"That the Plaintiff intended for purposes of its books to have the agreement (Exhibit IV) executed. Mr. Southwick who was the
Director of the Plaintiff and the Defendant made it very clear that the agreement was executed on the clear basis that until the
payment of $235,000 under Clause 3(2) (a) and $147,342 under Clause 3(2)(b) were made the Ownership of the vessel would not be transferred
or pass. That was a collateral agreement between the parties. Mr J Cowen (the Chairman) and the Board of the Plaintiff clearly agreed
to this. Mr Southwick had clearly understood this to be the arrangement. That is why he had insisted on the inclusion of the non-merger clause 6 in the agreement which stated:
"6. N0N-MERGER
None of the terms, conditions or any act, matter or thing done under or by virtue of or in connection with this agreement shall operate as a merger of any of the obligations, rights or
remedies of the parties in or under this agreement and such obligations, rights and remedies shall at all times continue in full force and effect in accordance with their terms." (emphasis added)
Accordingly, it was collaterally agreed that the Ownership (and possession) of the vessel would remain with the Defendant and the
Plaintiff will continue with the $5000.00 per month lease payments until the Plaintiff was in a financial position to pay the amounts
referred to in clause 3(2)(a) and (b).
This must be so. The Defendant, or rather Mr Southwick, would not have been that naive to allow the Plaintiff to have ownership and
possession of the vessel, to take all the earnings and benefit from the vessel, and yet not having been paid any amount except $5000.00
per month which was much less than the earnings from the vessel."
The defendant submits that the above contention is supported fully by the Financial Statements of the Plaintiff Company (exhibit I)
in schedule 3/5 under the caption "Subsequent Events", similarly under schedule 3/4 paragraph 6, of the 1990 Financial Statement (exhibit 2).
The defendant argues (p.10 of the said submission):
"However, the agreement of the sale of the Sunbird was entered into on 25th August, 1989. If the intention was, as alleged by
the Plaintiff, that the ownership was to pass on the execution of the agreement, then surely a similar entry would have been made
pertaining to Sunbird that it is yet to be registered. That clearly supports the Defendant's assertion that it was never intended
that upon the signing of the agreement the ownership was to pass to the Plaintiff only upon payments of the sums payable under Clause
3(2)(a) and (b) was that to happen. However, in the meantime the Defendant agreed that the Plaintiff keep all the income from the
boat but paying the Defendant $5000 per month as rental. Consequently, for its account purposes the Plaintiff entered its book as
if the transaction had been completed. Accordingly, in the Accounts of even 1990 there was a ryder in the Accounts."
The defendant says with reference to Exhibits I, J, K that the ownership in the vessel did not pass to the Plaintiff. It says (p.13
of submission):
It is unimaginable for a businessman in his position to have agreed to the transfer of the Ownership of Sunbird to the Plaintiff without
payment. This is particularly when bearing in mind his personal house was given as a collateral mortgage with the mortgage over Sunbird
to FDB.
Accordingly, again the above letters of the Bank confirm the continual financial difficulties of the Plaintiff that it was not in
a financial position to complete the payments referred to in Clause 3(2)(a) and (b) of the Agreement. In fact it is pertinent to
note that the payment of $235,000 was to be paid on the date of the execution of the Agreement and the $147,342 to FDB and the refund
of instalment payments made by the Defendant since 1st February, 1989 were to be made within 90 days of the execution of the agreement. Yet even after 1 year of the agreement even the FDB payments could not be cleared and even after
one year the Plaintiff was in no position to do so.
The Defendant had maintained that it was clearly understood between the parties that the agreement be executed but the ownership was
not to be in fact transferred until the payments under clause 3(2)(a) and (b) were made."
The defendant says (p.15 of submission) exhibits "D" (letter dated 10.1.91 from Plaintiff) and "E" (letter dated 15.1.91 from Plaintiff to Mr. Southwick) "clearly put in nutshell the true state of affairs pertaining to the dealing about the Sunbird" thus corroborating the evidence of Southwick "and the stand taken by the defendant throughout".
The defendant submits that the payment of $235,000.00 under clause 3(2)(a) of the agreement had nothing to do with the issue of shares,
and if at all already issued to the Defendant Company, were done illegally. The said clause did not intend that the said sum was
to be paid by issue of shares, to the contrary it was to be paid in cash on the execution of the agreement.
The defendant summed up its argument thus (p.23 of submission):
"From the evidence and documents, it is very clear that the Plaintiff miserably failed to make all the above payments. Also it
was clear that until all the above payments were made the vessel "Sunbird" would merely be leased to the Plaintiff and
this is precisely what was done. It is significantly clear that the $5000.00 per month payment made was the same as the Defendant
was making to FDB before and this is shown in his accounts. Also the Plaintiff was to pay the FDB payment of $147,342 in 90 days
but it only paid $5000.00 per month. This clearly shows that it was under the lease arrangement and the agreement was executed not
to complete and record the sale as such but for other purposes as discussed above."
The Plaintiff's submissions
In response to the Defendant's submission, the Plaintiff says that it does not admit any of the contentions "whether they are contentions of "common ground" or "otherwise".
It says that the P's claim to title to the vessel is brought under a formal agreement whose authenticity, date and due execution are
all admitted. The Plaintiff's damages claim is based on the wrongful re-taking by D of possession of the vessel in March 1992.
In answer to the D's contentions, the P says that the allegations "carry the same insurmountable problem for the Defendant, namely that the Defendant's knowledge of them would have raised in
the Defendant the duty of action as the Plaintiff's manager."
The Plaintiff further argues (p.2 of submission):-
"Had the allegations been true, they would have been known to the Defendant. Since the Defendant was the Plaintiff's manager,
that knowledge would have raised an immediate duty in the Defendant to act; at the very least to properly record the allegations
and to formally and unmistakably inform the Plaintiff's board of directors of them. That would have been the standard of care required
of any manager. What must the standard have been in this case, where it is the manager itself that is the claimant.
The Plaintiff says that there is a situation where the D is "simply not re-acting, or at worst deliberately refraining from action all in flagrant breach of its managerial duties as causing
or allowing the P to do nothing about situations of which the D was fully aware".
The Plaintiff says that the doctrine of estoppel arises in this case and Mr. Smith refers the Court to the case of (MERCANTILE BANK v CENTRAL BANK 1938 AC 304)
The Plaintiff argues that (p.3 of submission):-
All the records of the Plaintiff prepared under the Defendant's management (some formally signed by the Defendant's managing director)
show that the Sunbird was sold to, possessed by and operated by the Plaintiff. Even if the Defendant believed otherwise, having made
the representations by conduct it has, it can not offer evidence to the contrary of the position it endorsed.
None of the records of the Plaintiff prepared under the Defendant's management (some formally signed by the Defendant's managing director)
indicate the Sunbird to be leased to the Plaintiff. Even if the Defendant believed otherwise, having made the representations by
conduct it has, it can not offer evidence to the contrary of the position it endorsed.
All of the records of the Plaintiff prepared under the Defendant's management (some formally signed by the Defendant's managing director)
show that the Plaintiff paid off all except $136.92 of the FDB debt. Even if the Defendant believed otherwise, having made the representations
by conduct it has, it can not offer evidence to the contrary of the position it endorsed.
All of both the Plaintiff's records and the Defendant's records show that the Defendant received the $235,000.00 for which it counterclaims. None of the records of either
the Plaintiff or the Defendant (both formally signed as correct by the Defendant's managing director) show the debt that must have
existed had that not been so.
The learned counsel for the Plaintiff deals with another matter and that concerns the D's allegations regarding "the real essence of the agreement" (2nd paragraph of D's submissions).
He says that Dr. Sahu Khan tries to show that in transfer the agreement between the parties was not what is recorded in the formal
agreement. The "extrinsic evidence" rule is inapplicable in this case he says. Mr. Smith says that there has never been any dispute as to the nature of the transaction
here, namely, that it was a sale and purchase agreement. He says that what the Defendant is now saying is "that the agreement should not be read as it is written because it does not properly record the agreement between the parties".
He refers the Court to the following passage from the judgment of LORD DENMAN in the leading case of GOSS v NUGENT 1833 5B & Ad. 58, at 64:-
"If there be a contract which has been reduced into writing, verbal evidence is not allowed to be given of what passed between
the parties, either before the written instrument was made, or during the time that it was in a state of preparation, so as to add
to or subtract from, or in any manner to vary or qualify the written contract."
Mr. Smith submits that it is clear beyond question that the property in the vessel passed to the P on 25 August 1989 in accordance
with the terms of clause 5.1 of the Agreement. The D is estopped by the records it kept and its own acts and admissions and that
everything the Plaintiff did or did not do was actually done by the D because the D was the P's Manager.
Mr. Smith further submits that there was not a mention of any variation of the Agreement (or of the non-payment of anything except
$136.92 which the P admitted) until immediately before the first trial of this action was about to commence on 26 August 1993 when
the then counsel for the D applied for leave to file a further amended statement of defence and counterclaim. This was more than
16 months after the action commenced.
Mr. Smith concludes with the following submission (p.11 of submission):-
The Plaintiff says that it is apparent that as the trial loomed, realising that half of Suva could aver that the Plaintiff did get possession of the vessel and that it kept it for 30 months, and realising belatedly that the mere failure by the Plaintiff to
pay $136.92 ($136.92 out of a transaction in which it had paid $382,205.08) was going to have no effect on the passing of property clause in the Agreement, the Defendant concluded that it had
to choose another defence - notwithstanding that its affidavits too, had already committed it to the obvious truths it had already
pleaded.
What is more, it had to be an innovative defence because it -
1. had to destroy the clear effect of clause 5.1 of the Agreement;
2. had to explain away the fact that the Plaintiff had operated the Sunbird for 30 months;
3. had to explain away the fact that the Plaintiff had paid all except $136.92 of a total price of $382,342.00;
4. had to explain away the fact that as part of that payment process the Plaintiff had paid $5,000.00 a month to the FDB for more
than 30 months.
The explanation the Defendant chose, addressed all those things - however questionably - but what it could not do was to erase the truth that had been stored away before the Defendant had found need of its imagination.
The determination of the issue
(i) Evidence adduced
The decision in this case depends upon my findings on (a) whether there was a variation of the agreement as alleged by the defendant
or (b) was it a straight-out agreement to sell the vessel "Sunbird" to the plaintiff.
I have already set out hereabove at considerable length each party's case. I shall now briefly outline the evidence adduced in this
case, in the light of which I will determine the issue before me.
For the Plaintiff evidence was given by JOHN GUTHERIE HOOD (W1) a chartered accountant and Manager of Price Waterhouse (Suva Office), KARIM BUKSH (W2) a financial consultant and PATRICK BOYLE (W3) an accountant. Testifying for the Defendant was GRAHAME BRUCE SOUTHWICK.
In so far as it is relevant to the issue before me, HOOD who became Manager of Price Waterhouse on 3 June 1992 and who had nothing to do with the parties prior to his joining, testified,
looking at the Financial Statements of the Plaintiff for the period to 30 June 1989 signed by the directors, that P was indebted
to D in the sum of $4122; and Account to 30 June 1990 shows the indebtedness as $33,300. He said that there is nothing in the accounts
to show that there is any lease expense. Between 1989 and 1990 the P paid Fiji Development Bank the sum of $93,460 leaving a balance
of $45000.
The second witness KARIM BUKSH (W2) testified that shareholders in P Company are Competitive Foods of Australia and Wasawasa Fisheries Ltd (D Company). The witness
was approached by Cowen (a director of P Co) as consultant to look at certain aspect of P's affairs. There were disputes with Grahame
Southwick (Managing Director of P). They also had some difficulties with the vessel. The vessel was taken by the Defendant or G.
Southwick in February 1992. G. Southwick was Managing Director of both P & D and he signed the agreement for both the Companies.
He said that in February 1992 the vessel was in possession of P. It was taken back by D in February - March 1992 coinciding with the
time when the entire staff of P Co. joined a new Company. The vessel was in an excellent condition then. In June-July 1991 it was
fitted with new fishing gears; it was a "general refitting programme". The value of the vessel after refitting would be $180,000 to $200,000. He said that market for leasing at that time in March 1992
was very 'big' and could fetch $5000 to $8000 per month.
In cross-examination he said that he got involved in February-March 1992 into the affairs of P. He agreed that Southwick did say that
the vessel belonged to D and that D had not been paid for it; he said that he cannot recall that he said the agreement for sale "was not to be put in place". He also said that the vessel was leased to P and that the $5000 that the P paid was in relation to lease arrangement. Mr. Buksh
agreed that under clause 3.2(a) of the agreement $235,000 was to be paid by the Plaintiffs and he said that this was paid by issue
of shares and although the agreement does not say that it had to be paid in that manner it can be "cash or kind".
He said that before 1992 he had nothing to do with the vessel. In March 1992 it was under the control of the D. He said he has never
been in that vessel but had a look at it from outside. The witness does not know who carried out improvements on the vessel. He said
that from records he can say it cost $81,000 to refit the vessel.
In re-examination he said that if the P was in debt he would find 'signs' of that in the accounts. It does not appear in the accounts of 1990 and 1991. The third witness BOYLE who was called to testify in rebuttal was not associated with the Plaintiff before March 1992 when he became a director of the P
Company. He is a certified practising accountant. He is aware of the agreement but he said that "no agreement" was made to "vary that agreement". As alleged by Southwick he said that he does not recall having made a statement that the P Company was not the owner of the vessel.
He said that he did not tell Andrews (another director who was not called) that the vessel was only leased and that the Agreement
to purchase it will be put in abeyance. He said that he had nothing to do with the balance sheets.
For the Defendant GRAHAME BRUCE SOUTHWICK, company director, testified as to how the P company came into being; it was a joint venture with 68% overseas and 32% local content
(defendant company).
Mr. Southwick's evidence on the issue was along the lines stated hereabove in the Defendant's submissions. In short, he said, inter
alia, the P was to purchase "Sunbird" from D. By arrangement P was to be paid $5000 per month charter fees. In February-March 1989 when the vessel was given to P it was
given to it as lessee. P commenced to pay in March 1989 but the agreement (exhibit 4) was not signed until 25 August 1989. The $5000
a month was to be paid direct to FDB on behalf of D. This $5000 was paid from March and continued to be paid after the agreement
was signed.
He said that the sum of $235,000 was to be paid on the date of the agreement and $147,342 was to be paid to FDB 60 days following
date of agreement but nothing was paid by the Plaintiff.
(ii) Findings
(a) Provisions of Agreement not fully complied with by Plaintiff
In the light of the evidence before me including documentary evidence I make findings of fact as hereunder.
The dealings between the parties were finalized on 25 August, 1989 with the execution of the agreement of even date (exhibit 4).
Subject to what I say hereafter in regard to payment under clause 3.2(a), it is clear from the evidence that the terms of the agreement
were not fully complied with by the Plaintiff. I find that the mode of payment of the purchase price of the vessel as required under
item 3.2(a) was not met, except to the extent of $5000 per month paid under item 3.2(b) to Westpac to clear the debt of the Defendant.
I therefore disagree with the Plaintiff's assertion that it had paid the amounts required under items 3.2(a) and 3.2(b) of the agreement.
In my view, on the evidence and in the circumstances of this case, bearing in mind the Reserve Bank conditions of approval, payment
by issue of shares to the value of $235,000 is not payment as intended under item 3.2(a) It had to be in cash and not in the form
of shares. I therefore reject the opinion of BUKSH that payment could be made by issue of shares for I find that that was not what
was intended nor is there anything in writing or otherwise to show that there was a variation of the agreement in that regard. Hence
I find that this sum (under claim 3.2(a)) was not paid by the Plaintiff.
I find that as far as the possession of the vessel is concerned, it was given to the Plaintiff upon the execution of the agreement.
There is no dispute about the fact that the Plaintiff had the use of the vessel all along until it was taken away from it in March
1992 for, according to the defendant, for non-compliance with the provisions of the agreement regarding payment of the purchase price
referred to in items 3.2(a) and 3.2(b). On this aspect under item 5.1 of the agreement it is stated that "notwithstanding anything contained in this agreement, right title and interest in the Ship and Equipment will pass to the purchaser
on the date of this Agreement"; but under item 5.2 of the agreement there is provision as to when the transfer of the vessel was to take place.
The "completion date" is defined in item 1.1 of the agreement to mean "the date upon which the purchaser makes the payment referred to in clause 3.2(b)". A further item 5.2 in the agreement reads that "on the completion date the Vendor will deliver to the Purchaser all duly executed bills of sale, transfers ..." etc "free from encumbrances together with any documents or other evidence of title".
In the light of the above provisions of the agreement I find that because the Plaintiff has complied with the relevant provisions
of the agreement under said item 3.2(b), the defendant is required under item 1.1 and 5.2 to execute a transfer of the vessel to
the Plaintiff in accordance with item 5.2, although the said sum of $235,000 has not been paid in the manner as required under the
agreement. The non-payment of this sum cannot be the fault entirely of the Plaintiff for SOUTHWICK as "common officer" acquiesced in such a situation to continue without taking appropriate steps, for example by a resolution of the companies, to reduce
to writing the true situation.
I therefore find that in all the circumstances of this case, subject to what I say hereafter on the alleged variation of the provisions
of the agreement, that it was a straightout sale and purchase agreement between the parties (the two companies) with the terms and
conditions and mode of payment as set out therein.
(b) Witnesses' Evidence on alleged variation and the law
Dr. Sahu Khan has made a lengthy submission that there was a variation of the agreement as stated by him hereabove.
I have given careful consideration to all the evidence that has been adduced in this regard and also the cases cited by Dr. Sahu Khan
in support of his argument.
I am not convinced that there has been a variation as alleged after weighing all the evidence that has been adduced in this case particularly
bearing in mind what each of the four witnesses has said on variation and after considering the documentary evidence produced.
This is what the witnesses have said bearing on this aspect.
Mr. Hood said that there is no entry in the Financial Statements regarding any lease to indicate that there was a variation of the
agreement.
As for the witness BUKSH (W2), he came very late on the scene to be able to be of much, if any, assistance in this regard. In any case he was merely giving
his views and opinions from documentary evidence.
Whereas BOYLE'S (W3's) evidence was in complete contradiction to what SOUTHWICK (the only witness for the defendant) said in regard to this matter. BOYLE does not know of any variation of the agreement.
In dealing with the aspect of variation it is SOUTHWICK'S evidence which has given me a lot of concern. He plays a double or a dual
role. He is director in both the companies. He signed the agreement for both Plaintiff and Defendant. In his situation he can switch
over from one company to the other. He can lodge whatever balance sheet he wishes incorporating whatever material suits him and then
say that there was a variation of the terms of the agreement. According to my understanding of the balance sheets (exhibits 1, 2
and 3) of the Plaintiff, they do not reveal any variation. If there was it should have been reflected in them. A lot was read into
these balance sheets by the Defendant but I do not find that the various items referred to therein during the hearing have any relevance
or effect on the agreement to establish that there was a variation of the nature alleged by the defendant.
As director of both the companies SOUTHWICK was fully aware of their financial position. In fact he was the key figure in the day to day operation of the companies.
What was preventing SOUTHWICK from reducing the alleged variation to writing for after all it was such an important variation if the
agreement was at all varied. It goes to the very root of the agreement. Mr. Southwick has by-passed the conditions imposed by the
Reserve Bank of Fiji in relation to bringing into the country the funds involved in a joint venture with foreign partners. If the
financial position of the Plaintiff company was as bad as it was made out by Southwick then he should have set in motion ways and
means of varying the agreement in writing as the variation that he alleges is quite substantial which in effect changes the whole
character of the agreement particularly when it concerns the mode of payment of the purchase price. On top of that payment continued
for thirty months without any indication as to what was to happen to the original agreement. There ought to have been a proper resolution
of the companies (P & D) to give weight to variation. In this situation it is difficult to swallow Southwick's argument on variation.
The only thing that has happened here is that the sum of $5000 per month for a period of about 30 months was paid to Westpac, which
I find was for the purpose of reducing the Defendant's debt to the Bank, and this payment was to be credited towards the purchase
price. I reject the defendant's argument altogether that this money was for the lease of the vessel to Plaintiff. I find that this
payment was made for the purpose I have found with the full concurrence of SOUTHWICK who was at the helm of both the companies. SOUTHWICK
agrees that the amount payable under 3.2(a) was to come from offshore and for which approval was given by the Reserve Bank did not
eventuate in full.
I find that SOUTHWICK'S assertion regarding variation was an after-thought. He alone knew of the alleged variation because of his
position whereas BOYLE as director had no knowledge of it. I prefer to accept the evidence of BOYLE in this regard to that of SOUTHWICK.
As Mr. Smith has said, everything that went on in regard to the two companies was well within SOUTHWICK'S knowledge and he could
manipulate matters as he wished. This was a case where knowledge of one company is imputed to another company through the medium
of a common officer SOUTHWICK. I quote from the judgment of COLMAN J in CREDIT SUISSE v BOROUGH COUNCIL OF ALLERDALE 1995 LL.L.R Vol 1 p.315 at p.361 on the question of where to draw the line in this regard:
"Referring to the decision of the Court of Appeal in In re Marseilles Extension Railway Co., L.R. 7 Ch. 161, he continued:
Where is the line to be drawn, or what is the test to be applied in order to say whether or not in each case the knowledge of the
common officer is the knowledge of each company employing him? It seems to me that, broadly, the Lords Justices do draw the line
thus, that the knowledge which has been acquired by the officer of one company will not be imputed to the other company, unless the
common officer had some duty imposed upon him to communicate that knowledge to the other company, and had some duty imposed on him
by the company which is alleged to be affected by the notice to receive the notice."
In the present case SOUTHWICK as a "common officer" failed to communicate to the Plaintiff the real situation regarding the agreement and failed in his duty to take appropriate steps
to rectify the agreement in an appropriate manner by reducing the alleged variation to writing rather than continuing to accept the
payment of $5000 per month for so long without any indication of the fate of the provisions of the agreement particularly as to the
mode of payment of the purchase price. As it was the purchase price would never have been paid and the agreement would have remained
indefinitely in name only.
Why would the Plaintiff want to continue paying for 30 months the $5000 per month indefinitely without becoming the ultimate owner
of the vessel which was the intention behind the agreement. The defendant extorted the payment under the guise that the vessel was
leased immediately following the date of the execution of the lease. Because the financial position of the Plaintiff company was
weak as stated by SOUTHWICK, I fail to understand why a lease agreement was not entered into in the first place rather than entering
into the agreement for sale and purchase the subject matter of the action.
In all the circumstances of this case I find that the evidence is not strong enough to convince me that there was this alleged variation
at all. Hence on a balance of probabilities it has not been established that there was a variation. Dr. Sahu Khan has stated that
the defendant gave parol evidence to show what the real intention was and what was the true nature of the written transaction.
In this case there is no doubt about the "true nature of the transaction". It was a sale and purchase agreement of the vessel. Here I cannot allow evidence that the agreement did not correctly express the
intention of the parties or that the defendant did not understand it. As has been said by JAMES L.J in Ex Parte MORGAN In Re SIMPSON C.A. 1875-6 2 Ch.D p.72 at 84:
"No doubt there is an equity, under some circumstances, to set aside a deed. There is equity to rectify a deed. But it must be
judicially set aside or rectified, and, unless and until that is done, it is a violation of first principle to allow evidence as
to the meaning and intention of parties, when there is an actual agreement in writing, the record of that meaning and intention."
JAMES L.J goes on to say:
"It is, however, quite possible that the recital in the deed may be erroneous as to the previous arrangement. It is quite possible
that in fact after entering into such an agreement the parties may have found it not workable, and have superseded it by another
agreement, either expressed or to be inferred from course of dealing. They may have entered into an agreement to give up the relation
of principal and agent, and to become simply vendor and purchaser, as found by the verdict of the jury. But it was the duty of the
Judge to have told the jury that it required the strongest evidence to support the contention that the recital was not true, and that it required like evidence to show that there was such a substituted agreement, and what that agreement was." (underlining mine for emphasis)
In this case I am not satisfied, applying the civil standard of proof, with the defendant's contention in regard to the true intention
and consideration. As stated in the above-quoted passage, that it requires the "strongest evidence to support" such a contention that there was a variation of the agreement of the nature alleged as hereabove or that there was "such a substituted agreement, and what the agreement was". This requirement has not been fulfilled in this case.
In the outcome, for the above reasons I find that the defendant has wrongfully rescinded the agreement and has unlawfully detained
the vessel in the absence of any provision in the agreement as to what is to happen with the vessel in default of payment of the
purchase price. Since payment was made, as I have found, under item 3.2(a) of the agreement the Plaintiff became entitled to transfer
of the vessel under items 1.1 and 5.2 of the agreement.
For the above reasons the Plaintiff substantially succeeds in its claim in this action.
Having found as above, I find that the defendant has failed to prove its Counterclaim. It is therefore dismissed with costs which
is to be taxed unless agreed.
In the outcome there will therefore be judgment for the Plaintiff against the Defendant as follows and it is ordered as hereunder:
(a) That upon payment by the Plaintiff to the Defendant within six weeks from this judgment the sum of $235,000 which was required
to be paid by the Plaintiff under item 3.2(a) of the Agreement dated 25 August 1989 the possession of the vessel "Sunbird" and its immediate transfer in the name of the Plaintiff is ordered AND if default is made in the said payment the agreement shall be deemed to have been rescinded and the Defendant shall do what it likes
with the vessel.
(b) That upon payment of the said sum of $235,000 the Defendant do give credit to the Plaintiff for the sum of $5000 per month paid
to Fiji Development Bank for 30 months or whatever sum has been paid in this manner towards the purchase price of the said vessel to fulfil the requirements of item 3.2(b) of the said agreement.
(c) That the Plaintiff is not entitled to damages for the alleged unlawful detention as the Plaintiff had itself failed to comply
with the payment of $235,000 under item 3.2(a) of the agreement whilst it made full use of the vessel by doing business with it and
not accounting to the defendant or anyone else for the proceeds from the said business.
(d) The defendants are ordered to pay the costs of this action which is to be taxed if not agreed.
D. Pathik
Judge
At Suva
25 March 1996
Hbg0004j.92s
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