Equity Realtors and Land Developers (Fiji) Ltd v Sharma [2011] FJCA 34; MA18.09 (27 May 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

MISCELLANEOUS ACTION NO.18 OF 2009
[High Court Civil Action No.10 of 2009]

BETWEEN:

EQUITY REALTORS AND LAND DEVELOPERS (FIJI) LIMITED
Appellant

AND:

SADANAND SHARMA
Respondent

Counsel: Ms A Lata for the Appellant
Dr Sahu Khan for the Respondent

Date of Hearing: Wednesday, 9th February 2011
Date of Ruling: Friday, 27th May 2011

RULING

1. Mr Justice Inoke on 24th September 2009 ordered after hearing an interpartes summons, that the subdivision of land agreed in a consent order of 17th October 2005 should be completed by Equity Realtors and Land Developers Limited within four months of 24th September 2009.
   
2. On 11th November 2009 Equity Realtors and Land Developers (Fiji) Limited filed a summons for leave to appeal out of time. Since there is no issue that the proposed appeal was from an interlocutory order the time for filing expired on 15th October 2009. The application is nearly four weeks out of time.
   
3. The affidavit of Joyce Raman on behalf of the applicant explains the delay by stating that solicitor Mr Verma who is the principal of Suresh Verma and Associates is also the Managing Director of Equity Realtors and Land Developers (Fiji) Limited. He was in New Zealand for medical treatment and spent intermittent periods of time in hospital. Ms Raman says that Mr Justice Inoke's judgment went through by fax to Mr Verma on 26th September 2009.
   
4. Since the judgment is headed "INTERLOCUTORY JUDGMENT" it must have been clear to Mr Verma that if he wished the company to apply for leave to appeal he would have 21 days to make application. Mr Verma has been a principal solicitor and barrister in Fiji for many years. I do not accept that he did not appreciate the need for prompt action. Since he was in touch with his Fiji practice by Fax I do not think that his medical condition would have prevented him giving instructions in time.
   
5. I also believe that if he is absent from his duties as Managing Director on account of ill health or any other reason it was his duty to appoint an acting Managing Director to act on his behalf.
   
6. I intend to refuse to extend time for the making of this leave to appeal application.
   
7. My principal reason is that the proposed interlocutory appeal has no chance of success. The consent order of Mr Justice Finnigan in HBC 36 of 1996L was made on 17th October 2005. Since the dispute goes back to 1996 or earlier and the settlement in favour of Mr Sadanand Sharma was made in 2005 it is unmeritorious that the company did not carry out the subdivision many years ago.
   
8. Mr Justice Inoke clearly had power under Order 45 Rule 5 to make the necessary order. He also had power under the common law.
   
9. Mr Sadanand Sharma in his affidavit of 13th January 2010 says he is 74 years old and wishes title to be completed during his lifetime. On the facts and the law his position is wholly meritorious and the position of the company wholly unmeritorious. There is no chance that the full Court of Appeal would take a different view from Inoke J on this matter.
   

ORDERS

10. My orders are:
    

(1) that Equity Realtors And Land Developers (Fiji) Limited (the Applicant) be refused an extension of time in which to apply for leave to appeal from the orders of Inoke J made on 24th September 2009.

(2) that Equity Realtors and Land Developers (Fiji) Limited be refused leave to appeal the orders of Inoke J made on 24th September 2009.

(3) that Equity Realtors and Land Developers (Fiji) Limited pay the costs incurred by Sadanand Sharma (the Respondent) assessed at $1500 in respect of this application and proposed appeal.

William R. Marshall
Resident Justice of Appeal