Rapchan Holdings Ltd v Native Land Trust Board [2005] FJHC 658; HBC0438.2003L (13 May 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0438 OF 2003L

BETWEEN:

RAPCHAN HOLDINGS LIMITED
Plaintiff

AND:

NATIVE LAND TRUST BOARD
Defendant

Counsel for the Plaintiff: Mr. F. Koya
Counsel for the Defendant: Mr. K. Qoro

Date of Hearing: 22 April 2005
Date of Judgment: 13 May 2005

JUDGMENT

This matter is before the court for assessment of damages and costs.

Background

Ramend Kumar Charan, the major shareholder of the plaintiff company, acquired from members of his family Legalega M/L 116 NLTB Ref. No. 4/10/4581 containing .75 acres and on the 9^th November 1992 made application to the defendant for a 99 year commercial lease with respect to that same land and to convert it into a tourism lease.

By letter dated the 23^rd May 1994, the defendant approved the conversion of the lease from agricultural to commercial.

Prior to that time, the land had been used for a rice farm and required extensive filling to make it useful for the construction of a proposed tourism office and other development.

The lease for tourism purposes is dated 19^th November 1999 and the endorsements on it indicate that it was stamped by the Commissioner of Stamp Duties on the 7^th November 1999, is numbered Native Lease 25050 and was registered with the Registrar of Titles on the 9^th December 1999 at 12.45pm.

Whilst the lease is dated 19^th November 1999, it purports to commence from the 1^st July 1994 and be for a term of 99 years from that date.

The provisions of the lease are indeed in conflict, as Clause 3(b) requires the lessor to submit detailed design plans elevations and specifications for a tourist resort on or before the 1^st September 1994, notwithstanding that the lease is dated 19^th November 1999.

The plaintiff prepared plans for the development of the site, which plans were approved on the 1^st August 2003 by the Nadi Rural Local Authority and on the 21^st July 2003 by the Native Land Trust Board. Further plans appear to have been approved by the Nadi Rural Local Authority on the 6^th October 2003.

It appears from the evidence before the court, the affidavit of Ramend Kumar Charan filed on the 10^th December 2003, that the delay in the execution of the lease was a delay occasioned by the defendant.

By letter dated 22^nd September 2003 the defendant said:

“Above all we are also mindful of the benefit that goes out to the landowners which without a fully operational resort would be very small. It is through this that we have decided to take legal action unless there is firm undertaking from your client that the development will get off the ground within the next 3 months.”

Notwithstanding the contents of this letter, a further letter written to the plaintiff’s lawyers dated 30^th September 2003 by the defendant says:

“That being the case you are to quit and give vacant possession of the subject land to the Board immediately. You are not to enter or engage in any work whatsoever on the subject land.

In the circumstances you are hereby advised to disregard the content of the aforestated letter giving any purported impression of negotiation on the issue.”

The defendant then served upon the plaintiff two notices being purported execution of re-entry powers pursuant to Clauses 2 and 3 of the Lease Agreement. These notices were dated respectively the 30^th September 2003 and 1^st October 2003.

It would appear that subsequent to these notices, the defendant issued a fresh lease to a third party. The land, subject of the lease, has been filled at the expense of the plaintiff and all plans have been prepared and approved for the construction of the tourist facility on the site. The approval of the plans included the approval by the defendant.

Assessment of Damages

The history of this matter is indeed regrettable and the behaviour of the defendant has been most unhelpful to the court. On the hearing of this matter, the defendant placed no evidence before the court and made no submissions. Counsel for the Defendant cross-examined the plaintiff’s witnesses.

The directors of the plaintiff company have given evidence to the court of the works carried out and the attempts made to fulfil the obligations under the lease and to commence the development on the site. They have tendered to the court the Development Permission obtained from the Nadi Rural Local Authority on the 30^th September 2003 for the commercial development of the site. Accountants engaged on behalf of the plaintiff have prepared details of the costs incurred by the plaintiff up to the 28^th February 2005 with respect to the project and have also furnished to the court details of the loss of business opportunity suffered by the plaintiff company as a result of the termination of the lease by the defendant.

As I have said, there has been no evidence placed before the court by the defendant to challenge in any way the evidence given on behalf of the plaintiff.

The accountants’ report determines that the detailed costs incurred amount to $343,190.50 and that the value of the business opportunity is $1,300,000.00 making a total loss of $1,643,190.50.

Orders of the Court

1. Verdict and judgment for the plaintiff in the sum of One Million, Six Hundred Forty-Three Thousand, One Hundred Ninety Dollars and Fifty Cents ($1,643,190.50).
   
2. Defendant to pay the plaintiff’s costs assessed in the sum of Three Thousand Dollars (3,000.00).
   

JOHN CONNORS

JUDGE

At Lautoka

13 May 2005