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Court of Appeal of Fiji |
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT
Civil Appeal No: ABU 0038 of 2012
(High Court of Lautoka No: HBC 238 of 2006L)
BETWEEN:
JAI DHIR SINGH
Appellant
AND:
JUBILEE JUICE DISTRIBUTORS (FIJI) LIMITED
Respondent
Coram : Calanchini P
Basnayake JA
Gamalath JA
Counsel : Ms. V. Patel for the Appellant
Mr. D.S. Naidu with Ms. T. Draunidalo for the Respondent
Date of Hearing : 06 February 2014
Date of Judgment : 05 March 2014
JUDGMENT
Calanchini P
[1] I agree that the appeal should be allowed.
Basnayake JA
The Application to lead fresh evidence
[2] The argument in this case was fixed for 6 February 2014. On 15 January 2014 the Solicitor for the appellant (defendant) had filed a notice of motion to obtain leave to adduce further evidence. The proposed evidence consists of three emails. An affidavit of the defendant was filed in support of this motion together with three annexures which contained the three emails. When this case was taken up, counsel for both parties agreed that the motion for leave to adduce further evidence and the appeal could be heard together. Hence counsel for both parties heard first on the motion filed to adduce further evidence.
Rule 22 (2) of the Court of Appeal Rules is as follows:
[3] (2). The court of Appeal shall have full discretionary power to receive further evidence upon questions of fact, either by oral examination in court by affidavit, or by disposition taken before an examiner or Commissioner:
Provided that in the case of an appeal from a judgment after trial or hearing of any cause or matter upon the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds (emphasis added).
[4] Messrs Neel Shivam were the lawyers representing the defendant in court in this case (High Court No. 238 of 2006L). The defendant insisted that he had a different lawyer to attend to the transaction relating to the transfer of property, namely, Messrs Babu Singh & Associates. The three e-mails were dated 18 February 2009, 17 March 2009 and 19 March 2009. These three e-mails were exchanged between Messrs Neel Shivam and the defendant. The learned Judge found in the judgment in this case (paragraphs 23 and 25 at pg. 13 of the Record of the High Court (RHC)) that it was Messrs Neel Shivam who attended to the transaction relating to the transfer of the defendant's property to the plaintiff. The defendant suggests that the e-mails prove otherwise.
[5] The proceedings in this case commenced before the learned Judge on 18 November 2011. By this date the defendant already had the three emails in his personal computer. The defendant states that he was able to locate these emails only after he discovered the learned Judge's finding that it was Messrs Neel Shivam who attended to the transaction relating to the transfer as well. The defendant states that the judgment in this case would be different if these three emails were considered as evidence. The learned counsel for the plaintiff objected to the leading of further evidence.
[6] The Court of Appeal has full discretionary power in receiving further evidence. However such evidence shall be admitted only on special grounds. The learned counsel for the defendant admitted that she was not relying on special grounds in support of her application.
[7] In order to exercise the discretionary powers the defendant should prove that the proposed evidence could not have been discovered prior to the trial by reasonable diligence (Coir Industries Ltd v Louvre Industries Limited (1984) 30 FLR 45, Ladd v Marshall [1954] EWCA Civ 1; [1954] 3 All ER 745; [1954] 1 WLR 1489, Skone v Skone [1971] 1 WLR 812; [1971] 2 All ER 582 HL, Roer v Robert McGregor & Sons Ltd [1968] 1 WLR 925; [1968] 1 All ER 636 CA). Considering the fact that there are no special grounds to consider in support of this application the same is refused.
The Appeal
[8] This is an appeal filed by the appellant (defendant) to have the judgment dated 24 April 2012, of the learned High Court Judge at Lautoka set aside. By this judgment the learned Judge had ordered the parties to give effect to the consent order dated 20 November 2008 by 30 June 2012. In the event the defendant failed to execute the documents, the Deputy Registrar of the High Court of Lautoka was directed to execute the transfer by 15 July 2012 after the plaintiff deposits $270,000.00 in court.
[9] The plaintiff entered into a sale and purchase agreement (agreement) with the defendant on 5 September 2005, for the purchase of a land and building contained and described in the Certificate of Title No. 23700 Lot 4 DP 5954 known as "Waqadra", situated in the District of Nadi, an area of 1038 square meters. The agreed price was $236,000.00. The plaintiff averred that in terms of the agreement a sum of $23,600.00 was deposited into the Trust Account of the common Solicitor Messrs Babu Singh & Associates. The plaintiff further averred that the balance sum of $212,400.00 too was deposited in to the Trust Account of Messrs Babu Singh & Associates.
[10] The date of the settlement was to be within 90 days from the execution or such other date as is mutually agreed by the parties. The plaintiff reckons this date as 3 December 2005. The plaintiff averred that he was always willing to perform the agreement and that the defendant had unilaterally repudiated the agreement and refused to perform it. The plaintiff sought the following reliefs namely:-
(a) Specific performance under the sale and purchase agreement dated 5 September 2005.
(b) Judgment in the sum of $16000 for the loss and expenses.
(c) Damages.
(d) Costs on a Solicitor/Client basis.
[11] The defendant denied the liability and moved for judgment in his favour. The defendant claimed that the plaintiff waived the right to settlement. The defendant claimed that the plaintiff having deposited the entire sum of money on 23 February 2006 withdrew the entire sum on the same day thus withdrawing from the agreement. The defendant denied to having repudiated the contract. He claimed that the plaintiff lodged a caveat and the plaintiff himself failed to ensure the performance of the contract until 3 December 2006 when the contract lapsed.
The Sale & Purchase Agreement (5 September 2005)
[12] Salient features:
The Consent Order (pg. 33 and also at pgs 40 & 145 of the RHC)
[13] On 20 November 2008, this case was settled on the following terms:
Complaint of breach (pg 35 of the RHC)
[14] On 30 September 2010 pursuant to Order 45 Rules 4 & 7 of the High Court Rules 1988 the plaintiff filed a motion alleging that the defendant did not comply with the consent orders and sought orders directing the defendant to execute the transfer as per the consent order. In that motion the plaintiff undertook to pay $270,000.00 to court. This motion was supported by an affidavit (pg 37 RHC) wherein the plaintiff stated that he has funds ready for payment but the defendant has failed to execute the transfer.
Reply by the defendant to the motion filed by the plaintiff for execution
[15] The defendant claimed that the agreement specified (clause 3.1 (a)) a deposit of 10% of the purchase price in to the Trust Account of Messrs Babu Singh & Associates. The deposit to be paid was $23600.00 being the 10% of the agreed price of $236,000.00. Upon the consideration sum having changed to $270,000.00, the deposit to be paid by the purchaser was $27000.00. Between the period 21 November 2008 and 15 March 2009, no deposit or any sum was paid by the plaintiff in to the Trust Account of Messrs Babu Singh & Associates.
The Judgment
[16] The learned Judge held that No. 1 of the consent order replaced No. 3 of the agreement. Therefore the plaintiff was obliged to pay $270,000.00 upon execution of the transfer documents. The learned Judge also held that the time is not of the essence of the agreement. The time limit was thus extended up to 30 June 2012. In the event the defendant failed to execute the transfer, the Deputy Registrar was directed to execute the transfer by 15 July 2012 after the plaintiff deposits $270,000.00 in court.
[17] The learned Judge stated that the parties waived the payment of deposit at the time of negotiating the consent orders. Paragraph 3.1 (a) of the agreement required the plaintiff to make a deposit into the Trust Account of Messrs Babu Singh & Associates. The learned Judge stated that after the entering of the consent orders, no party instructed Babu Singh & Associates to accept payment of deposit. The learned Judge construed this to mean that the parties waived the payment of the deposit. The learned Judge further held that paragraph 3.1 (a) of the agreement is unenforceable for the reason that Messrs Babu Singh & Associates confirmed that they were not acting for either party. The learned Judge also stated that the defendant never demanded that the plaintiff should pay a deposit. This fact also helped the learned Judge to assume that the parties waived the requirement of the deposit. The learned Judge opined that the defendant was waiting to get out of his obligation under the consent order by "fishing" for an excuse.
[18] The learned Judge held that "paragraph 12 of the sale and purchase agreement depicts that time is of the essence of the agreement. However, the parties had by the consent order 3 varied this requirement by permitting the parties to amend the time limits by mutual consent. Accordingly, the time is not of the essence as contemplated in clause 12 of the agreement for the interpretation of the consent order" (pg 15 of the RHC).
Submission of the counsel for the defendant
[19] The learned counsel for the defendant submitted that in terms of the consent order the terms and conditions of the agreement remained except for the purchase price which was increased to $270,000.00 and the settlement date which was extended to "15 March 2009 or such other date as mutually agreed between the parties". The purchase price was mentioned in clause 3 of the agreement which is as follows:-
"3. PURCHASE PRICE
3.1 The agreed price for the purchase of the said property is $236,000.00 (Two Hundred Thirty Six Thousand Dollars) VAT Exclusive price. The purchaser to pay VAT if applicable. The full purchase price shall be paid and satisfied by the purchaser to vendor as follows:-
- (a) $23,600.00 (Twenty Three Thousand Six Hundred Dollars) to be paid in to the Trust account of Messrs Babu Singh & Associates, Nadi and to be released to the vendor upon settlement.
- (b) $212,400.00 (Two Hundred and Twelve Thousand Four Hundred Dollars) as being the balance purchase price to be paid into the Trust Account of Messrs Babu Singh & Associates, Nadi."
[20] The learned counsel submitted that the consent order substituted the figure of $236,000.00 to $270,000.00. The consent order also extended the date of settlement to 15 March 2009. Apart from these two changes, the rest of the clauses in the agreement remained. The agreement required the plaintiff to pay $23,600.00 into the Trust Account of Babu Singh & Associates. This sum represents 10% of the purchase price. This sum was originally deposited into the Trust Account of Babu Singh & Associates on 31 August 2005. This was prior to the execution of the agreement. The agreement was signed on 5 September 2005. However the entire sum was withdrawn on 23 February 2006. The learned counsel submitted that the substitution of the purchase price was in favour of the defendant.
[21] The learned counsel submitted that the parties never agreed for the entire sum of $270,000.00 to be paid on the date of the settlement. The consent order is absolutely clear. It only substituted the purchase price and the date of settlement. Other than that it specifically stated that the terms and conditions of the sale and purchase agreement dated 5 September 2005 to remain the same except for the consideration sum and the settlement date.
[22] The 10% of the purchase price is $27,000.00 which the plaintiff was required to deposit as per the agreement. Clause 3.1 (b) of the agreement required the plaintiff to pay into the Trust Account of Babu Singh & Associates $212,400.00. However considering that the full payment was $270,000.00 and assuming that the sum of $27,000.00 was paid as deposit, the plaintiff would be required to pay the balance amounting to $243.000.00 into the Trust Account of Babu Singh & Associates. The learned counsel submitted that the plaintiff did not comply with the consent order and failed to pay the deposit of 10% into the Trust Account of Messrs Babu Singh & Associates in breach of clause 3.1 (a) of the agreement.
[23] The learned counsel submitted that the defendant's (vendor) Solicitor is named and formed part of the agreement. Clause 17 of this agreement requires notices to be given in writing to Messrs Babu Singh & Associates. Clause 17 contained the particulars of phone and Fax of the said Babu Singh & Associates. The learned counsel submitted that no party agreed to waive the deposit of the purchase price. The e-mail sent to the defendant by the plaintiff on 24 April 2009 (pg. 91 RHC) made reference to a deposit that the plaintiff would make into the Trust Account of the defendant's Solicitor in exchange of executed agreement. This confirmed the position of the defendant that there was no waiver of the deposit. The learned counsel submitted that the learned Judge's finding that the parties waived the payment of deposit is in direct contradiction to the consent order No. 2 which allowed the agreement to stand, excepting the amount and the date of settlement.
[24] The learned counsel also submitted that the learned Judge has erred in her finding that the consent order 1 replaced the entire section of clause 3 of the agreement as the consent order referred to "consideration sum" and not to the mode of payment.
[25] Clause 4.1 of the agreement stated that the date of settlement shall be within 90 days from the execution (the 90 day period was calculated to 3 December 2005) or such other date as is mutually agreed by the parties in writing. Clause 12 of the agreement makes time of the essence. By the consent order the date of the settlement had been extended up to 15 March 2009 unless the parties mutually agreed to another date of settlement. The learned Judge had extended the time of settlement up to 30 June 2012. The learned counsel submitted that the learned Judge has erred in holding that the settlement date had been extended by mutual conduct or by implication when order 3 of the consent order dated 20 November 2008 states "that settlement takes place on or before 15 March 2009 or such other date as mutually agreed between the parties". The learned counsel submitted that there was no evidence to show that there was such mutual agreement to extend the period of settlement beyond 15 March 2009.
[26] Clause 20 of the agreement prohibited any change or modification of the terms except in writing signed by the parties. The learned counsel submitted that the cancelling of the requirement to pay the deposit and extending the date of settlement beyond 15 March 2009 amounts to a variation of the consent order. She claims that this is not merely an interpretation of the terms of the consent order. The learned counsel complains that the required consent of the parties have not been obtained for these variations.
[27] A court has no power to vary a consent judgment or order made previously in that court. Where it appears that the order embodies the conclusion of negotiations between the parties, the court will give effect to it where one party is in breach and will not vary it, for eg. by giving extra time to perform its terms (de Lasala v de Lasala [1979] UKPC 10; [1980] AC 546; Supreme Court Practice 1988 Vol 2, para 4607 quoted by Pathik J in Vivrass Development Limited v. The Fiji National Provident Fund Board (High Court Civil Action 312 of 2002), (Tigher-Roche & Co v. Spiro (1982) 126 S.J. 525, C.A.).
[28] The learned Judge also found that clause 3.1 (a) (regarding deposit) was not enforceable as Babu Singh & Associates by letter dated 21 March 2011 (X22-RN 3) informed Pillai, Naidu & Associates (plaintiff's solicitors) that they did not receive any instructions after refunding the deposit and the monies and they were not aware of the consent order between the parties. The agreement requires (clause 3.1 (a)) the plaintiff to pay a deposit into the Trust account of Babu Singh & Associates. The learned Judge said that if either party did not instruct Babu Singh & Associates after the consent order, this could mean that the parties have waived the clause involving the payment of deposit.
[29] The learned counsel submitted that the monies were refunded on 23 February 2006 (pg 89 of the RHC). The consent order was made on 20 November 2008. The consent order allowed the terms and conditions of the agreement to remain. This is after increasing the purchase price and extending the period of settlement up to 15 March 2009. In the agreement, Babu Singh & Associates have been named as the solicitors for the defendant. The phone number and the Fax number of the solicitor had been provided in the agreement. The plaintiff would have been the first to ascertain if Babu Singh & Associates were not acting for the defendants. The particulars of Babu Singh & Associates were found in the agreement. When the agreement requires the plaintiff to inform Babu Singh & Associates, there is no reason why the plaintiff should go to Messrs Neel Shivan. If Babu Singh were not the solicitors of the defendant at the time of entering the consent order, the court would have removed the name of Babu Singh & Associates from the agreement. Babu Singh & Associates are not strangers to the plaintiff for, while the agreement was made Babu Singh & Associates were the solicitors for the plaintiff as well.
[30] The learned counsel submitted that there was no evidence that the plaintiff had communicated with Messrs Babu Singh & Associates between the date of the consent order (20 November 2008) and 15 March 2009. If the plaintiff had done so and then been told that they were not acting for the defendant, they could have written formally to the defendant's litigating solicitors (Messrs Neel Shivan) to advise them where to pay the deposit. If there was no response the plaintiff could have taken out fresh proceedings to vary the consent order. The learned counsel submitted that the learned Judge appears to have placed much weight on the letter dated 21 March 2011 (pg 103 of the RHC)) of Babu Singh Associates to the plaintiff.
Submission of the learned counsel for the plaintiff
[31] The learned counsel for the plaintiff was not able to take this case any further other than supporting the findings of the learned Judge. Referring to the deposit that the defendant claimed was a requirement of the agreement, the learned counsel for the plaintiff submitted that the deposit could be paid at the settlement with the balance purchase price.
[32] Considering the above submission there is no doubt that no attempt was made by the plaintiff to make a deposit. The primary task of the court is to discover from the consent order itself what the order says and means. I have already referred to the consent order. The consent order appears to vary the purchase price and the date of settlement. The court should have considered the terms and conditions of the agreement after amending the purchase price and the date of settlement.
[33] In the agreement the purchase price was $236,000.00. The consent order amended the amount to $270,000.00. This was in favour of the defendant. The date of settlement was specified as 90 days from the date of execution of the agreement. The agreement was executed on 5 September 2005. The date of settlement has to be a date 90 days thereafter. The plaintiff made a deposit of $23,600.00 into the Trust account of Babu Singh & Associates on 31 August 2005. That was even prior to the execution of the agreement. However the balance purchase price was paid into the Trust account of Babu Singh & Associates on 23 February 2006. That is again outside the 90 day period. The deposit and the balance purchase price were withdrawn by the plaintiff on 23 February 2006. The consent order fixed the date of settlement as 15 March 2009.
[34] I am of the view that the learned Judge has gone beyond the interpretation of the consent order. The learned Judge by her judgment fixed 30 June 2012 as the date for settlement. I could not find any agreement between the parties for another date. In terms of the agreement, any variation to the terms has to be with the consent of the parties in writing and signed. Considering the submissions of the learned counsel very carefully, I am of the view that the learned Judge has erred in making amendments to the agreement without obtaining the consent of the parties as required by the agreement. Therefore I allow the appeal and set aside the judgment with costs fixed at $5000.00 payable to the defendant by the plaintiff.
Gamalath JA
[35] I too agree that the appeal should be allowed with costs.
The Orders of the Court are:
3. Costs fixed at $5000.00 payable to the appellant within 28 days.
Hon. Justice W. Calanchini
PRESIDENT, COURT OF APPEAL
Hon. Justice E. Basnayake
JUSTICE OF APPEAL
Hon. Justice S. Gamalath
JUSTICE OF APPEAL
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