Nativa Motors v Vakanawa [2013] FJMC 128; Civil Action 28.2009 (14 March 2013)

REPUBLIC OF FIJI ISLANDS

IN THE MAGISTRATE'S COURT
AT SUVA
CENTRAL DIVISION
CIVIL JURISDICTION

Civil Action No. 28 of 2009

Nativa Motors
Applicant – as per motion
(Defendant in Action)

.v.

Solomoni Vakanawa
Respondent – as per Motion
(Plaintiff in Action)

For Applicant : Ms. Vasiti (Nands Law)
For Respondent : In Person

Ruling

Introduction

In this matter the Applicant has filed a Notice of Motion seeking that "(i) that the monies tendered by the Defendant into the Suva Magistrates Court Civil Registry on 3rd December 2012 and receipted as "under protest" in respect to a writ of Fieri Facias issued by this Court on 7th October 2009 be retained by the Suva Magistrates Court and not paid to the Plaintiff/Claimant until determination of the appeal being filed by the Defendant at the Small Claims Tribunal in Suva. (ii) That Order 2 of Order dated 28th April 2010, made by this Court be varied to read as follows: " that the order of small claims tribunal made on 14th August 2009 in this matter be set aside and the Defendant/Respondent is given 28 days to file an appeal". (iii) that Order 3 of the Order dated 28th April 2010 made by this Court be varied to read as follows: "that the action instituted by the Plaintiff/Claimant in the Small Claims Tribunal in Lautoka be transferred within 3 days from date of this Order to the Small Claims Tribunal in Suva. (iv) Costs in cause."

Parties were given time to file submissions on the application before this Court. Both sides have made written submissions.

History of the Matter

(a) Respondent obtained judgment in SCT in Lautoka on 14th August 2009 against the Applicant in the sum of $4306.00.

(b) Respondent filed a Writ of FIFA in the Lautoka Magistrates Court, dated 7th October 2009.

(c) On 20th January 2010, Applicant's Counsel filed Notice of Motion to stay execution of the Writ of Fifa.

(d) On 28th April 2010 the Court stayed the Execution of the Writ of Fifa and Ordered the Applicant be at liberty to file an appeal out of time and defence. The matter was transferred to Suva Small Claims Tribunal.

(e) On 29th November 2012 Senior Court Officer, Lautoka informed the Senior Court Officer, Suva that Order2 was not complied with and execution of FIFA could proceed.

(f) On 30th November 2012 the matter was brought to the attention of the Chief Magistrate, who had granted stay in Lautoka and he approved the execution of FIFA and stated "proceed with enforcement".

(g) The Court Officer, Suva informed this Court on 3rd December 2012 that 3 attempts were made to execute FIFA but failed. The Respondent (Lady for Nativa Motors) came to the counter and stated that she will pay under protest.

(h) The Motion which is now be ruled upon by this Court was filed on 5th December 2012.

The Law

In Chans Long Chang v. Yen Yain Kai (1999) FJ HC 107, 45 FLR 217, the general principles governing the grant of leave to appeal out of time are set out as follows:-

(1) The length of the delay.

(2) The reason for the delay.

(3) The chances of an appeal succeeding if the time for appealing is extended.

(4) The degree of prejudice would cause to the respondent if the application is granted.

Analysis

This Court has noted the submissions made by both the sides.

The Applicant was ordered by the Magistrate in April 2010 to file appeal out of time. This did not eventuate and the reason stated by Roopal Patel in one of her affidavits dated 11th January 2010 is that "I was not aware of the time frame required by law to file an appeal." In another affidavit she states "our solicitors had filed the necessary paperwork for the appeal but the papers were not released from the registry. Due to this lack of response and action on the part of the registry, the Defendants chose not to pursue the matter reassured under the correct impression that the execution of the said writ would not be plausible."

This Court finds that the reasons advanced by the applicant are absurd as she attempts to blame the Court Registry while shifting the blame from herself and her lawyers to follow up with the Registry. If the documents were in-fact filed her law firm would have followed up with the Court Registry. Law firms are fully conversant with the procedures and the Court Registry Staff like-wise know what they are doing. Documents filed in Court are promptly attended to. Where directions are needed they are brought to the relevant Magistrate. In this case the Court finds from its perusal of the Court records and the pleadings filed that the Applicant is misguided and has taken things lightly and her assertion later that she did not know things as required by law are no defence for her. It is more so, as she was represented by Counsel and they should have ensured that appeal was filed within a reasonable time after stay was granted. The excuse being made now that they could have filed anytime is ill-conceived. Only when Court as per note of Chief Magistrate on 30th November 2012 ordered execution as the Applicant had not complied with the Court orders then they filed this motion.

This Court has further noted that The Chief Magistrate who was the presiding Magistrate in Lautoka directed enforcement after he was notified that Order 2 was not complied with in a reasonable time. Even when they had over 2 years from time of stay.

This Court has further considered the following in this action

(1) Length of Delay -

The length of delay from the time the Court granted Applicant time to file leave to appeal is over 2 year.

The argument advanced by the Applicants is not acceptable. It seems like the Director is saying that she did not know the implications. Ignorance of law is no defence. The Court gave the Applicants time they failed to file appeal out of time within a reasonable time. Even after 2 years it was not filed. The Applicants are blaming the Court Registry when in-fact they failed to act. They had mechanisms in place to ensure things were filed promptly. In any event they could have complained about the Registry staff's non-response, if there was any. No action was taken by the Applicant until the FIFA was executed.

The length of delay is quiet long and beyond which can be taken to be reasonable.

(2) Reasons for Delay –

The reason the Applicant outlines for the delay was the Registry's failure and as sated above. This Court having perused the records notes that the Applicants did not act promptly and were lax. They took things lightly.

(3) The chances of an appeal succeeding if the time for appealing is extended –

This Court has noted the considerations of the Referee and finds that he considered all matters before him in reaching the decision. From the material before it this Court finds that the Applicant has little chance of success if leave to appeal is granted.

(4) The degree of prejudice would cause to the respondent if the application is granted -

The Respondent is entitled to the fruits of its litigation. Only when the FIFA was executed, the Applicants have "woken up". Further delays will prejudice the Respondent.

This Court Orders as follows:

(a) Applicants Motion is dismissed.
(b) Monies paid in Court to be released to the Respondent within 28 days.
(c) Applicant to pay cost for this action to Respondent sum of $300.00 which must be paid with 28 days.

Chaitanya Lakshman
Resident Magistrate
14th March 2013