni) to claim or institute action for any rental dues. However he was to collect the keys to the house from the Applicant.

Having noted all the documents in this matter this Court finds that the Respondent had no locus to institute the matter in the SCT. He had no authority or any legal standing to collect any rent which rightfully should have been the duty of FPTCL. The Respondent claimed as if the money was owed to him. The Applicant lived in the premise which was under FPTCL's administration and as such FPTCL should have, if rent was due instituted action and claimed rental. If the Respondent had any grievance as a beneficiary he should have addressed it through the Executors and Trustees, which is the FPTCL. Having noted as such this Court find it would be unjust to allow the Respondent to proceed with the claim.

For the foregoing reasons this Court grants leave to appeal and having noted that the Respondent had no right to claim rent as if owed to him by the Applicant this Court finds that the Respondent has no locus standi in the said matter.

This Court Orders as follows:

(a) Leave to Appeal is allowed.
(b) The Order for Commitment and JDS is dismissed/cancelled.
(c) The Respondent had no locus to institute action in SCT.
(d) That any monies paid by the Applicant be refunded to her within 7 days

Chaitanya Lakshman
Resident Magistrate
8th May 2013