Pathak v Sami [2005] FJHC 327; HBC0168.1998L (26 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0168 OF 1998L

BETWEEN:

LAXMI CHANDRA PATHAK f/n Jagdish Sharma
AND SHERIN VANITA PATHAK f/n Michael Dass
Plaintiff

AND:

NARAYAN SAMI
f/n Armogam
Defendant/Cross-Claimant

No Appearance for the plaintiff
Mr. J. Boseiwaqa for the defendant/cross-claimant

Date of Hearing: 26 October 2005
Date of Judgment: 26 October 2005

EXTEMPORE JUDGMENT

In this matter the plaintiff commenced proceedings by way of a Writ of Summons and statement of claim dated the 4^th June 1998.

The defendant filed a statement of defence and a counterclaim on the 12^th August 1998 and an amended statement of defence and a counterclaim on the 14^th May 2000.

The plaintiff does not appear to prosecute the claim and accordingly, the plaintiff’s claim against the defendant is struck out.

The defendant has died and by orders made on the 5^th April 2002, Yangtamma as administratrix of Narayan Sami was substituted as defendant.

The issue between the parties arises out of the construction of a residential building pursuant to an agreement between the parties dated the 27^th October 1997. That agreement provided for a contract price of $85,000.00 and then further provided for 17 progress payments to be made in accordance with the stages of completion referred to in the agreement. The agreement also relevantly provided that if either party terminated the agreement then the sum of $5,000.00 is payable by way of fine and damages.

Some four months after the commencement of constructions, the plaintiff terminated the agreement. The dispute apparently arose over the colour of the roof cladding.

The defendant removed the offending roof cladding and was then locked out of the site. At the time of such lock out and thereafter, the defendant was unable to retrieve various items of building equipment and tools which are detailed in the counterclaim and which have a total value of $7,630.00.

The plaintiff had made some progress payments in accordance with the terms of the agreement and immediately prior to the lock out had purchased some materials, the particulars are set forth in the counterclaim. There were 3 variations to the contract with are evidenced by Exhibits 2, 3 and 4 and these items are detailed in the counterclaim and have a total value of $13,939.00.

Having heard from the son of the defendant who was privy to the contract and was present on the site throughout the constructions and the termination of the contract, I am satisfied that the plaintiff is indebted to the defendant as alleged in the counterclaim. I am satisfied that the sum of $14,540.00 is outstanding from the plaintiff to the defendant and the sum of $7,630.00 is payable by the plaintiff to the defendant for the goods seized.

The defendant seeks damages. However by virtue of the terms of the agreement those damages are capped at $5,000.00 and I am satisfied that the defendant/cross-claimant has an entitlement to that amount.

The defendant/cross-claimant seeks costs and that those costs be summarily assessed in the sum of $5,000.00. I note that this matter has a long history having lurched along since 1998 and accordingly, I consider the amount claimed in the circumstances to be reasonable.

Orders of the Court

1. Verdict and judgment in favour of the defendant/cross-claimant in the sum of Twenty Seven Thousand, One Hundred and Seventy Dollars ($27,170.00).
   
2. The plaintiff is to pay the defendant/cross-claimant’s costs assessed in the sum of Five Thousand Dollars ($5,000.00).
   

JOHN CONNORS

JUDGE

At Lautoka

26 October 2005