Khan v Yamada Enterprises [2005] FJHC 348; HBC0048.1992 (24 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0048 OF 1992

BETWEEN:

WASAL KHAN father’s name Bara Khan and
ARSALA KHAN father’s name Sher Gul Khan both of Balata, Tavua,
Proprietors, trading as KHANS BULLDOZING WORKS
PLAINTIFFS

AND:

YAMADA ENTERPRISES
of Suva, Fiji
DEFENDANT

S. Krishna for the Plaintiffs
No appearance for the Defendant.

Date of Hearing: 24 October 2005
Date of Judgment: 24 October 2005

ORAL JUDGMENT OF FINNIGAN J

I have today heard the evidence of Wasal Khan on behalf of the Plaintiffs in support of the Plaintiffs claims.

The Defendant has not appeared and has not been represented by Counsel and the Statement of Claim and counter claim were struck out at the commencement of the hearing.

Having heard the evidence of Wasal Khan on behalf of the Plaintiffs, I am satisfied that the D6 Caterpillar tractor in contention was hired for one month at $5,000.00 and was then unlawfully detained for a further one month and that the Plaintiff is entitled by way of damages for that unlawful detention the amount which it would have received as hire which I fix at $5,000.00.

The Plaintiffs seek special damages for the cost of repair to the vehicle to return it to its condition in which they had parted with it and after hearing the detailed evidence of the Plaintiffs’ witness I am fully satisfied that without documentary evidence I am able to enter judgment in the sum of $7,000.00 rather than the $10,000.00 which the witness initially claimed. I do this relying on my own jurisdiction but there is authority as well which is contained within the judgment of the High Court Chand –v- Nauchi & Thomas Cook (Fiji) (Ltd) Civil Action HBC0302.1995 Judgment 11 June 1997.

Pathik J relied upon earlier authority to make an order in special damages in these circumstances. I have done the same myself in other cases. There will be costs for the Plaintiffs which I fix summarily at $4,000.00 together with $300.00 for disbursements spent in the action plus $100.00 for witness travel for the hearing today, a total of $4,400.00.

Orders

In summary I make the following orders;

1. Judgment for the Plaintiffs on their claim, the Defendant’s Statement of Defence and counter claim are struck out;
   
2. Damages in the Plaintiffs’ favour at $5,000.00 for detention of the bulldozer;
   
3. Special damages for repairs as itemized by the Plaintiffs’

witness in the sum of $7,000.00;

4. Costs which I fix including all disbursements at $4,400.00.
   

D.D Finnigan
JUDGE

At Lautoka
24 October 2005