Standard Concrete Industries Ltd v Naicker [2005] FJHC 532; HBC0273.2004 (16 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0273 OF 2004

BETWEEN:

STANDARD CONCRETE INDUSTRIES LTD
a division of BASIC INDUSTRIES LTD
PLAINTIFF

AND:

SUBARMANI NAICKER
DEFENDANT

Neel Shivam Lawyers for the Plaintiff
Patel & Sharma for the Defendant

Date of Hearing: 24 June 2005
Dates of Submissions: 15 July, 5 August & 12 August 2005
Date of Ruling: 16 September 2005

INTERLOCUTORY RULING OF FINNIGAN J

This is an interlocutory Application on Notice for return of an item of property. This is exactly the same relief as sought in the substantive action, which was commenced by writ on 1 September 2004. If I grant the relief that will leave only damages and costs at large. If I grant the relief I will have done so on untested affidavits and without any proper assessment of the witnesses.

By now it is to be hoped that interlocutory applications as a short cut to obtaining final relief as a so-called interlocutory measure are a thing of the past in the Lautoka High Court. There was a time when they appeared to be necessary because the Court was unable in many cases to allocate hearing time or substantive actions, partly because of applications like this one. Those days are gone, at least for now.

That said, this is a rare case when, even on the affidavit evidence, it seems proper to give interlocutory relief.

The Facts:

From the affidavits it seems that the Plaintiff owns a truck-mounted concrete mixer bowl. The Defendant admits this. The bowl was fitted by the Plaintiff to the chassis of the Defendant’s truck. The Defendant carted concrete on contract for the Plaintiff. After a time the Plaintiff ceased to see the Defendant’s truck. It has sued for return of its mixer bowl.

The Defendant says the Plaintiff owes him $7,000.00 or more for repair or replacement of his power take-off unit which he says was damaged when the mixer bowl shifted on the chassis because the Plaintiff did not properly put it on. The Plaintiff replies that the Defendant’s driver took the truck for a test drive before the work was complete and never returned it, hence it takes no responsibility for any damage to the truck.

The Action

The action is commenced by the Plaintiff for return of the mixer bowl. It claims its own property. The Defendant admits it is the Plaintiff’s property but says he has a claim of his own. That claim is disputed. The Defendant has taken no steps to counter claim or even to file a statement of defence. He has filed no submissions in opposition to this interlocutory application. He has in fact little or no standing in the action and practically no defence to the Plaintiff’s claim for return of the bowl.

The Submissions

Submissions were filed only by Counsel for the Plaintiff. They are excellent submissions. They are supported by authorities, copies of which are supplied, all contained within one bound volume. I accept that there are serious issues for trial in the substantive action this being the Plaintiff’s right to return of its own property and its right to damages. I accept that damages against the Defendant would on the affidavits presently before me not be an adequate remedy if I refused this interlocutory relief. The Defendant appears not disposed to make any payment and has not disclosed his means. The balance of convenience favours the Plaintiff. None of the rights claimed by the Defendant (by affidavits, no pleadings having been filed) will suffer if the Plaintiff takes back possession of the bowl.

The Order

I make an order in terms of the Notice of Motion filed on 1 September 2004. This is an order that the Defendant immediately return to the Plaintiff the one Faxco model agitator bowl as known to and identifiable by both parties.

I decline to direct police assistance in this civil matter. Parties should use the Court’s enforcement procedures where orders are disobeyed rather than add unsought civil enforcement burdens to the workload of the police.

The costs will be paid by the Defendant. I assess quantum summarily at $800.00.

D.D Finnigan
JUDGE

At Lautoka
16 September 2005.