Krishna v Automart Ltd [2005] FJHC 661; HBC0388.2004L (17 May 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0388 OF 2004L

BETWEEN:

KRISHNA
f/n Mast Ram
1st Plaintiff

AND:

MERCHANT BANK OF FIJI LIMITED
2nd Defendant

AND:

AUTOMART LIMITED
Defendant

AND:

SANJAY SHAKIL RAM
f/n Shish Ram
First Third Party

AND:

COMMISSIONER FOR STAMP DUTIES
Second Third Party

Counsel for the Plaintiffs: Mr. R. Gordon
Counsel for the Defendant: Mr. V. Naidu

Date of Hearing/Date of Ruling: 17 May 2005

RULING

This matter comes before the court by way of Writ of Summons filed on behalf of the plaintiffs. In the statement of claim, the plaintiffs pleaded their cause of action and sought relief, which relief in paragraphs 1 to 5 inclusive was injunctive or by way of order. In addition, the plaintiff sought special and general damages and costs.

The matter comes before the court today for assessment of damages.

The plaintiffs rely on two affidavits in support of their claim. Those affidavits are an affidavit sworn by the 1^st plaintiff and filed at court on the 21^st November 2000 and an affidavit sworn by Saiyad Buksh on behalf of the 2^nd plaintiff and filed at court on the same day. The affidavits are in near identical terms and are in almost identical terms to the statement of claim.

No other evidence has been placed before the court in support of any claim for damages.

No claim for special damages as being particularized as required and no claim is therefore pressed.

In paragraph 17 of the statement of claim it is stated:

“That the said unlawful and illegal seizure and detention has caused and continues to cause the second plaintiff embarrassment, inconvenience, an ability to rely on and/or enforce a valid and registered prime and primary security in the form of the second bill of sale and loss and damage full particulars of which will be disclosed prior to the trial of this action.”

No such particulars appear to have been furnished and none are relied on by the plaintiffs in the course of the hearing of the matter.

Paragraph 16 is in similar terms to paragraph 17 except it relates to the 1^st plaintiff. Paragraph 18 states that the vehicle seized was the only private transport for the 1^st plaintiff and his family. Again, no evidence has been placed before the court as to what reliance, if any, was placed upon the use of that transport by the 1^st plaintiff or his family or of any consequential loss that might have been sustained by the 1^st plaintiff as a result of the inability to use the vehicle for the period of time.

It appears not to be in dispute between the parties that the subject motor vehicle was seized by the defendant from the plaintiff and that the vehicle was retained by the defendant for a period of 14 days and that it was returned following orders being obtained from this court.

The period of deprivation with respect to both the 1^st and 2^nd plaintiff is therefore a period of 14 days.

Paragraphs 20 and 21 of the statement of claim and the submissions on behalf of the plaintiffs that requests were made for the return of the vehicle and for the furnishing of a copy of the alleged Bill of Sale prior to action being taken in the court and that the defendant’s response to the plaintiffs requests was that they should seek their redress in the court which of course they did.

The plaintiffs also, in the statement of claim in paragraph 22, plead that the defendant’s actions were a breach of the plaintiffs’ constitutional rights. It is submitted that the reference to a breach is a reference to a breach of section 27 of the Constitution of the Fiji Islands.

I repeat that no evidence has been placed before the court with respect to any loss that has been sustained by either plaintiff as a result of the actions of the defendant.

Counsel for the plaintiffs has submitted a schedule of damages on behalf of the plaintiffs but no justification has been placed before the court with respect to the apparent arbitrary amounts that are contained in those schedules. No authorities have been placed before the court on behalf of the plaintiffs in support of those arbitrary figures.

There is therefore before the court no evidence that the plaintiffs or either of them in fact suffered a loss as a result of the actions of the defendant. It is of course obvious from the material before the court that the 1^st plaintiff was deprived of the use of motor vehicle for a period of 14 days and that the 2^nd plaintiff was deprived of its security for the advances it made for that same period.

The only head of damages that would appear to be available to the plaintiffs would be an award of exemplary damages. It would appear that the law in this country is as it is in New Zealand and Australia and that is unaffected by the decision of the House of Lords in Rookes v Barnard & Others [1964] UKHL 1; [1964] A.C. 1129. That position is perhaps well summarized by the High Court of Australia in Uren v John Fairfax & Sons Pty. Ltd [1966] HCA 40; 117 C.L.R. 118 at 129 where Taylor J said:

“Prior to Rookes v Barnard the law relating to exemplary damages both in England and in this country was that damages of that character might be awarded if it appeared that, in the commission of the wrong complained of, the conduct of the defendant had been high-handed, insolent, vindictive or malicious or had in some other way exhibited a contumelious disregard of the plaintiff’s rights.”

The court went on to reject the principles in Rookes v Barnard and adopt the pre-existing law which supports the quotation.

It is clear from what has been placed before the court that the defendant could have made appropriate inquires and searches from public records and if it had done so, would have been made aware of the existence of the Bill of Sale, giving certain rights to the 2^nd plaintiff and confirming the non existence of any registered Bill of Sale in favour of the defendant to support the seizure of the vehicle by it. This being so, it seems to me that the plaintiffs are entitled to an awarded of damages as exemplary damages.

The plaintiffs also seek costs on an indemnity basis. A schedule of costs has been placed before the court and its been submitted that schedule should have deducted from it the amount ordered by this court to be paid in its ruling of the 14^th May 2004.

Counsel for the Defendant makes no submission contrary to the plaintiffs’ submission in this regard.

In all of the circumstances therefore I am of the opinion, the plaintiffs are entitled to an award of damages by way of exemplary damages in the sum of $1,000.00 each and that the defendant should pay the plaintiffs’ costs on an indemnity basis, which on the schedule presented to the court amounts to the sum of $5,827.50. There being no defence filed by the third party, it follows that the defendant is entitled to indemnification from the third party with respect to the judgment against it.

The Orders of the Court therefore will be:

1. Verdict and judgment in favour of the plaintiffs in the sum of One Thousand Dollars ($1,000.00) each by way of exemplary damages.
   
2. Defendant to pay the plaintiffs’ costs on an indemnity basis in the sum of Five Thousand, Eight Hundred Twenty Seven and Fifty Cents ($5,827.50).
   
3. Verdict and judgment in favour of the defendant with respect to the third party notice.
   

JOHN CONNORS

JUDGE

At Lautoka

17 May 2005