Facciola v Nasau [2010] FJHC 119; HBC064.2010L (8 April 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 64 of 2010L

BETWEEN:

ROBERT MAURICE FACCIOLA
Plaintiff

AND:

RATU TIMOCI NASAU
1st Defendant

AND:

PROFESSIONALS WEST REALTY FIJI LTD
2nd Defendant

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr. A. Khan for the Plaintiff

Solicitors: M. K. Sahu Khan & Co. for the Plaintiff
Ex-Parte Application

Date of Hearing: 8 April 2010
Date of Judgment: 8 April 2010

INTRODUCTION

[1] On 8 April 2010 I heard an ex-parte application by the Plaintiff ("Facciola") for an order that the Second Defendant ("Professionals") pay the sum of $940,000 into Court until the final determination of this action. Professionals are real estate agents. That sum was paid by Facciola into Professionals trust account as the Deposit for the purchase of an island which Facciola had contracted to buy from the traditional owners who are represented by their Chief, the First Defendant ("Ratu Timoci").

[2] I granted the order sought and now publish my reasons.

THE BACKGROUND

[3] Facciola filed a Writ of Summons and Statement of Claim and this application on the same day, 8 April 2010. His application was supported by his affidavit in which he says that he is an American citizen and has visited Fiji over the years. He became interested in purchasing a home in Fiji and searched the internet and eventually contacted a Mark Slattery. Facciola and his partner met Mr Slattery of Professionals in Denarau on 15 September 2009 and with Mr Slattery and Carol West also of Professionals on the next day. They were shown several properties over the following fortnight but did not find anything they liked. Two days before they were scheduled to leave Mr Slattery informed them that an island property in the Yasawas had recently come available and if they were interested they could charter a boat and Mr Slattery would take them to it. They agreed so on the next day they were taken to the island by Mr Slattery and Ratu Timoci. Facciola and his partner met with Mr Slattery and Ms West afterwards and discussed the pros and cons of purchasing the island and were told that the only requirement was the approval of 60% of the Chiefs for them to get their lease. They also met with the Professionals representatives and a builder and discussed building their home. On the day they were to return to America, 3 October 2009, Facciola entered into an option to buy the island for US$1.0m exercisable within two weeks with possession on 2 February 2010. On reaching America Facciola changed his mind and notified Mr Slattery that he was not exercising the option because of the remoteness of the island and the price tag but he was prepared to buy for FJD$1.0m. On 5 November 2009 Facciola entered into a Sale and Purchase Agreement as purchaser with Ratu and the Native Land Trust Board ("NLTB") as vendor (the "Agreement") for the purchase of Nayanuya Sesara Island for FJD$1.0m plus VAT, Stamp Duty and the NLTB Annual Lease fee (the "Purchase Price"). The Deposit was FJD$1.0m. Facciola wired FJD$940,000 in to Professionals trust account but withheld FJD$60,000 in America on Mr Slattery’s instructions as the latter was based in America for his commission. Settlement and possession was to take place on 21 December 2009.

[4] Unfortunately, the island turned out to be "native reserve" land which meant that it had to go through a process of "de-reservation" between the landowners represented by Ratu Timoci and the NLTB. That together with the process of surveys, plans and building and other approvals and consents meant that the lease was not likely to be issued for another two years. Obviously, settlement did not take place as agreed.

[5] On 3 December 2009, solicitors for the vendor wrote to Facciola’s solicitors advising that the landowners have signed the de-reservation application which would be lodged with the NLTB shortly. The solicitors also asked for the application under the Land Sales Act for their client’s to sign.

[6] However, on 22 January 2010 Facciola’s solicitors wrote back and advised that for various reasons they considered the Agreement invalid and unenforceable and demanded the return of the Deposit. The money was to be paid within 14 days to the solicitors trust account. The vendor’s solicitors responded on 5 February 2010 refuting that the Agreement was not binding and advised that the vendor had "already moved and taken steps" and requested that the application under the Act be submitted for signature. The letter further said that the demand for the refund of the Deposit was unjustified and a breach of the Agreement entitling the vendor to substantial damages.

THE AGREEMENT

[7] The Agreement was prepared by Professionals. The Deposit was to be paid into Professionals trust account within 5 working days of execution of the Agreement. The Deposit was fully refundable until the contract became "unconditional". The estate being sold was described as "Native Lease". The contract was not subject to finance and not made subject to Ministerial consent. Both the date of settlement and possession was to be 21 December 2009. The settlement date was defined rather sloppily and ambiguously but seems to mean the date notified by the vendor or his solicitor that he has a stamped registrable transfer and requiring the purchaser to settle within 10 days. Time was of the essence. On settlement, the vendor will hand over the registrable transfer and the duplicate title to the property. If the vendor defaults in performance of the contract, the purchaser may rescind or sue for specific performance or damages.

THE PLAINTIFFS EX-PARTE APPLICATION

[8] The Plaintiffs ex-parte motion asks for an order that the Deposit held in Professionals trust account be paid into Court until final resolution of this action or further order.

CONSIDERATION OF THE EXPLANATION

[9] I approach this application as if it were an application for an injunction to restrain Professionals from releasing or otherwise dealing with the Deposit

[10] Order 29 r. 1(2) of the High Court Rules 1988 allows an application by the Plaintiff to be heard ex-parte if the case is one of urgency and proceeding in the usual way would entail irreparable or serious mischief.

[11] I think there is urgency in ensuring that the Deposit is safe. It is a very large sum of money and a dispute has arisen in respect of it. Professionals have no interest in holding on to it because whatever the commission that it is entitled to has been withheld and kept as directed by Mr Slattery. If the Deposit is released to the vendor there is no undertaking to guarantee its repayment if Facciola is found by this Court to be entitled to it. Ratu Timoci cannot offer the island to back up such an undertaking even if he is authorised by his people. Similarly, even if Professionals is ordered to give an undertaking, there might be no justification for it at law because Professionals could argue that it was authorised or otherwise required by Ratu Timoci or otherwise by law to release the Deposit.

[12] The law on the issue of an interim injunction is well settled. The applicant must show that (i) there is a serious question to be tried (ii) are damages an adequate remedy?; and (iii) if the answer to (ii) is in the negative then where does the balance of convenience lie?: Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd [2004] FJCA 59; ABU0011.2004S & ABU0011A.2004S (26 November 2004)

[13] Facciola’s solicitors have raised issues of misrepresentation, illegality, uncertain and incomplete contract, common mistake and default resulting in breach of contract. It is common ground that the prior approval of the NLTB has not been obtained pursuant to the provisions of the Native Land Trust Act. As this is native land, the prior approval of the Minister for Lands is not required. The effect of these matters on the validity of the Agreement is a serious issue that may determine the outcome of this action.

[14] I have already discussed above the inadequacy of an undertaking to damages that could be provided by either of the Defendants.

[15] Had this been an application for the grant of an injunction, I think the balance of convenience lies in favour of the Plaintiff and the grant of an injunction against the release of the Deposit. Information on the financial status of Professionals has not been put before the Court. None of the parties would be prejudiced if the Deposit is paid into Court so I order accordingly.

ORDERS

[16] The Orders are therefore as follows:

1. The Second Defendant shall pay the deposit moneys in the sum of FJD$940,000 held in its trust account on behalf of the Plaintiff into Court by 12.00pm on Friday 9 April 2010 and be held in Court until the resolution of this action or further order.

2. This matter is to be mentioned on Friday 16 April 2010 at 9.30am.

Sosefo Inoke
Judge