Moopnar v Director of Lands [2005] FJHC 693; HBC0125.1996L (11 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0125 OF 1996L

BETWEEN:

KRISHNA MOOPNAR
Plaintiff

AND:

THE DIRECTOR OF LANDS
1st Defendant

AND:

THE ATTORNEY GENERAL OF FIJI
2nd Defendant

Mr. R. Singh for the plaintiff
Ms. A. Ali for the defendants

Date of Hearing: 24 October 2005
Date of Judgment: 11 November 2005

JUDGMENT

By Writ of Summons and statement of claim filed on the 11^th April 1996, the plaintiff sought from the defendants arrears of rent and the cost of repairs with respect to 6 flats owned by the plaintiff and leased to the 1^st defendant.

The plaintiff, Krishnan Moopnar has since the commencement of the action died and by Ex-parte Motion of the 30^th April 1997 orders was sought to substitute Nitya Nand Moopnar and Kuppamma as plaintiffs, they being the executors of the estate of Krishnan Moopnar. An order in terms of the summons was made by the Court on the 9^th May 1997. That order appears to have never been sealed. At the commencement of the hearing, the Court was informed that Kuppamma has since died leaving Nitya Nand Moopnar as the surviving executor and trustee of the estate of the plaintiff.

Evidence was given to the Court by Permal Moopnar, a beneficiary of the estate of Krishnan Moopnar and the person handling estate matters in Fiji. He informed the Court he had authority to act as manager of the estate affairs in this country and that authority was produced to the Court as Exhibit P-1.

It is agreed between the parties that the 1^st defendant rented 6 flats at Nadi from the plaintiff at her initial rental for 4 flats at $210.00 each per month and for 2 flats at $130.00 each per month with a total rental of $1,100.00 per month.

The Prices and Incomes Board assessed an increase of rent from $210.00 to $290.00 for 3 flats and $130.00 to $285.00 for 3 flats making a total of $1,725.00 per month effective from the 1^st September 1991.

The Prices and Incomes Board assessed a further increased rental from $290.00 to $320.00 per month for 3 flats and from $285.00 to $315.00 for the other 3 flats making a total rental of $1,905.00 per month from the 1^st April 1993.

It is also agreed that the defendants have refused to pay the increased rental with respect to the premises.

The plaintiff claims rental arrears up to November 1995 totalling $37,635.00, which amount is acknowledged by counsel for the defendants as being the correct calculation in accordance with the plaintiff’s claim. By letter dated 14 March 1991 (Exhibit P-2), Permal Moopnar on behalf of the plaintiff wrote to the District Officer, Nadi, informing him that all repair and maintenance works had been carried out and advising there was an application being made to the Prices and Incomes Board for the approval of rental increases with respect to the flats. By letter dated 26 August 1991, the secretary of the Prices and Incomes Board advised the plaintiff that the rental with respect to Flats 1, 2 and 3 had been increased to no more than $290.00 and the rent with respect to Flats 4, 5 and 6 had been increased to no more than $285.00 (Exhibit P-3).

By letter dated 5^th July 1993 from Patel & Sharma to District Officer, Nadi and demand was made for rental arrears in the sum of $23,190.00 (Exhibit P-4).

The defendant tendered to the Court a memorandum from the District Officer, Nadi to Commissioner Western Division dated 6^th May 1993 (Exhibit D-1) referring to the plaintiff’s claim for payment of the arrears of rental following on the increase effective from the 1^st September 1991 and the further increase effective from the 1^st April 1993.

By letter dated 9^th July 1993, the District Officer, Nadi advised the solicitors for the plaintiff (Exhibit P-5) as follows:

“We acknowledge the receipt of your letter to this office referenced HCS/SS dated 05/7/93.

We deeply regret for any inconvenience caused to your client. However, may we bring to the notice of your good self that this office had in fact recommended the increase desired by your client and had also recommended the updating of the rental that had fallen into arrears.

Unfortunately, this did not materialize possibly due to the fact that there were defects that had to be attended to by the landlord and this resulted indeed to undue inconvenience to your client.

We have now taken necessary steps to regularize the payment of rental that had fallen into arrears to be settled immediately. Furthermore, you should be glad to learn that this should materialize within the time stipulated by you.

We look forward to foster a better relationship henceforth and we assure you that this office will honour its commitment.”

Notwithstanding the admissions made, no payment was made by the defendants to the plaintiff.

From Exhibit D-2, being a memorandum from the Divisional Surveyor Western to the Commissioner Western Division, it would appear that an inspection of the subject premises was carried out on the 4^th April 1995. The memorandum details various works to be carried out by the tenants and by the landlord.

This memorandum appears to be followed by a letter dated the 17^th May 1995 from the District Officer, Nadi to the plaintiff’s solicitors, Exhibit D-3. This letter demanded that all repairs detailed in the earlier memorandum be carried out prior to any payment being made. This appears to have taken place some 2 years after the defendants acknowledged their obligation for the arrears by letter dated 9^th July 1993 (Exhibit P-5).

As a result of the failure of the defendants to pay the arrears of rent, the plaintiff via his solicitors served a Notice to Vacate dated 29^th August 1995 on the Divisional Surveyor Western (Exhibit P-7). As a result of this notice, the Public Works Department handed back the keys to the premises on the 14^th November 1995 (Exhibit P-8).

The evidence of Permal Moopnar on behalf of the plaintiff is that upon the defendants vacating the premises, an inspection was carried out and the repairs necessary pursuant to that inspection were effected. The repairs are detailed in a report by House and Home Associates Limited dated 19^th December 1995 (Exhibit P-9). The cost of the repairs is said to be $6,095.00 and the evidence of Permal Moopnar is that repairs to this value were effected to the property. No evidence was produced to the Court by the defendants rebutting either the need for the repairs at this time or the cost of them.

On behalf of the defendant, evidence was given by Jope Volai, a Senior Valuer of the Lands Department. Whilst Mr. Volai was able to produce various documents that are referred to above he had no personal knowledge of the issue as he was employed in the Western Division in 2003.

Conclusion

On a consideration of the evidence placed before the Court, it is apparent that the defendants have by letter dated 9^th July 1993 (Exhibit P-5) admitted the arrears of rent and the liability for them. Exhibit P-8 confirms that the keys to the premises were returned to the plaintiff on the 14^th November 1995 and the evidence of Permal Moopnar together with Exhibit P-9 indicates the need for the repairs to be carried out to the premises upon the termination of the occupancy and the costs of those repairs. There is no evidence before the Court to rebut either the need for the repairs or the cost thereof. In the circumstances therefore, I am satisfied that the plaintiff is indeed entitled to the rental claimed which by agreement totals $25,760.00 to the 30^th October 1995 and a further $1,905.00 for November 1995 making total arrears of rental of $39,540.00.

The repairs by Exhibit P-9 together with the oral evidence of Permal Moopnar totaled $6,095.00 which makes a total claim of $45,635.00 which amount I find is payable by the defendant to the plaintiff.

The plaintiff claims interest at the rate of 6% on the outstanding arrears of rent.

It is apparent from a perusal of the file that the plaintiff has done very little to progress its claim in this matter. The matter has generally lurched along since 1997 and had it not been for the general call-over conducted by this Court, the matter may have still not come on for hearing.

In these circumstances whilst I am of the opinion that the plaintiff may have a claim for interest on the arrears, it is certainly not entitled to interest at the rate claimed and nor perhaps for the period claimed and on balance therefore, it seems appropriate to decline the plaintiff’s claim for interest in the circumstances.

Orders of the Court

1. Verdict and judgment for the plaintiff in the sum of Forty Five Thousand, Six Hundred and Thirty Five Dollars ($45,635.00).
   
2. Defendants to pay the plaintiff’s costs assessed in the sum of Three Thousand Dollars $3,000.00).
   

JOHN CONNORS

JUDGE

At Lautoka

11 November 2005