On 1 May 1998 the Defendant sought injunctions restraining the Plaintifintiff from interfering with the Defendants operation of Road
Service Licence 12/7/139 and from dealing with the RSL in any manner. The supporting affidavit alleged that the Plaintiff’s director
Colaivalu Vulavou had on or about 19 November 1997 agreed to sell RSL 12/7/139 to the Defendant but that after the Defendant had
fully paid the Plaintiff the purchase price the Plaintiff had renegued and had attempted to withdraw his application previously made
to the Transport Control Board to transfer the RSL to the Defendant.
In an answering affidavit Vulavou denied the agreement but accepted receiving $25,000 from the Defendant. He alleged fraud on the
part of the Defendant and sought dismissal of the injunction application. After discussion it was agreed between the parties that
the Plaintiff would be allowed to continue operating his buses on the route in question but that he would be restrained from dealing
in the RSL until disposal of the action which was to be speedily tried.
On 28 May 1998 the Defendant filed a Defence and Counterclaim. The Defendant denied fraud and sought specific performance of the agreement
which he asserted had been “formalised” by being reduced into writing on 28 January 1998.
On 25 June 1998 the Defendant took out a Summons for Dires. On 15 July there was no s no appearance by the Plaintiff and the usual
orders were made.
On 28 July the Defendant filed a notice seeking a date for a pre-trial confeconference on the ground that Counsel for the Plaintiff
had refused to attend such a conference (O. 34 r 2 (3)).
On 12 February 1999 the Defendant compwith O. 34 r 4 (2) and on 1 on 15 February 1999 the Defendant applied for a date for trial.
On the return date of this application, 20 April 1999 the Plaintiff failed to appear. The trial was fixed for 6 July 1999.
On 6 July 1999 the Plaintiff did not appear. On 7 July Mr. Shankar appeared and tand told me that he had not appeared the previous
day since, although the matter was listed in the weekly cause list he was not aware that it had been fixed for trial on that day.
Had the Plaintiff’s solicitors (a) appeared on 6 July and/or (b) checked the weekly cause list then the hearing fixed for 6 July
would not have been abandoned. I ordered the Plaintiff’s solicitors to pay a wasted hearing fee of $100 by midday 28 July 1999 (see
O. 34 r 6 (2)) and fixed 2 September 1999 for the trial.
On 3 December Mr. B. Solanki appeared for Mr.kar. He told me that Mr. Shr. Shankar would not be available for the trial (one day only
was required) until June 2000. Not surprisingly, Mr. Nagin objected to what amounted to an application for an adjournment for six
months but there was also the question of the wasted hearing fee payment of which had been ordered on 7 July. This had still not
been paid.
Under the provisions of Order 34 Rule 6 (4) failure by a Legal Practitioner to pay a wasted hearing fee by the date stipulated debars
the Legal Practitioner from taking any further part in the proceedings. In the circumstances I fixed 22 February 00 for the trial.
On the morning of 22 February a mile message was received from Mr. G.P. Shankar. He advisedvised that he was otherwise engaged and
sought an adjournment until one of 6 suggested dates in June. Apart from the facsimile there was no appearance by Counsel for the
Plaintiff and neither did the Plaintiff himself appear. I did not accede to the request for an adjournment but instead invited Mr.
Nagin formally to prove the Defendant’s counterclaim.
The Defendant gave evidence on oath and prd a bundle of documents thes the production of which had been agreed at the Pre Trial Conference
held in October 1998. These documents include copies of an application for transfer of the RSL from the Plaintiff to the Defendant,
an agreement between the parties for the sale of the RSL, a receipt for $30,000 and a copy of a cheque from Messrs G.P. Shankar for
$25,000 “refund of deposit” to the Defendant. The Defendant told me that the application and the agreement was signed by the Plaintiff
in his presence. The Defendant also produced a list of cheques drawn on his Westpac Bank account which he told me represented payments
totalling $30,000 to the Plaintiff.
Although it is clear that the Plaintiff changs mind at least twice I accI accept the Defendant’s evidence that the agreement of 28
January 1998 represents the agreement reached between the parties.
ass=MsoBodyText Text align=left style="text-align: left; margin-top: 1; margin-bottom: 1"> The Plaintiff’s claim was not presented or argut is dismissed. There will will be judgment for the Defendant on the Counterclaim.
Mr. Nagin did not pursue the claim for damages telling me that they would not in any event be recoverable from the Plaintiff. He
did however ask for costs. He invited me to assess them and suggested a figure of $3,000. Given the history of this litigation I
think that figure is reasonable.
