Prasad v Quality Development Consultant Ltd [2014] FJMC 153; Civil Action 34.2013 (11 November 2014)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS
CIVIL JURISDICTION
Civil Action No: 34 of 2013

Ramendra Prasad
Plaintiff

v

Quality Development Consultant Limited
First Defendant

Ronald Chan
Second Defendant

Appearances and Representations
For Plaintiff: Mr A Pal (AP Legal)
For First Defendant : Ms. Kunatuba (Law Solutions)
For Second Defendant : Ms Kunatuba (Law Solutions)

Judgment

Introduction

In this matter the Plaintiff had filed a Writ of Summons seeking judgment in the sum of $7,000.00 together with post judgment interest as provided for under the Magistrates Court Act, costs incidental to the proceedings, such further and other relief as the Court deems just and expedient (all to be within the jurisdiction of the Court).

The Plaintiff's Claim arises out of a contract for the survey and subdivision of the family estate of the plaintiff for the distribution to the beneficiaries which were to be carried out by the Defendants.

Pleadings Filed and the Evidence in Court

The Plaintiff filed a Writ and the 1st and the 2nd Defendant filed a Statement of Defence. A Reply to defence was filed by the Plaintiff.

Mr. Ramendra Prasad and Mr. Mahendra Pratap Narayan gave evidence for the Plaintiff. The 1st Defendants called Mr. Julian Rafaele. In addition to all the evidence given in Court this Court has considered the pleadings and submissions that were filed in Court.

Analysis

This Court has noted all the evidence that was given in this Court, the documents that were tendered together with the pleadings filed. From the pleadings this Court finds that there is no dispute in this matter that the Plaintiff and the Defendants had an agreement for the survey and subdivision of the Property, being the family estate of the Plaintiff. There is also no dispute that a quote was provided for the sum $23,000 and the terms of payments were as follows:

(a) $3000.00 for scheme plan approval
(b) $7000.00 upon commencement of survey work.
(c) $5000.00 upon completion of survey and lodgement of survey plans
(d) $8000.00 upon approval of survey plans.

The Court also finds from the evidence in Court and the pleadings that there is no dispute that $3000.00 for phase one and $7000.00 was paid for the phase two. In Court the Plaintiff stated that the beneficiaries appointed Mahendra Narayan to liase with the Defendants on their behalf on the survey and related matters. The Plaintiff further informed the Court that $7000.00 paid to the Defendants was for the survey plans and the survey plans was not done and lodged. According to the Plaintiff, the Defendants did not contact the Plaintiff or his nominee for the field work and later when they visited the Defendants they demanded additional $10,000.00.

The 2nd witness for the Plaintiff, Mahendra Narayan told the Court that the Defendant's blamed the beneficiaries when they prepared wrong plans. The Defendants were required to distribute equally. Details of how the property was to be distributed were provided to the Defendant's. Even the second plan drawn up by the Defendants had same mistakes. According to Mr Narayan the Defendant had others works which they gave priority to. In cross-examination he informed the Court that no pegs were placed on the land that was being surveyed. He further informed the Court that no reasons were given for the $10,000.00 extra that was demanded by the Defendants.

For the Defendant's, Julian Rafaele who worked for the Defendants gave evidence. He was not sure of the time line or any discussion on it for the survey works. They did not receive any written instruction for the amendments that were sought by the Plaintiff. They went to the field and found the marks and the pegs. This witness further told the court that amended scheme plans which reflect the changes (marked 14 and 15 in Court) were not lodged. However the Director of Town and Country Planning (DTCP) had initially on 13th June 2006 granted conditionally approval of the subdivision.

From the evidence before it this Court finds that the Plaintiff has complied with the requirements. He paid the Defendants as per the agreement. The Defendants for their part did not carry out the work as per the discussion and agreement. The Defendant's have no record of any written instructions given to them by the Plaintiff or his nominee of the changes they mention. The Defendant's are professionals who should have proper records and should keep records of instructions provided to them. The initial approval was given to them in June 2006 by the DTCP. From the evidence in Court of Julian this Court finds that the Plaintiffs paid as per the agreement, however the Defendants did not commence the works they had said will be done. In Court, Julian said that they did work for phase 2, 3 and 4 even when work for phase 1 was not completed. The Plaintiff is a lay person. Surveying is the Defendants field and simply telling him to pay lump sum for each phase and later saying that work for the phases run across each other is mischievous. Professional work must be carried out in professional and orderly manner. Clients must be explained things clearly. If work was to run across it must have been explained and been part of the agreement between the parties. Clients must not be misled. Clients must also be kept informed of the tasks that are being carried out. The clients should not be expected to run after the Professionals as well.

This Court believes the Plaintiff and his witness. The absence of the 2nd Defendant or Waisake in Court to give evidence, being the persons who the Plaintiff and his nominee know and have dealt with in relation to this matter is not favourable for the Defendants. Julian, their witness is not aware of a lot of matters and cannot verify what they talked about or agreed upon. Even the records of Julian that the land was surveyed are his records and cannot be verified. It can be any record. For this reason this Court does not make much of the records he is submitting stating that the land was surveyed and pegged. The Plaintiff and his nominee did not see the land being surveyed and pegged. This Court believes them when they told the Court that they had told the Defendants to inform them when they come to the field. They were never informed. In any event if the land was pegged. The Defendants upon request and visits to the Defendants office by the Plaintiff or his nominee would have notified them that pegs were in place or would have shown to the Plaintiff and/or his nominee the pegs. This was not done. This Court therefore finds that no pegs were in place.

This Court further finds that the Defendants sought additional $10,000.00 before they would commence Phase 2 of the surveying. This was not part of the initial agreement between the parties.

This Court finds from the evidence before it that the Plaintiff has paid in full for the 2nd Phase and the work for this phase has not commenced. The Plaintiff is not at fault for the incomplete work or the preparation of the wrong plans by the Defendants. The Plaintiff took all steps and assisted the Defendants. The Defendants did not perform their tasks.

The Plaintiff's case is proven on the balance of probabilities. The Plaintiff succeeds with the claim. This Court orders that the Defendants pay the Plaintiff as follows:

(a) A sum of $7,000.00 within one month of this judgment.
(b) Cost on Solicitor- Client Indemnity Baisis.
(c) Post judgment interest at a rate of 5% per annum.
(d) The total sum is limited to the jurisdiction of this Court.

Any party aggrieved with this judgment has the right to appeal to the High Court within 28 days.

Chaitanya Lakshman
Resident Magistrate

11th November 2014