IN THE FIRST CLASS MAGISTRATES COURT
OF FIJI SUVA
CIVIL JURISDICTION
Civil Action No. 329/2009

BETWEEN:

CFS PHUKET COMPANY LIMITED a company registered in Thailand having a Suva Office at Moala Street, Samabula, Suva.
PLAINTIFF

AND:

SUVA CITY COUNCIL a statutory body established pursuant to the Local Government Act, Cap. 125.
DEFENDANT

RULING

1.	The Plaintiff filed a Writ of Summons seeking following orders inter alia:

(i)	An Oder to restrain the Defendant whether by itself or by its servants or agents or otherwise however from interfering, obstructing, disposing and selling metal scrap on public auction or in any manner on the Plaintiff's metal scrap inside the container described as FCIU 272637[4] impounded at Samabula yard.

(ii)	That the Defendant whether by itself or by its servants or agents or otherwise immediately release the metal scrap inside and the said container described as FCIU 272637[4] to the plaintiff and its agents or servants;

(iii)	Special damages in the sum of $20,410.80 (TWENTY THOUSAND HUNDRED AND TEN DOLLARS EIGHTY CENT) plus costs for hiring of side lifter for removal of the said container.

(iv)	Exemplary Damages;

(v)	Interest at a rate determined by this Honourable Court;

(vi)	Costs of this proceedings on a full solicitor/client indemnity basis;

(vii)	Such further and/or other relief as this Honourable Court may deem fit.

(viii)	That the General Damages, interest and costs not to exceed the monetary jurisdiction of this Honourable Court.

2.	The defendant objected and filed Statement of defence and counter claim seeking following orders:

(a)	The sum of $350.00 as impounding fees;
(b)	The sum of $405.00 for hiring of side lifter;
(c)	The sum of $237.00 for repair works;
(d)	Interest on the Judgment sum;
(e)	Costs;
(f)	Such further order or relief as deemed appropriate by this Honorable Court.

3.	Both parties filed PTC Minutes on 23rd November 2010. The defendant requested this Court to try the issue of whether the 24 hour notice was unreasonable as a preliminary objection. 

4.	Both parties were directed to file written submission on this issue and the plaintiff filed his submission on 06th May 2013. When this was called before me the defendant maintained this objection and I invited the plaintiff also to file his submission which they obliged on 08th October 2013. 

5.	Both parties have agreed about the following issues in this case. 

a.	The plaintiff had placed its container outside its property at 38 Moala Stree, Suva and on the Council's footpath

b.	The council on 02 October 2009 issued a Notice to the Plaintiff to remove the said container. The Notice was served on the Plaintiff on 02 October 2009 at 2.45pm

c.	The container was not removed within the 24 hours of the Notice. 

d.	On the 05 October 2009 the Defendant then removed the container. The Plaintiff brought its claim against the Defendant on the basis that the Notice issued was unreasonable given that the time period to comply was not practical as 02 October 2009 was a Friday and the Notice expired in the weekend. 

6.	In the submission filed by the Plaintiff they submitted that they have given notice in the prescribed form and stipulated time according to that was 24 hours. This notice was marked as "B" in the submission and they further submitted that there is no restriction for that period to stop on weekends. 
 
7.	The defendant also acknowledged that the notice was given on 02 October 2009 (Friday) at 2.42pm and they did not comply with this. In the submission they argued that this issue involves facts in this case and therefore has to be decided based on the evidence in the hearing. 

8.	As mentioned above this notice was served on 02nd October 2009 at 2.42pm. Also both parties admitted that the container was removed only on 05th October 2009 well out of the stipulated period. 

9.	But I note that in the pleadings filed by the Plaintiff they stated that they tried to remove the container on 03rd October 2009 and the defendant objected to this. Also in the Reply to the Statement of defence the Plaintiff further stated that they contacted the Defendant's enforcing officer and he agreed that the container to be removed on 05th October 2009 (Monday) which implies that the defendant has extended the time. These facts were not accepted by the defendant in his pleadings. 

10.	I believe these facts are crucial to decide about issue raised in this application and have to be decided in the hearing. Therefore I accept that the Plaintiff's position that this preliminary objection has to be decided based on the evidence in the hearing. 
 
11.	Accordingly I dismiss the Defendant's application to try this issue as a preliminary objection. There would be no cost in this application. 

30th October 2013

H.S.P.Somaratne
Resident Magistrate