Cauty v Pfafflin [1994] FJHC 125; Hbc0638d.93s (22 September 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0638D.93S

Between:

JOHN VICTOR MARTIN CAUTY
Plaintiff

- and -

TERRY A PFAFFLIN
Defendant

Mr. W. Morgan for the Plaintiff
No appearance of the Defendant

REASONS FOR JUDGMENT

On 21 September 1994, after hearing evidence adduced by the Plaintiff I gave oral judgment in favour of the Plaintiff on his claim and stated that I will write my judgment with reasons later and place it on the file. This I now do.

By Summons dated 17 December 1993 the Plaintiff applied to Court for an order for immediate vacant possession of the land and premises situate at Pacific Harbour, Deuba, known as Villa 902, Kavula Place, Pacific Harbour and being all that land comprised and described in Certificate of Title No. 16308 being Lot 3 on Deposited Plan No. 4005 of which the Plaintiff is the registered proprietor (hereafter referred to as the "property").

In support of the Summons the Plaintiff filed Affidavit sworn 16 December 1993. Among other things the Plaintiff stated that a notice to quit had been given to the defendant to vacate the property but the defendant unlawfully and without authority continued to occupy it. At that time the defendant had not paid mesne profits at the rate of $800 per month for the months of November and December 1993.

The defendant swore an affidavit in reply on 8 February 1994 opposing the application stating:

(a) that he took possession of the property under a valid tenancy agreement, that no notice to quit had been served on him and he remained in possession as a tenant and also as purchaser under a valid contract of sale and purchase between the Plaintiff and himself created by his exercise of his option to purchase the property.

(b) that he seeks set-off costs and compensation for repairs estimated at F$6000 - $F7000. He said he had spent $3800 in improvement, maintenance and repairs.

(c) that he intends to institute proceedings for breaches of contract and to enforce his contract to purchase and seek time in which to file such proceedings.

On 12 April 1994 after hearing of Summons in Chambers, I gave judgment and ordered that continuation of these proceedings be in open Court. By consent it was agreed that the affidavits together with annexures be treated as pleadings under Or.28 r.9 of the High Court Rules. The hearing of the action was set for 9 May 1994.

The hearing was adjourned from time to time because the defendant who was in Australia was unable as he alleged to travel to Fiji for the case because of his sickness.

On 1 September 1994 the Court gave a Ruling when I made the following orders:

"No doubt this case cannot just drag on like this without any firm indication as to when the hearing of the action could commence. In the meantime the Plaintiff is suffering by not having received the mesne profits and also because the defendant has not paid the deposit which he undertook to pay under the alleged option to purchase agreement which he says he exercised.

Having heard counsel for the Plaintiff and counsel for the defendant, in all the circumstances of this case, I make the following orders:-

(a) That the defendant deposits with the High Court at Suva within 14 days the sum of $8800 being mesne profits in respect of the property in question for the period November, 1993 to September 1994, that is, 11 months at $800 per month. This sum is to remain in Court until further order.

(b) It is further ordered that the defendant deposits into Court within 14 days the sum of $16335 being the balance deposit payable under the Option to Purchase Agreement. This sum is to remain in Court until further order.

(c) If the above deposits are not paid as ordered the Court will on the adjourned date of hearing proceed to consider the Plaintiff's application for an Order for vacant possession or make such other Order as the Court may deem fit.

(d) The case is adjourned for hearing on 21 September, 1994 at 9.30 a.m. and no further adjournment will be granted except for very good reason.

(e) I make an order that the defendant pay the costs of this adjournment in any event."

On 21 September 1994 the defendant failed to appear for the hearing. Also he did not comply with the above orders.

His counsel sought leave to withdraw from the action after the defendant had withdrawn his instructions from his former solicitors to act for him. On 20 September the defendant sent a facsimile message addressed to Chief Registrar (received on 21 September) seeking adjournment of the hearing.

Mr. Morgan then applied to Court that hearing proceed despite the absence of the defendant as the Court had on 1 September 1994 ruled that this case be adjourned for hearing on 21 September at 9.30 a.m. and that no further adjournment will be granted except for very good reason. He argued that Court not to take judicial notice of the said facsimile message. The defendant was aware of the Ruling and by facsimile of 2 September Mr. Sweetman had advised him of the position. The defendant had neither engaged another counsel nor complied with the Court Order to deposit money into Court. Mr. Morgan said that the plaintiff is suffering hardship with no money coming in from the property nor is he getting his property back.

I granted the Plaintiff's application to proceed to hearing as there was a great deal of merit in his application. In fact the defendant does not appear to have taken the matter seriously and his approach to the case leaves much to be desired apart from his complete disregard and disobedience to court orders. In the past the Court and counsel for Plaintiff have leant over backwards to accommodate him but in the end he decided to throw a spanner in the works by dismissing his own counsel without attempting to have himself represented properly on the day of the hearing giving the impression that he is throwing dust in Court's eyes when one looks at the history of the various applications for adjournment.

The Plaintiff gave evidence on oath and confirmed and reaffirmed the contents of his affidavits sworn 16 December 1993 and 17 March 1994. He testified that he is the registered proprietor of the property. He said that the defendant is in occupation of the said property and has failed to pay mesne profits in respect thereof for the period November 1993 to March 1994 at $800 per month which comes to $4000. Nothing has been paid by the defendant from March 1994 until the day of the hearing of this action; arrears for the period April 1994 till 21 September is $4560 making the total arrears the sum of $8560.

Mr. Morgan said that the sum of $800 was paid by the defendant as bond money for 'due performance' under the lease agreement herein. He is not seeking any order as to the bond. Also on the 'option fee', that was paid by the defendant and Mr. Morgan said that is not part of his claim for vacant possession; it is for the defendant to prosecute this aspect of his claim. Hence he says that it is not for the Court to concern itself on the 'option fee' of $1815 paid by the defendant.

The Plaintiff sought orders as follows:-

(1) That the defendant, his family, invitees, agents and guests give up immediate vacant possession of the said property.

(2) That the defendant pay to the Plaintiff the sum of $8560 being mesne profits.

(3) Costs of this action to be taxed if not agreed.

(4) That any claims put forward by the defendant in his affidavit be struck out for want of prosecution.

Upon considering the evidence adduced by the Plaintiff I was satisfied with the Plaintiff's claim for vacant possession and mesne profits in respect of the said property entitling him to immediate vacant possession and mesne profits.

I therefore made the orders sought as stated hereabove being items 1 to 4 with costs against the defendant to be taxed unless agreed.

D. Pathik
Judge

At Suva
22 September 1994

HBC0638D.93S