Aerolink Air Services Pty Ltd v Air Fiji Ltd [2011] FJHC 237; Civil Action 25 of 2005 (29 April 2011)

IN THE HIGH COURT OF FIJI

WESTERN DIVISION AT LAUTOKA

Civil Action No. 25 of 2005

BETWEEN

AEROLINK AIR SERVICES PTY LIMIED
a limited liability company having its registered office at Suite 111, Level 1,2 Crofts Avenue, Hurstville, NSW 2220, Australia.
Plaintiff

AND

AIR FIJI LIMITED
a limited liability company having its registered office
at Hanger Road, Nausori Airport, Nausori.

Defendant

RULING

BACKGROUND

[1]. The matter was formally proved on 7th September 2010. At the outset, I record that no submission was made before me as to the current status of the defendant company. I shall leave it at that. For the purpose of the proceedings before me, I accept the sworn evidence of Mr. Daniel Ryan. Ryan is the owner and manager of the plaintiff company. He testified on the damages and losses suffered by the plaintiff company. By way of background, on 1st May 2001, the plaintiff and the defendant entered into an agreement for the lease of an aircraft.

[2]. The defendant admits to this in its statement of defence. Pursuant to clause 3 of that agreement, the defendant would pay AUD$18,000.00 (eighteen thousand Australian dollars) per month for the leasing of the aircraft. The commencement date of the agreement was July 2001. And its expiry date was December 2001. On the expiry of the agreement - the defendant and the plaintiff agreed that the defendant would continue to lease the aircraft on a monthly basis. On 23rd August 2001 - the agreement was terminated. And the defendant was thereby to return the aircraft to the plaintiff by end of October 2004. The defendant defaulted in paying its monthly payment for 4 months prior to December 2001. The amount it owed the plaintiff for that period of default is AUD$72,000.00 (seventy two thousand Australian dollars).

[3]. The plaintiff also claims for ferry costs of transporting the said aircraft from Australia to Fiji in the sum of AUD$12,270.00 (twelve thousand two hundred and seventy Australian dollars). The defendant further defaulted in its monthly payment for 8 months after December 2001. For that period of default, it owed the plaintiff AUD$144,000.00 (one hundred and forty four thousand Australian dollars) being (8 x AUD18,000.00). Hence, the total in special damages that the plaintiff claims from the defendant is AUD$228,270.00 (two hundred and twenty eight thousand, two hundred and seventy Australian dollars).

[4]. In addition, the plaintiff alleges that the state of the aircraft had so badly deteriorated in the hands of the defendant that the aircraft was virtually unairworthy when the plaintiff got it back from the defendant. It was obvious that the defendant had simply failed and neglected to keep the aircraft in a state of repair despite the plaintiff's request. The plaintiff has since gotten the aircraft back and has repaired it at its own expense. The expenses that the plaintiff incurred in and towards this exercise are as follows:

Amount	What expenses incurred for
AUD$14,219.61	Purchased aircraft parts from Aeromil (Australia) Pty Limited
AUD$1,014.20	Repair of seats and other interior parts
AUD$1,336.50	Paid Mr. D C Roberts for checking and release of Starter Generator S/N 985 and 1372
FJD$48,340.00	Paid wages ad expenses to Mr. J. Amafala
FJD$80,836.20	Paid expensed to Sun Air (Pacific) Limited
AUD$932.20	Paid costs for shipping seats to Fiji
AUD$700.00	Paid to Goanna Signs and Graphics for removing existing graphics
FJD$25,280.00	Paying costs to its solicitors
AUD$258,000.00	Suffered loss of revenue for loss on prop, engine and parts for 12 months
AUD$28,414.63	Paid to Maryborough Aviation Services for maintenance work
	Paid Bank fee and interest to National Australian Bank as its account was overdrawn due to defendant's failure to pay the lease amount under the agreement
AUD$275.00	The defendant failed to pay for hiring equipment
AUD$17,214.03 USD$25,960.00	Paid Quality Avionic Pty Ltd for services rendered
AUD$16,235.12	Paid legal costs to Australian solicitors
FJD$53,502.92	Paid maintenance charges and utilities to Sun Air Pacific Limited

[5]. Therefore, the general damages claimed by the plaintiff are as follows:

• (a) Judgment as per paragraphs 10.1, 10.2, 10.3, 10.6, 10.7, 10.9, 10.10, 10.11, 10.12, 10.13 and 10.14 above in the sum of AUD$375,611.76 (Australian Three hundred and seventy five, six hundred and eleven thousand dollars and seventy six cents).
  
• (b) Judgment as per paragraphs 10.4, 10.5, 10.8 and 10.15 above in the sum of FJD$207,959.12 (Fijian Two hundred and seven, nine hundred and fifty nine dollars and twelve cents).
  
• (c) Judgment as per paragraph 10.13 above in the sum of USD$25,960.00 (American Twenty five, nine hundred and sixty thousand dollars).
  

LOSS OF USE OF AIRCRAFT

[6]. Due to the defendant's actions, the plaintiff has not been able to use and/or lease the said aircraft.

[7]. The aircraft is still parked at the Nadi International Airport after repairs by the plaintiff as there is no certificate of airworthiness yet issued for it by CAAFI.

[8]. It was the responsibility of the defendant to liaise with CAAFI.

[9]. According to the letter of termination of the agreement, the said aircraft was to be returned in October 2004.

[10]. The plaintiff claims loss of use at the rate of AUD$18,000.00 (Eighteen thousand dollars Australian dollars) per month until 7 October 2010, the date on which the matter is listed for ruling. There are 72 months from October 2004 to October 2010.

[11]. Therefore, 72 months multiplied by AUD$18,000.00 amounts to AUD$1,296,000.00 (One million, two hundred and ninety six thousand Australian dollars).

[12]. The plaintiff claims the sum of AUD$1,296,000.00 for loss of the use of the said aircraft.

ORDERS

[13]. I make the following awards in accordance with submissions filed by Koya & Company for and on behalf of the plaintiff:

• (a) Special Damages in the sum of AUD$84,270.00.
• (b) Damages for Loss of Use of the Aircraft in the sum of AUD$1,296.000.00.
• (c) General Damages as follows as per paragraph 5 (a) (b) and (c) above:
  
  • (i) AUD$375,611.76
  • (ii) FJD$207,959.12
  • (iii) USD$25, 960.00
    

.........................................
Anare Tuilevuka
Master

At Lautoka
29th April 2011