Vista Fisheries Ltd v Marine Land Ltd [2005] FJHC 729; HBC390J.2004S (27 April 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 390J OF 2004S

BETWEEN:

VISTA FISHERIES LIMITED
PLAINTIFF

AND:

MARINE LAND LIMITED
DEFENDANT

Counsel for the Plaintiff: J. Savou: Jiaoji Savou Esq.
Counsel for the Defendant: Seru T. Naqase: Seru T. Naqase Law Practice

Date of Judgment: 27 April, 2005

Time of Judgment: 9.30 a.m.

JUDGMENT

This is the plaintiff’s application for Summary judgment to be entered against the defendant in the sum of US$13,000.00 or its Fijian equivalent at the date of Judgment. The application is pursuant to HCR Order 14 R.1(1).

The facts are as follows. On or about 10 April 2003, the parties entered into an agreement in which the plaintiff would, at a fee of US$13,000.00 to be paid by the defendant, apply and obtain a "long line tuna licence" for the defendant’s boat to enable it to fish in Fiji waters. The plaintiff delivered the licence, but has yet to receive any payment under the agreement. The details of the arrangements and operation of the licence under the Agreement stipulates that the fees payable was for licence and management including the initial documentations.

It is clear from the evidence that the defendant has acknowledge its liability in the sum of $US$13,000.00. Its letter of 15 April 2004 is unequivocal. Not only does it acknowledge its indebtedness, it makes clear its intention "to pay fully the debt of 13,000 USD, we owe you for the license of 2003." The defendant then proposed a schedule of payment to the plaintiff.

The defendant in its affidavit filed by Michael Benefield, one of its directors, on 22 October 2004, now disputes the amount owed to the plaintiff and claims that the Agreement of 10 April 2003, was void because it was illegal to trade in fishing licence "in this manner." By this phrase, I presume the defendant is referring to the management arrangement put in place to operate the fishing licence obtained by the plaintiff. Instead the defendant contends that the Agreement was nothing more than a "Bareboat Charter" agreement, under which the plaintiff hired the defendant’s boat "M.V. Eleventh" and supplied baits and fuel for the fishing vessel.

The 10 April 2003 Agreement could certainly have been better drafted and expressed. However, the parties intention under it, as far as this Court is concerned, is quite clear. The licence was to be obtained by the plaintiff. It was for the use of "M.V. Eleventh" owned and operated by the defendant. While the fishing operations were run by the defendant, the documentations required to be produced to the Fisheries Department and export licence and permits were provided courtesy of the plaintiff. This was not a Bareboat Charter at all.. Both the defendant and the plaintiff continued to play complementary and active roles throughout the duration of the Agreement.

Each of the parties, knew what they were getting themselves into at the signing of the Agreement. There was never any illegality in is, because the licence obtained was used by the defendant’s fishing vessel but continued to be managed by the plaintiff. At no time was there severance from the plaintiff of the licence’s use and operation. As such, it could never be argued that the licence was given to another. At any rate, the defendant has not convinced this Court that the co-joint operation of the fishing licence which I have described above was illegal.

The facts of the matter, is that there is a contract of service under an Agreement. The plaintiff has performed, the defendant concedes that it has not.

Order 14 r. (1) (1) stipulates that the plaintiff may "on the ground that the defendant has no defence to the Claim included in the Writ," apply to the Court for the judgment against the defendant. In the Court’s view, the defendant can offer no defence to the claim of US$13,000.00, and under the circumstance, I order that summary judgment be entered against the defendant in the said sum or its Fijian equivalent, in terms of the plaintiff’s Summons.

There will be costs of $200.00 to the plaintiff.

F. Jitoko
JUDGE

At Suva
27 April 2005