Naidu v Opticare Fiji Ltd [2012] FJHC 1289; HBC132.2011 (21 August 2012)

IN THE HIGH COURT OF FIJI AT LAUTOKA CIVIL JURISDICTION
Civil Action No. HBC132 of 2011L
BETWEEN	:	MAHA LAKSHMI NAIDU of 56 Naviti Street, Lautoka and MUTHUKRISHNAN NAIDU of 1/63 Mcfadzan Drive, Blockhouse Bay, Auckland, New Zealand, Businesspersons as Executrix and Executor and Trustees of the Estate of NAVANEETHA KRISHNA NAIDU also known as NAVANIDHA KRISHNAN late of 45 Commissriat Road, Mount Wellington, Auckland, New Zealand, Mount Wellington, Auckland, New Zealand, Group Financial Controller and Company Director, Testate.
		Plaintiffs
AND	:	OPTICARE FIJI LIMITED a limited liability company having its registered office at 56 Naviti Street, Lautoka, Fiji Islands.
		Defendant

RULING
(Assessment of Damages)

BACKGROUND

1. On 19 March 2007, Young & Associates filed for the plaintiff an application for vacant possession of Crown Lease No. 452392[1]. The application was filed pursuant to section 169 of the Land Transfer Act (Cap 131). The defendant opposed the application. On 18 July 2007 Madam Justice Phillips granted the following orders:
   
   1. The Defendant deliver the vacant possession of the premises situated at 56 Naviti Street, Lautoka and land known as Section 3 Lautoka City Province, Ba District Vuda containing 437 square meters comprised and described in Lease No. 452392.
      
   2. The defendant do pay to the Plaintiff all outstanding rentals and outgoings for the premises up to the date of vacant possession.
      
2. The defendant in fact had occupied the premises without rent from October 2006 to October 2007. Rent was charged at a rate of $1,482.95 per month.
   
3. On 15 August 2011, the plaintiff filed a claim seeking damages including mesne profits and loss of chance against the defendant for the period that it occupied the premises without paying rent. The plaintiff also claims special damages, interest and costs on a solicitor/client basis.
   
4. On 22 September 2011, Judgment in Default was entered against the defendant for failure to file a statement of defence. The plaintiff thereafter filed a Notice of Assessment of Damages on 17 April 2012. The defendant was duly served a copy of the Notice but has never appeared to contest the application.
   
5. One Mukesh Chand, the plaintiff's son in law, gave evidence on her behalf. Chand has been managing the financial affairs of his in laws' including his late father in law's estate.
   
6. According to Chand, the plaintiff (his mother in law) is the owner of Crown Lease No. 452392. Chand and his wife came to Fiji in 2005 to look after and manage a shop (Minaxi Hot Snax) which his in laws operated. His father in law Navaneetha Krishna Naidu died the following year in May 2006. After his death, Chand took over the management of the financial affairs of his mother in laws affairs and his father in law's estate. Part of his duties was to collect rent on all properties owned by his in laws.
   
7. Chand said that the defendant company had occupied the premises at 56 Naviti Street, Lautoka on Lease No. 452392 for several years. This is one of the properties that his in-laws owned. Following his father-in-law's death, the defendant company continued to occupy the premises at a monthly rate of $1,482.95.
   
8. Chand had maintained a record of all the rent payments received from the defendant. He tendered a copy of this record in court which is marked P1. His mother in- law's Westpac Bank Statement was also tendered and marked P2 into which account rentals were paid.
   
9. Chand said that the last rent received from the defendant company was on 5 October 2006 being rent for the month of September of the same year. The defendant however continued to occupy the premises until October 2007.
   
10. Chand said that the defendant occupied the premises for a total of thirteen (13) months without paying rent. Chand tendered a bill of costs and receipt issued from Young & Associates showing how much the plaintiff paid in legal fees for the application for vacant possession on which Philips J had ruled. The receipt dated 13 August 2009 shows that the plaintiff paid $2,937.50 to Young & Associates. The bill of costs and receipt were tendered as exhibits P3a and P3b.
    

ASSESSMENT

11. The defendant occupied the premises rent free for a total of thirteen months. The fair market rent on the premises, for which the defendant had paid previously for the premises, was $1,482.95 per month.
    
12. I award $19, 278.35 (nineteen thousand two hundred seventy eight dollars and thirty five cents) to the plaintiff being unpaid rent owing on the premises by the defendant.
    
13. The plaintiff is also entitled to interest. In respect of this, evidence was tendered of the average interest rate applied by commercial banks for the period October 2006 – 2010 taken from the Quarterly Review of the Reserve Bank for this period. I accept the submission that the average rate for the period would be around 8 % and apply this rate accordingly from October 2006 (which is when the cause of action accrued) till the date of judgment.
    
14. The plaintiff asks for costs of $2,937.50 (two thousand nine hundred and thirty seven dollars and fifty cents) being the cost of legal fees paid by the plaintiff in applying for vacant possession which was heard by Philips J. I do not think it is appropriate for me to order those costs here. If Phillips J had ordered costs, then the plaintiff should be taking enforcement proceedings on the learned Judge's cost orders.
    
15. However, for these proceedings, I summarily assess costs at $2,000.00 (two thousand dollars) in favour of the plaintiff.
    

Master Tuilevuka

At Lautoka
21st August 2012

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^[1] formerly, Crown Sublease 24 Folio 11 (B24/11) with variation of Lease No. 121182 in the High Court.