Kwong v Price [2010] KIHC 20; Civil Case 122 of 2009 (10 February 2010)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 122 of 2009

BETWEEN:

IOSEFA KWONG
PLAINTIFF

AND:

FAIR PRICE
DEFENDANT

For the Plaintiff: Ms Botika Maitinnara
For the Defendant: Ms Taoing Taoaba

Date of Hearing: 10 February 2010

JUDGMENT
(Ex Tempore)

When this action was called for hearing I asked counsel what the sticking point may be. It is that if the defendant pays the rent pursuant to two leases and then there is a breach by the plaintiff, the plaintiff would not be able to meet the defendant’s claim for compensation.

The plaintiff who is in Australia and sick is the owner of properties which the defendant has leased. According to the Statement of Claim the plaintiff is relying on the rent money to pay living expenses. The defendant in the meantime is in the comfortable situation of enjoying the use of the properties rent free.

I have seen two agreements. Although not formally tendered – as no evidence has been given – they should be regarded as part of the Court record. On the properties are a Fair Price store and premises which had been the Nite Spot, a night club run by the defendant but now closed.

Ms Taoaba has acknowledged that her client has not paid any rent for 2008, 2009 and to date. Ms Maitinnara claims that some rent is still owing for 2007 as well. The excuse given by Ms Taoaba for her client having made no payment is that part of the buildings may be pulled down as a result of some other proceedings: if that happened the defendant would not be able to meet the plaintiffs claim for compensation. The defendant has enjoyed undisturbed occupation for over two years and paid no rent. He continues to enjoy undisturbed occupation. This is not a just situation and the Court should not allow it to continue.

The defendant is now willing to pay whatever amount is owing up to the present but is asking that the amount be paid not to the plaintiff but into Court (and remain there for some unspecified time) to meet any future claim the defendant may make. The defendant is in no position to impose such a condition and the Court will not impose it.

There will be judgment on liability for the plaintiff with damages to be assessed if the parties cannot agree the amount. The counter claim is dismissed.

THE HON ROBIN MILLHOUSE Q C
Chief Justice