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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. 0566 OF 2004
Between:
PETER FOON
Plaintiff
- and -
MAHENDRA MAHARAJ
aka MAHEND MAHARAJ
Defendant
CIVIL ACTION NO. 0043 OF 2005
Between:
MAHEN CHAND MAHARAJ
s/o Maniram Prasad Maharaj
Plaintiff
- and -
PETER FOON
Defendant
Counsel: Mr. O’Driscoll for Mahendra Maharaj
Mr. N. Lajendra for Peter Foon
Date of Hearing: 12th December 2005
Date of Ruling: 22nd December 2005
RULING
[1] These two actions concern the premises at 54-56 Carnarvon Street, Suva. There is no dispute that Mr. Maharaj is the owner of those premises. They were leased to Mr. Foon, and that lease expired in December 2004. By Action 0566 of 2004 Mr. Foon sought specific performance of what he said was a five year renewal of the lease. Mr. Maharaj replies that there were negotiations for a renewal but no binding agreement was reached. Hence, he issued proceedings 0043 of 2005 for the ejectment of Mr. Foon from the premises.
[2] Mr. Foon himself is not in actual possession of the premises. He had made a number of sub-leases under the old lease. The history of these need not be explored. The current position is that persons other then Mr. Foon are actually occupying the premises for the purposes of running The Barn Nightclub, Shooters Nightclub, A Restaurant and a Coffee Bar. I was informed from the bar table, without dispute from Mr. Foon’s counsel, that all those currently occupying the premises are paying rental directly to Mr. Maharaj.
[3] There is now before a Notice of Motion for orders that:
“(1) Peter Foon’s claim originally filed in Action No. 566 of 2004 be dismissed for want of prosecution.
(2) Orders be made on the summons for ejectment originally filed in Action No. 0043 of 2005
(3) That the court declare that there is no contract between the parties upon which Peter Foon can rely to extend his tenure of Mahend Maharaj’s premises.
(4) Alternatively for the claim originally filed in Action No. 0566 of 2004 to be dismissed as it would prejudice and delay a fair trial of this action.
(5) The cost of and associated with this application be paid by Peter Foon.”
[4] “The applicant herein relies on the grounds as set forth in the accompanying affidavits of Mahendra Maharaj sworn and filed in support of this Notice of Motion.
[5] “This application is made under Section 169 under Land Transfer Act Cap. 131, Order 18 Rule 18(1)(c) of the High Court Rules 1988 and this honourable court’s inherent jurisdiction.”
[6] In an earlier ruling delivered on the 11th of November 2005 I found that a letter dated 6th of April 2004 from Mahendra Maharaj to Peter Foon did not constitute any form of binding agreement between the parties. To a large extent the applications now before me flow from this Ruling.
[7] Counsel for Maharaj argues that Peter Foon’s writ in 0566 of 2004 was filed a year ago. The reply to the amended defence and defence to counterclaim was filed on the 19th of May. Counsel for Mr. Maharaj states that was over 6 months ago. All subsequent actions and progress in this case have been at the instigation of Mr. Maharaj. Further, he states that Mr. Maharaj’s summons for ejectment of Peter Foon under the provisions of sections 169 of the Land Transfer Act in case 0043 of 2005 have in effect become stalled as a result of the existence of case 0566 of 2004. On the 27th of April 2005 Mr. Justice Winter consolidated these two actions.
[8] Counsel on behalf of Mr. Foon responded that there was no challenge that the previous lease had ended in December 2004. He stated that the letter of “6th of April 2004 laid the platform of an undertaking by the plaintiff and defendant for an extension of the lease”. He continued “it is important to hear the oral evidence concerning the further extension for 5 years. The letter of the 6th of April is not the contract”.
[9] He pointed out there was no loss of rental to Mr. Maharaj as the New Barn Company Limited, one of the nightclubs had been paying rental directly to Mr. Maharaj since October 2004. He averred that Mr. Foon still had the head lease. He said that Mr. Maharaj was also guilty of failing to prosecute his claims with due diligence. He said a summons to progress the matter had been filed on behalf of his client on the 25th of November and they were only served on the 29th of November with the summons now before me.
[10] He averred that it was only the rental factor in the new lease agreement that was outstanding and that the parties had agreed to go to the Prices and Incomes Board to settle that.
[11] I have reconsidered my ruling of 11th of November and considered all the affidavits in and the general progress of these cases.
[12] Even now on the face of all the affidavits before me I cannot find an enforceable contract giving to Mr. Peter Foon a further lease of these premises. Even if I accept as true the oral evidence which Mr. Foon on his affidavits says can be adduced, there is no enforceable contract.
[13] Peter Foon in his statement of claim in 0566 of 2004 “seeks the following relief:
(a) An order for specific performance against the defendant on the issue of the renewal of the lease for 54-56 Carnarvon Street, Suva for a further period of five years;
(b) Alternatively, an order that the defendant will grant the plaintiff a renewal of lease for a period of five years;
(c) An order that the Prices and Incomes Board to assess the rental for the renewed term of the lease”
and damages, interest and costs.
[14] The letter of the 6th of April 2004 reads as follows, it is addressed to the Mr. Peter Foon and comes from Mr. Mahend Maharaj;
“After talks between you and me on the current lease that exists for the above location I would like to reassure you of the following:
(a) The said lease expires at the end of year 2004.
(b) The lease will be renewed for another five years.
(c) The terms and conditions for new lease we will discuss at a later date.
(d) In case of change in ownership the above lease will be transferred.
(e) As of now we have an existing lease and we will abide by its conditions.
I hope the above is of assurance and would like to highlight that I look forward continuing the good relation that had existed between us. For further info I am available.
Thank you
Mahend Maharaj.”
[15] In his claim Mr. Foon has not alleged any kind of promissory estoppel, or other cause of action other than one for specific performance of a concluded contract.
[16] It would appear that the problems arose after April 2004 when Mr. Foon made commitments to other persons on the basis that the lease would be renewed. It was during the period from April to December 2004 that, apparently, the parties fell out and resorted to litigation.
[17] Further, whilst it cannot be said there has been an inordinate delay I do find that, given the circumstances in these cases, there has been a failure by Mr. Foon to prosecute his action with diligence. Nearly 6 months passed by from the filing of the reply and defence to counterclaim without Mr. Foon doing anything to progress his claim. Given the existence of case 0043 of 2005, the circumstances at the premises themselves, the fact that the current occupants are, in law or in fact, behaving as tenants of Mahendra Maharaj, I find the delay is material in the progress of these cases. In this regard the stage of strict “unless” orders had been reached.
[18] Accordingly I find that there is no contract between the parties upon which Peter Foon can rely to extend his tenure of Mahend Maharaj’s premises, namely 54-56 Carnarvon Street, Suva. Action 0566 of 2004 is therefore struck out. I do find that, in the circumstances of this case, Peter Foon’s Action 566 of 2004 is close to being dismissed for want of prosecution. Had the action continued, strict unless orders would have been made.
[19] It follows therefore that, in Case 0043 of 2005, an order against Peter Foon for immediate vacant possession of the premises comprised in Certificate of Title No. 15236 Lot 4 D.P. 2279 and Lot 2 D.P. 2572 situated at 54-56 Carnarvon Street, Suva is made. This is apparently of no real effect given the current facts.
[20] The Originating Summons in 0043 of 2005 also asks for orders against other persons in occupation of the premises. It appears that rental is being received directly from those in occupation. Accordingly I do not make any further order in Case 0043 of 2005.
[21] I make costs awards in favour of Mr. Maharaj in both cases on a party and party basis. I will hear the parties on the quantum of costs.
(R.J. Coventry)
JUDGE
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URL: http://www.paclii.org/fj/cases/FJHC/2005/374.html