Costal Development Ltd v Razak [2013] FJMC 402; Civil Action 433.2008 (16 October 2013)

IN THE FIRST CLASS MAGISTRATES COURT
AT SUVA
CIVIL JURISDICTION

Civil Action No. 433/2008

BETWEEN:

COSTAL DEVELOPMENT LIMITED a duly incorporated company having its registered office at 18 Aurora Avenue, Makoi, Nasinu.
PLAINTIFF

AND:

MOHOMAD RAZAK trading as AUTO ONE EXPORTERS (formerly of Lot 33 Stage 1, Makoi, Nasinu) now of 142 Ratu Mara Road, Suva.
DEFENDANT

Mr. O'Driscoll for the Plaintiff
Mr. Niubalavu for the Defendant

JUDGMENT

1. The Plaintiff filed amended writ of summons against the defendant seeking following orders inter alia:
   
   • (i) Judgment in the sum of $10,000.00 (Ten Thousand Dollars Only)
     
   • (ii) Costs of this action
     
   • (iii) Total claim limited to jurisdiction of this Honourable Court that is no more than $50,000.00
     
   • (iv) Such further reliefs and orders as this Honourable Court deems fit in the circumstances.
     
2. The defendant filed his statement of defence and counter claim on 03 December 2009 seeking a Judgment in favor to the sum of $12, 536.00 and the cost.
   
3. Minutes of Pre- Trial conference filed on 18 September 2012 reads as follows:-
   

Agreed Facts

1. The Plaintiff is a limited liability company having its registered office at 18 Aurora Avenue, Makoi and was at all material times a customer of the Defendant.
   
2. The Defendant is a limited company having its registered office at 142 Ratu Mara Road, Suva and was at all material times engaged in mechanical and repair works and import and export of motor vehicle spare parts.
   
3. The Plaintiff gave its motor vehicle registration number DX 997 to the Defendant to repair.
   
4. A demand notice dated 7th October 2008 was delivered to the Defendant by the Plaintiff's solicitors, demanding payment.
   

Issued for Determination

1. Did the Plaintiff seek that the Defendant repair and sell its motor vehicle for $20,000.00 with the repair costs of $10,000.00 being paid from the proceeds and the balance of $10,000.00 to be given to the Plaintiff?
   
2. Is the Plaintiff entitled to judgment in the sum of $10,000.00?
   
3. Did the Defendant sell some of the parts of the vehicle?
   
4. Did the Defendant ever request a deposit for repair works?
   
5. Did the Defendant ever ask the Plaintiff to remove its vehicle form their premises?
   
6. Is the vehicle and parts there from at the Defendant's premises, having been so since it was taken there in February 2005?
   
7. Per its counterclaim, is the Defendant entitled to judgment in the sum of $12,536.00 or any sum at all?
   
8. Is either party entitled to costs and if so on what basis?
   
9. Whether the Defendant is entitled to compensation for work done and storage of the said vehicle.
   
4. The hearing was taken on 16/09/2013 and 28/10/2013 and after the hearing both parties were invited to file closing submissions. Only the defendant obliged and filed the submission and I have considered that also to reach my judgment.
   
5. For the plaintiff only one witness was called. Mr. Mohomad Safar said that he had a motor vehicle (DX997) which was damaged at Navua. He spoke to Mr. Razak (defendant) and he agreed to repair the vehicle and sell it. The parties agreed that after selling the vehicle defendant will give $10,000.00 and this was agreed verbally. The defendant did not give any invoice for dismantling of the vehicle. The defendant failed to pay the money and the plaintiff sent a letter of demand (P-02).
   
6. In cross examination the witness said even though the vehicle was involved in an accident it was not a write off and he took some time to send the demand notice as he was in good terms with the defendant. The witness admitted also that there was a small claim action against one of his company by the defendant but he has paid the amount in that. He further said that the defendant sold some of the parts from the vehicle and up to now he has not received anything. The plaintiff closed the case after calling this witness.
   
7. For the defendant Mr. Mohomad Razak gave evidence. He said PW1's son brought the vehicle and at that time it was beyond repair. Estimated damage was around $12,000 and the defendant advised the plaintiff to collect the spare parts. The reason for filing this action was because the plaintiff was ordered to pay some money to the defendant in a small claim action. The defendant said he is seeking payment for dismantling and storage cost since 2005.
   
8. In cross examination he said he did not have any invoice for dismantling and storage of the vehicle.
   
9. In his written closing submission the learned counsel for the defendant submitted that the plaintiff failed to prove his case on the balance of probabilities and therefore his claim should be struck out. Further as the defendant has proved his claim the counterclaim should be granted.
   
10. I have considered the evidence as well as the documents presented in the trial. From the evidence I find that there is no dispute about the vehicle being given to the defendant. The plaintiff's case is that it was given on the understanding that the defendant would sell the vehicle and return $10,000 to the Plaintiff. The crux of the case for the defendant is that the vehicle was taken for repair and the plaintiff failed to pay the cost for dismantling and storage.
    
11. According to plaintiff he had a verbal agreement to sell the vehicle. He said that the defendant failed to honor that agreement and he later found out that his vehicle was dismantled and the parts were sold. Reason for delay of demand notice was that he had a good understanding with the defendant.
    
12. First I will consider the defendant's claim. He said the vehicle was brought there for repair and up to now the plaintiff failed to pay for the repairs and for the storage fees. This version came to light only after the plaintiff sent a letter of demand. The defendant also failed to produce any documents or receipts to substantiate his claim. Therefore I am not prepared to accept the defendant's evidence and strike out the counter claim.
    
13. The plaintiff said he has given the vehicle to the defendant on the understanding that it would be repaired, sold and $10,000.00 would be given to him. He also produced some photos of a vehicle which shows a vehicle that could be repaired and sold back for a good price. I am prepared to accept his evidence which was consistent in the hearing. The defence failed to raise doubt about his version.
    
14. Therefore I believe the plaintiff has proved his claim based on balance of probabilities. Accordingly I grant the following orders.
    
    1. Judgment in the sum of $10,000.00
       
    2. Interest of 5% per annum from the date of judgment until full payment. (Total sum with the interest not to exceed $50,000)
       
    100. Cost of $1000.00 summarily assed.
         
15. 28 days to appeal.
    

H.S.P.Somaratne
Resident Magistrate, Suva