|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
Civil Action No: HBC 142 of 2006L
BETWEEN:
MOHAMMED FIROZ HANIF
f/n Mohammed Hanif and
YASHMIN FEROZA HANIF
f/n Mohammed Kutty Ahmed
Plaintiffs
AND:
MOHAMMED AZAM SHAH
f/n Mohammed Kutty Ahmed
Defendant
FINAL JUDGMENT
Judgment of: Inoke J.
Counsel Appearing: Mr Lutumailagi for the Plaintiffs
No appearance by counsel or in person
Solicitors: Patel & Sharma for the Plaintiffs
Unrepresented at the time of the hearing
Date of Hearing: 2 February 2010
Date of Judgment: 30 April 2010
INTRODUCTION
[1] This is a judgment after formal proof of the Plaintiffs’ claim filed in 2006. The claim is for repayment of monies in a failed business arrangement between the parties.
[2] The first named Plaintiff, Mohammed Firoz Hanif, is the Defendant’s brother-in-law and the second named Plaintiff, Yashmin Feroza Hanif, is the Defendant’s sister.
THE CASE HISTORY
[3] The Plaintiffs who now reside in Canada filed their Writ of Summons through their Fiji solicitors on 25 May 2006. They allege that in 2005 they sent $CAD50,200 (Canadian Dollars) to the Defendant to invest in a car rental business that the parties were intending to start in Fiji.
[4] On the same day Connors J made the following orders (“Interim Order”) on the Plaintiff’s Ex-parte Motion and adjourned the application to 2 June 2006:
1. That the Defendant disclose to this Honourable Court, within seven (7) days, what he has done with the Plaintiff’s monies in the sum of $CAD50,200.00 (Fifty Thousand and Two Hundred Canadian Dollars);
2. That the Defendant’s bank account(s) in any of the commercial banks in Fiji be frozen forthwith until further Order of this Honourable Court;
3. That the Defendant disclose to this Honourable Court, within seven (7) days how he has expended the Plaintiff’s monies in the sum of $CAD50,200.00 (Fifty Thousand and Two Hundred Canadian Dollars);
4. That until further Order of this Honourable Court, the Defendant is restrained forthwith from transferring or dealing with in any manner whatsoever any asset bought viz the Plaintiff’s monies in the sum of $CAD50,200.00 (Fifty Thousand and Two Hundred Canadian Dollars);
5. That until further Order of this Honourable Court, the Defendant is restrained forthwith from transferring or dealing with in any manner whatsoever any unspent portion of the Plaintiff’s monies in the sum of $CAD50,200.00 (Fifty Thousand and Two Hundred Canadian Dollars).
[5] The Interim Order was sealed on 26 May 2006 but was only served on the Defendant on the day before the next call of the application on 2 June 2006 so the application was further adjourned to 16 June 2006 with the orders extended accordingly. On 13 June 2006, the Defendant’s solicitors filed a Summons for dissolution of the Interim Order with the Defendant’s affidavit in support, returnable on 16 June 2006. His Defence and Counter-claim was also filed on 13 June 2006. On 16 June 2006, further directions were given for the filing of affidavits and the application was adjourned to 7 July 2006. On 7 July 2006, further directions were given by Philips J for filing of affidavits and the matter adjourned to 14 July 2006 to fix a date of hearing of the Defendant’s application. On 14 July 2006, Phillips J was informed that the Interim Order had not been complied with so the Judge ordered that the Defendant comply with the Order by 20 July 2006 and the application called on 21 July 2006 to fix another date for hearing of his application. No counsel appeared on 21 July 2006 so the Judge adjourned the matter to 28 July 2006 and noted on the Court file that if the Plaintiff did not appear then the action was to be struck out. On 28 July 2006, the Defendant sought a further adjournment to file his affidavit in reply and the Plaintiff not objecting the Judge granted the Defendant 14 days and adjourned the application to 25 August 2006 to fix a date for hearing. Again, on 25 August 2006, the Defendant sought a further 7 days to file his affidavit and no objection being taken, the application was adjourned to 1 September 2006 to fix another date of hearing. That affidavit was not filed until 29 August 2006. The file note by the Judge for 1 September 2006 recorded that counsel appearing did not have the diary for the solicitors on record so he sought a further mention date to fix a hearing date. The application was further adjourned to 8 September 2006 to fix another date of hearing. On 8 September 2006, the application was finally set down for hearing on 20 October 2006. The file note by the Judge for 20 October 2006 reads: “Because of the heavy schedule today, counsel want to file written submissions. (Defence Counsel): additional prayer (iii) ‘namely no consent approval FTIB’; no objection”, so the Court granted leave for the Defendant to amend his application, gave directions for the filing of submissions and adjourned the hearing to 24 November 2006 to fix the date for judgment. No submissions were filed by the Defendant so further directions were given and the application was adjourned to 19 January 2007 for review. Still no submissions were filed by 19 January 2007, so further directions were given and the application further adjourned to 23 February 2007 for further review. Further direction were given on 23 February 2007 and the hearing set for 20 April 2007. On 20 April 2007, both parties asked for a week’s adjournment so the hearing was re-scheduled to 15 May 2007. There is no note of the matter being heard on 15 May 2007. Instead the file note for 1 June 2007 states that the hearing was reset for 6 July 2007. On 6 July 2007, counsel for the Defendant informed the Court that the parties were talking settlement and asked for 2 weeks adjournment so the matter was again adjourned to 20 July 2007 for mention. On 20 July 2007, yet further directions were given to the Defendant to file and serve his submissions in reply and his application adjourned for mention on 14 September 2007. On 14 September 2007, the Court was informed that this was a family dispute capable of settlement and counsel asked for a further adjournment. The application was adjourned to 5 October 2007 for review of settlement negotiations. On 5 October 2007 it was further adjourned to 2 November 2007 on counsels informing the Court that the matter was about to settle. Needless to say the matter was not settled by 2 November 2007 so it was adjourned to the Master for mention on 28 January 2008 and 4 mentions later and further directions orders, the application came back before Phillips J on 29 May 2008 who set the application down for hearing on 18 July 2008. The file notes do not explain why the hearing did not proceed on that day but it eventually came to be heard on 6 October 2008. Phillips J gave an ex-tempore ruling on 6 October 2008 dismissing the Defendant’s application with costs, allowed the Plaintiff to file an amended statement of claim and adjourned the matter before the Master on 14 November 2008 for directions. On 6 October 2008, Messrs Law Naivalu filed a notice of change of solicitors for the Defendant instead of Gordon & Co. Nothing seemed to have happened until 11 February 2009 when the action was called before the Master who gave directions. The next call was on 14 September 2009 when Master Tuilevuka gave directions for the filing of the amended Defence and adjourned the matter to 29 September 2009. On 23 September 2009, despite the notice of change of solicitors, Gordon & Co filed an application to withdraw as solicitors and counsel for the Defendant. That application was served on the Defendant on 23 September 2009 according to the affidavit of service. When the matter was called on 29 September 2009, Mr Gordon, Counsel for the Defendant, informed the Master that the Defendant had been served but the affidavit of service had not been filed and the Master adjourned the application to 6 October 2009. The affidavit of service was filed on 5 October 2009. Leave for Gordon & Co to withdraw was granted by the Master on 6 October 2009. The Defendant failed to appear in person or by counsel since. The matter eventually came before me on 11 December 2009. Counsel indicated that the Plaintiff wanted to rely on the affidavit material as evidence and I directed counsel to file the appropriate application to be heard together with the formal proof on 2 February 2010.
APPLICATION TO USE AFFIDAVIT MATERIAL
[6] The Defendant did not appear at the hearing on 2 February 2010 either in person or by counsel. The Plaintiff Mohammed Firoz Hanif swore an affidavit that he and his wife, the Plaintiff Yashin Feroza Hanif, reside in British Columbia, Canada and that they could not come to Fiji to give evidence on short notice, nor could they come here at any time within the up-coming months. On their counsel’s application I exercised my discretion under O. 38 R. 2 of the High Court Rules 1988 and granted leave to the Plaintiffs to rely on their affidavits as evidence in this action.
THE CLAIM
[7] The claim as pleaded in the Amended Statement of Claim is as follows:
- That the Plaintiffs and the Defendant made an arrangement sometime in August, 2005, to be business partners in a rental car business in Nadi or Lautoka, Fiji (‘the Agreement’).
PARTICULARS
(ii) The Defendant used the monies to buy four Motor Vehicles – Registration Numbering being EU 970 (Nissan Sedan), EU 825 (Toyota Sedan), EU 826 (Toyota Sedan), and EU 518 (Toyota Station Wagon).
(iii) The Defendant’s Solicitors, Messrs Suresh Chandra Maharaj & Associates of Lautoka applied to the Fiji Islands Trade and Investment Bureau (‘FTIB’) for approval of the Plaintiff’s proposed investment in the business.
(iv) While the parties’ application to the FTIB was pending, the Defendant rented the said Motor Vehicles out and kept the rental fees for his exclusive use.
(v) The parties’ application to FTIB was not approved; therefore the Plaintiffs spoke with the Defendant and advised that the Motor Vehicles be sold to recover the monies.
WHEREFORE THE PLAINTIFFS CLAIM THE FOLLOWING FROM THE DEFENDANT:
THE FORMAL PROOF
[8] Counsel relied on Mr Hanif’s affidavit sworn on 11 May 2006 and filed on 25 May 2006 and his further affidavit sworn on 29 June 2006 and filed on 20 July 2006. Those affidavits confirm the matters pleaded in the Amended Statement of Claim and I accept them as proof of the Plaintiffs’ claim as pleaded.
[9] I also accept the finding of Phillips J in her extempore ruling of 6 October 2008 that:
There is no dispute that the sum of $CAN50,000 was sent by plaintiff to Fiji and was received by the defendant and that he retains the proceeds of sale of the motor vehicles, the purchase of which was funded (by) the plaintiff. More importantly he had defied Connors J’s order to account for those monies...”
[10] The Defendant filed a Defence and two affidavits which amount to no more than bare denials of the Plaintiffs allegations and I reject them as sufficient to cast any doubt on the Plaintiffs claim.
[11] I also reject the Defendant’s submission that the parties arrangement and subsequent transaction is tainted by illegality in that no approval of the Fiji Trade and Investment Bureau was obtained.
[12] I therefore find that the Plaintiffs have proven on the balance of probability that the Defendant is liable and it is now left for me to decide the quantum of damages that I am to award.
SPECIAL DAMAGES
[13] I find that the Plaintiffs have proven their entitlement to repayment of the sum of $CAD50,200 which they sent to the Defendant and the Defendant must repay the moneys accordingly.
AGGRAVATED DAMAGES
[14] Counsel for the Plaintiffs cited several cases. The first of these were Seniloli v Voliti [2000] FJHC 28; Hba0033j.1999s (22 February 2000) in which Shameem J quoted the following passage:
In X v. Attorney-General (1996) 2 NZLR 623, Williams J said at p.630:
“As to the law, in the pithy phrase employed by the learned authors of Hewston and Buckley: Salmond and Hewston on the Law of Torts 19th ed. (1987) p.594. “Aggravated damages are given for conduct which shocks the plaintiff: exemplary damages for conduct which shocks the jury”.”
At page 631 of his judgment Williams J went on to say:
“As to punitive or exemplary damages, .... it is enough to note that such damages are only awarded to punish the defendants because of the outrageous or contumelious way in which they have conducted themselves in committing the tort for which they are sued (Donselaar v. Donselaar [1982] NZCA 13; (1982) 1 NZLR 97 .... As Auckland City Council v. Blundell [1986] NZCA 86; (1986) 1 NZLR 732 at p.739 makes clear, exemplary damages must be “fairly and reasonable commensurate with the gravity of the conduct thus condemned”.”
[15] In that case, the learned Judge found in respect of the award for aggravated damages that:
This was a case of a deliberate flouting of the law, and of conscious acts on a vulnerable and young member of the public, which caused distress and humiliation to the plaintiff. I am therefore of the view that the outrageous and contumelious conduct of the defendant, justified an additional award of punitive or exemplary damages.
The question remaining is as to whether the amount awarded was unrealistically high. The Court of Appeal in Marika Lawanisavi v. Kapieni ABU 49/98 emphasised the need to consider local, social and economic conditions when approaching quantum of damages. Scott J in Sivorosi Raikali v. A-G (supra) considered $1,700 per hour, to be a generous award for false imprisonment in Fiji. However, he was considering an award for an adult who had lawfully served 12 years imprisonment, but who had been unlawfully detained for 11 months longer than he should have. Nor was that award one for aggravated damages.
I consider an award of $1,700 per hour for a child whose arrest and detention were unlawful and who should never have been arrested at all, entirely appropriate. The award of $10,000 by the learned magistrate seems to be higher than is appropriate given Fiji’s social and economic conditions. I therefore allow the appeal against the award for aggravated damages to the extent that I reduce the award to $6,800.
[16] Seniloli (supra) was considered by Byrne J, as he then was, in Kasim v Commissioner of Police [2001] FJHC 133; HBC0471.1999 (3 December 2001). The plaintiff Kasim was detained by Immigration officers at Nadi Airport unlawfully on two separate occasions without any excuse, explanation or apology given. As a result, he failed to secure a contract that he was on his way to New Zealand to secure. Byrne J found that:
Although the Plaintiff claims general damages, in my judgment his proper claim is for aggravated damages. In Gary Mark Lackersteen v. Melvin Lawrance Jones and Others (1988) NTSC 60 Asche C.J. described the difference between aggravated and exemplary damages after reviewing various authorities on the subject. He said, "The basis for aggravated damages lies in compensation of a particular kind based not on physical injury or discomfort but on humiliation and injury to feelings". He went on, "There can not be any implication that a person of bad reputation cannot be humiliated and insulted". In the instant case the Plaintiff did not have a bad reputation although he had committed some criminal offences for which he had been duly punished. I have been referred to a number of authorities on the question including Josaia Vakacoko v. The Commissioner of Police HBC 145 if 1998S, unreported judgment of Scott J. of the 10th of December 1999, Epeli Seniloli and Another v. Semi Voliti HBA No. 0033 of 1999, unreported judgment of Shameem J. of 22nd February 2000 and Marika Lawanisavi and Other v. Pesamino Kapieni ABU 0049/98S, unreported judgment of the Court of Appeal of the 13th of August 1999. Whilst I find these judgments of some assistance the facts in them particularly in Vakacoko and Seniloli which were both cases of unlawful imprisonment are different from those in the present case. Both Judges awarded damages, in the case of Vakacoko, $4,000.00 for wrongful detention for six days in a small cell without any mattress, pillow or mosquito coil and in the case of Seniloli, $6,800.00 for four hours detention of a boy aged 14 who was handcuffed to a post for a time.
It seems that in neither of these two cases was the question of constitutional rights argued although in Seniloli the Plaintiff relied on the United Nations Convention on the Rights of the Child. Here the Plaintiff makes his claim for exemplary damages on the Constitution to which I shall refer in a moment. Before doing so however I consider it fair to award the Plaintiff aggravated damages for the humiliation he suffered of $5,000.00.
[17] The next case referred to by Counsel was the decision of Gates J, as he then was, in Shah v Narayan [2003] FJHC 340; HBC0098.1994L (19 September 2003) in which his Lordship sets out the facts which gave rise to the claim for aggravated damages and the law as follows:
Aggravated damages
[113] The Plaintiff claims aggravated damages. When the foreign body came to light at the time of the sinogram, Dr Tami asked the Plaintiff in the presence of her husband when she wanted it removed. The Plaintiff said she did not want it to be removed at Lautoka but wanted it removed overseas. Dr Tami then got angry and started shouting, saying it "was just a minor operation, why can’t you have it here." That interview ended unpleasantly and he asked them to return on 16 August.
[114] The next interview was no better. Dr Tami thought they might have changed their minds. They had not. The Plaintiff said she had no faith in them anymore. "Why are you here? I am closing the file. This is the end of it" said Dr Tami. He was so angry he could not talk to them said the Plaintiff. He refused them the report and banged the door.
[115] They made a further approach to obtain a report for overseas referral, this time through a friend intermediary. Dr Tami’s attitude improved. Dr Narayan was to do the report. She waited patiently outside his clinic. But Dr Narayan treated them brusquely, telling them he had already refused to give them a report. He said "I do not want to see you at all". This was said in front of patients and hospital staff. He shouted that he would not give the report. The Plaintiff eventually got her report, but there was still more of a run-around that she was to be put through first.
[116] In Himmat Soni v AG & 2 Others (unreported) Lautoka High Court Civil Action 279.84S; 7 July 1989 Jayaratne J. awarded $5,000 for aggravated damages. His lordship had this to say:
"There is evidence in this case to the effect that he was unable to meet any doctor at the hospital when he arrived there on hearing of his wife’s condition. It must have been indeed a very anxious moment. He was trying to take her away for overseas treatment. His feelings must have been definitely bent beyond any measurable degree. There is no doubt about it.
The following is an excerpt of his evidence in Court:
"Immediately I went to Lautoka Hospital. She (wife) was in the Intensive Care Unit.... She was unconscious. I met Dr. Nair. He said "It is not my fault." I tried to find out her condition. I met Dr. Oldmeadow. I sought permission to take her overseas for treatment. I could not get any information about her condition."
This sort of attitude is most despicable and disgusting to hear of. When the plaintiff is in such agony and anguish and fear for the life of his wife and when he is rebuffed and pushed from pillar to post being still unable to obtain information about the wife, it can only be described as most deplorable. Husband being not in a position to get information about his wife’s condition who was more or less was breathing her last is aggravating indeed. The condition that she was in was brought about by the negligence of the 2nd defendant who administered the anaesthetics’. It became an overdose. Furthermore there was a restriction on the use of oxygen which was in short supply. I consider it reasonable in the absence of any guidelines for a computation of compensation to award $5,000 under the head."
[117] The whole issue of aggravated damages and exemplary damages has been referred to by Lord Hailsham LC in Cassel & Co v Broome [1972] UKHL 3; [1972] AC 1027 at p.1073 as one of "inextricable confusion". He said:
‘In awarding "aggravated" damages the natural indignation of the court at the injury inflicted on the plaintiff is a perfectly legitimate motive in making a generous rather than a more moderate award to provide an adequate solatium. But that is because the injury to the plaintiff is actually greater and as the result of the conduct exciting the indignation demands a more generous solatium.’
[118] Woolf J. in Kralj v McGrath [1986] 1 All ER 54 at p.61 said:
"It is my view that it would be wholly inappropriate to introduce into claims of this sort, for breach of contract and negligence, the concept of aggravated damages."
His lordship said he considered it inconsistent with the general approach to damages in this area "which is to compensate the plaintiff for the loss she has actually suffered."
[119] However I believe it is right to allow the Plaintiff to be compensated by the public authorities for the matter of her treatment by their public servants. In Kralj the "horrific and wholly unacceptable treatment" was that the obstetrician had performed a procedure without anaesthetic. In the instant case the feelings of the Plaintiff had been affected at a particularly vulnerable time, as a result of the injury requiring rectification. She was to be ill-treated for the mistakes of the hospital staff upon her, and was treated disgracefully for their sense of guilt. For this she is deserving of some compensation. I award $4,000 under this head.
[18] Counsel submitted that I should award $5,000 for aggravated damages in this case. The above cases in this jurisdiction in which aggravated damages have been awarded involve public authorities. I am mindful of the dicta by Woolf J. in Kralj v McGrath [1986] 1 All ER 54 at p.61, that it would be inappropriate to introduce the concept of aggravated damages in claims for breach of contract. However, in that case Woolf J awarded aggravated damages on the basis of compensation for Mrs Kralj’s loss and suffering because of the “horrific and completely unacceptable” treatment indicating “very bad practice” which she received from the defendant obstetrician.
[19] The unreported decision of Govind Prasad v NLTB & Ratu Sakiusa Makutu [2002] HBC 145/2002 (Judgment of 31 March 2006) in this Court is a case on point. In that case, the plaintiff remained on his sugar cane farm after his 30 year lease had expired on 31 December 1999 with the knowledge and consent of the NLTB pending the issue of a new lease. The plaintiff had done all that was required of him for the issue of his new lease and the NLTB wrote to the Sugar Industry Tribunal confirming that the plaintiff was a fully paid up leaseholder from 1 July 2000. His lease was also registered with the Registrar of Titles. About a year into the new lease, Ratu Makutu started coming on to the plaintiff’s farm demanding the plaintiff pay him $5,000. The plaintiff refused. He told Ratu Makutu that whatever that was owing had been paid to the NLTB, but he was willing to pay the demand if Ratu Makutu would give him a receipt. Ratu Makutu then told the plaintiff to give his tractor to all the other users of the land. On 31 August 2001 Ratu Makutu came on to the plaintiff’s house in a van with four or five other persons. They demanded the plaintiff give them his tractor which the plaintiff refused so they threatened him and his family of seven children with violence if they did not leave the farm within three days. So out of fear the plaintiff and his family left leaving everything behind. When he approached the NLTB for assistance he was offered none and was told instead that even though his lease was registered he was not getting it.
[20] Govind Prasad sued the NLTB and Ratu Makutu and they not having filed their defences, obtained default judgment. This Court refused to set aside the default judgment and went on to assess the Govind Prasad’s claim for damages. After awarding general damages of $250,000, Finnigan J said this in respect of aggravated damages, at paragraphs 22 and 23[1]:
In addition, the Plaintiff seeks aggravated damages and exemplary damages. There is a clear distinction between these two forms of damages, the former being compensatory and the latter punitive. Aggravated damages compensate the Plaintiff if he has been hurt or upset by the nature of the breach of his rights. Exemplary damages are aimed directly at punishing a wrong including a wrong done in breach of property rights. They are directed at high-handed, insolent, vindictive or malicious conduct or conduct which exhibits a contumelious disregard of a Plaintiff’s rights. In the present case the Plaintiff has in my view made out a case for both.
He claims damages only for himself. I exclude any injury or loss that might be thought to be claimed by any of his dependants, including the son who gave evidence. The Plaintiff alone has shown that he has been deeply hurt by the offence that has been offered him and has in addition suffered a substantial de4crease in self-confidence and self-respect. It is clearly a case for aggravated damages and (again without any guidance) I assess these in the sum of $10,000 as claimed.
[21] Support for compensation for humiliation and hurt feelings in an award for aggravated damages can also be found in dicta in Lord Devlin’s formulation of the categories of cases for exemplary damages in Rookes v Barnard (supra) at page 1226:
It is true that there is something repugnant about a big man bullying a small man and, very likely, the bullying will be a source of humiliation that makes the case for aggravated damages, but it is not, in my opinion, punishable by damages.
[22] What are the aggravating factors in the present case? Counsel wrote in his submissions that I should take into account the Defendant’s blatant disregard and deliberate refusal to correspond with the Plaintiffs in the aftermath of his breach of their agreement and his attitude to this Court in failing to appear since 6 October 2008 and refusing to comply with the Interim Order of 25 May 2006.
[23] The facts in this case are far less oppressive than those in Ratu Makutu’s case, although this Court takes a very dim view of the Defendant’s failure to comply with its orders. This is a dispute between close family members. Whatever the reason for non compliance or failure to communicate has not been explained by the Defendant and this may have added to the frustrations of the Plaintiffs but I do not think that such feelings are sufficient by themselves to justify an award for aggravated damages.
GENERAL DAMAGES
[24] It seems to me that the Plaintiffs only significant and compensable loss, apart from the money itself, is not being able to use it. Such a loss can be compensated in interest. I think it is clear that when the Interim Order was granted on 25 May 2006, Connors J was of the opinion that the Plaintiffs were entitled to immediate repayment of the sum of $CAD50,200. There is no agreement on how much interest was payable under the parties Agreement. This was a commercial transaction I think the Plaintiffs are entitled to interest at a reasonable rate. The interest rate of 6% pa is usually applied by this Court for interest under the Law Reform (Miscellaneous Provisions)(Death and Interest) Act. This is not the commercial bank rate and on the low side. I think 10% pa is appropriate and I apply it from the date the cause of action arose which I take to be 2005 to the date of this judgment, i.e. 5 years. I therefore calculate interest as follows: $CAD50,200 x 10% x 5 yrs = $CAD25,100. I therefore award that sum as general damages rather than as aggravated damages.
DAMAGES IN FOREIGN CURRENCY
[25] It is open to this Court to give its judgment in a currency other than Fiji dollars. Such judgments have been given in the past although the point may not have been raised or argued and it may have been just assumed that the courts in Fiji can do so, e.g., an award in Australian dollars in Attorney-General of Fiji v Sharma [1994] FJCA 27; Abu0041u.93s (12 August 1994). Counsel did not point to any case authority in our Courts that have decided the point but referred me to an English case instead. The English Courts have done away with the rule that English judgments must be in pounds sterling. It was said that the old rule was based on the faith in sterling; it was a stable currency which had no equal. The Court of Appeal, however, said that it was not so; “sterling changed like a weathercock with every gust that blew”. The reasons for the rule no longer existed and the rule was discarded: Schorsch GmbH v Hennin [1974] 3 WLR 823 (CA), affirmed in Miliangos v George Frank (Textiles) Ltd [1975] 1 All E R 1076. If authority is needed then I rely on these English cases.
[26] There must be some certainty in the amount that the Plaintiffs are entitled to. It should not fluctuate depending on the exchange rate. The parties need to know what exactly they are entitled to or obliged to pay. If I leave it open ended, that is, use the conversion rate at the date of payment, then the Defendant may use currency fluctuations to his advantage and the Plaintiffs disadvantage or vice versa. However, for the purposes of enforcement, and I can safely say that enforcement is more likely to be in Fiji, the Plaintiffs need to know exactly what sum they are to enforce payment on. I therefore fix the conversion rate between the Canadian dollar and the Fiji dollar to be the exchange rate published by the Reserve Bank as at the date of this Judgment, 30 April 2010, and the total judgment sum, if it is to be paid in Fiji dollars, shall be converted using that exchange rate.
COSTS
[27] The Plaintiffs have asked for costs on a solicitor/client full indemnity basis. I think this case is one of those cases where the Court should depart from the normal rule because of the Defendant’s complete disregard for Court orders and for defending the indefensible: Lok v Singh [2010] FJHC 7; HBC321.2000L (20 January 2010); Khan v Carpenters Fiji Ltd [2009] FJHC 149; HBC132.2003 (23 July 2009); Singh v Naupoto [2008] HBC 199/08 (Costs Decision of 8 August 2008) and Rokotuiviwa v Seveci [2008] FJHC 221; HBC374.2007 (12 September 2008).
[28] I think the sum of $15,000 is a fair and reasonable amount for a case that was at the stage of hearing and would have proceed as a defended action had the Defendant not dismissed his solicitors and counsel and failed to appear. I have listed the dilatory tactics of the Defendant in his approach to this case and also take them into account in my assessment of costs.
INTEREST
[29] I make no award for interest because I have allowed for it in general damages.
ORDERS
[30] The Orders are therefore as follows:
- The Defendant shall pay to the Plaintiffs the total sum of $CAD 75,300 (Seventy five thousand and three hundred Canadian dollars) made up of $CAD 50,200 as special damages and $CAD 25,100 as general damages.
- The Defendant shall pay the Plaintiffs costs of $FJD 15,000 (Fifteen thousand Fijian dollars) within 28 days.
Sosefo Inoke
Judge
[1] The judgment was appealed unsuccessfully by the NLTB in Native Land Trust Board v Prasad [2008] FJCA 100; ABU0065.2006S (16 April 2008) but the orders for aggravated ($10,000) and exemplary ($25,000) damages were not appealed against by Ratu Makutu.
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2010/147.html