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MY Transport Co (Fiji) Ltd v Housing Authority [2002] FJHC 246; HBC0499j.2000s (22 February 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0499 OF 2000

Between:

M.Y TRANSPORT CO. (FIJI) LTD
Plaintiff

and

HOUSING AUTHORITY
Defendant

Mr. H. Lateef with Mr. I. Razak for Plaintiff
Mr. S. Chandra for Defendant

JUDGMENT

By Summons dated 7 November 2000 supported by an Affidavit of Mohammed Yasin (f/n Mohammed Aziz), hereinafter referred to as the Athe Plaintiff=s Affidavit@) the plaintiff is seeking the following relief:

(a) A Declaration that the Defendant should have paid the sum of $30,000.00 (THIRTY THOUSAND DOLLARS) to the Director of Lands before obtaining Consent for transfer of 4.9 hectares of land on Lot 1 plan No. 5 1436 situated at Reservoir Road and comprised in Crown Lease No. 6152 (part of) (Ahereinafter referred to as Athe Land@).

(b) An ORDER for the Defendant to pay the sum of $30,000.00 to the Plaintiff.

The Defendant filed an Affidavit in Reply sworn by its Manager Legal on the 8th December 2000 (hereinafter referred to as Athe Defendant=s Affidavit@). The Plaintiff filed a response to the Affidavit in Reply on the 25th January 2001, (hereinafter referred to as Athe Plaintiffs Affidavit in Reply@).

Both counsel presented their arguments on the hearing of the Summons.

In the Skeleton submission document handed in to Court by Mr. Lateef, are set out very clearly the facts (about which there is no dispute) surrounding this case and the issue for the Court=s determination. I can do no better than set it out as hereunder.

The Plaintiff=s case

The Defendant had advertised the land for sale in the Fiji Times news paper in May 1999. (See annexure AA@ of the Plaintiff=s Affidavit).

The Plaintiff tendered for the purchase of land at the total purchase price of $150,000.00 (ONE HUNDRED AND FIFTY THOUSAND DOLLARS). (See annexure AB@ of the Plaintiff=s Affidavit).

The Defendant had accepted the Plaintiff=s tender and agreed to sell the land for $150,000.00 (ONE HUNDRED AND FIFTY THOUSAND DOLLARS) TO THE Plaintiff. The Plaintiff paid $30,000.00 (THIRTY THOUSAND DOLLARS) as deposit to the Defendant.

On the 8th of July 1999 the Plaintiff and the Defendant entered into a sale and purchase Agreement (AAgreement@) for the sale of the land (see annexure AC@ of the Plaintiff=s Affidavit). Clause 1 of the Agreement specifically stated that the total purchase price for the property was $150,000.00 (ONE HUNDRED AND FIFTY THOUSAND DOLLARS), $30,000.00 (THIRTY THOUSAND DOLLARS) being the deposit and the balance sum $120,000.00 (ONE HUNDRED AND TWENTY THOUSAND DOLLARS) to be paid on settlement.

Clause 4 of the Agreement stated that the agreement was subject to the consent of the Director of Lands, the Lands Department being the AHead Lessor@. The Defendant was the lessee of the Land.

After the Agreement was executed the Defendant made the necessary application to obtain the consent of the Directors of Lands. The Director agreed to grant the consent subject to some conditions one of which was payment A$30,000.00 to the Director of Lands being 20% of the Sale Price@. (See annexure AE@ of the Plaintiff=s Affidavit).

The Defendant required the payment of $30,000.00 (THIRTY THOUSAND DOLLARS) to be made by the Plaintiff instead of paying the same itself from the sale price. (See annexure AG@ of the Plaintiff=s Affidavit).

The Plaintiff had never agreed to pay the sum of $30,000.00 (THIRTY THOUSAND DOLLARS) to the Director of Lands. It is the policy of the Lands Department to impose a penalty on the lessee of a land for selling undeveloped land. Since the Defendant had not developed the land was selling the same, the Director of Lands imposed a 20% penalty on the sale price to be paid by the Defendant as lessee. (See annexure AA@ of the Plaintiff=s Affidavit in Reply).

The Defendant persistently refused to pay the penalty to the Director of Lands and required the Plaintiff to pay the same. The Defendant threatened to rescind the Agreement if the penalty was not paid by the plaintiff. (See annexure AG@ of the Plaintiff=s Affidavit).

As the Plaintiff had already paid $30,000.00 (THIRTY THOUSAND DOLLARS) deposit for the purchase of the Land which it did not want to forfeit, the Plaintiff paid the sum of $30,000.00 (THIRTY THOUSAND DOLLARS) to the Director of Lands Aunder protest@. (See annexures AH1' and AJ@ of the Plaintiff=s Affidavit).

The Plaintiff further paid the sum of $120,000.00 (ONE HUNDRED AND TWENTY THOUSAND DOLLARS) on settlement and obtained transfer of the land.

The Plaintiff=s application is for recovery of sum $30,000.00 (THIRTY THOUSAND DOLLARS) from the Defendant which sum the Plaintiff paid under protest to the Director of Lands.

Defendant=s contention

The defendant=s reply to the claim is contained in the affidavit of Jagdish Prasad, Manager Legal Services employed by the defendant.

The defendant says that the sale was >subject to further conditions as contained in paragraph 4 of Sale and Purchase Agreement= which specifically imposed an obligation on the plaintiff to Apay all stamp duties, Registration fees and incidental disbursements and all legal costs incidental to this agreement and related documents@.

Prasad is advised and believes that >incidental disbursements included any fee or levy that may be imposed by Director of Lands as a condition for granting his consent to the dealing.=

The defendant refutes the statement that it did not develop the land comprising 33 acres and 3 roods. It says that except for the 4.9 hectares the land in question, it did develop the rest of it.

Consideration of the issue

The only issue for the Court=s determination is as to who should be responsible for the payment of the $30,000.00 in question i.e. whether the plaintiff or the defendant.

I have given careful consideration to the submissions from both Counsel.

The plaintiff argues that it entered into the Sale and Purchase Agreement for the purchase of the land for the sum of $150,000.00 and no more except stamp duty etc as stated in paragraph 4 referred to hereabove.

One cannot go outside the provisions of the said Sale and Purchase Agreement. The parties entered into a contract. On the affidavit evidence before me I find as fact that:

(a) the total purchase price was $150,000.00;

(b) the plaintiff also paid stamp duties etc as required under the said paragraph 4, but I reject the defendant=s argument that >incidental expenses= in paragraph 4 covered the payment of $30,000 to be paid by the plaintiff for by no stretch of the imagination can one imagine this to be so. It is such a large amount and if it was intended to include this in the Agreement then the parties should have and would have specifically stated it in the Agreement;

(c) it is clear that the selling price was $150,000.00 and that is all that the plaintiff was required to pay by way of purchase price;

(d) the defendant was to obtain the consent of the Director of Lands at its own expense. The plaintiff is only concerned with purchasing the land for $150,000.00. If the Director of Lands wants $30,000.00 before giving consent then it is for the defendant to pay for that as it is a matter between them, and it is only when the consent is given that the defendant will be in a position to abide by the Agreement with the plaintiff.

The defendant should have known that in circumstances such as this, where there is a sale, the Director is bound to levy a certain amount. It appears that the defendant overlooked this fact otherwise it would have included this amount or any other amount in the full purchase price. This oversight just goes to show that one can pay dearly for this error as has happened in this land dealing. The intention is quite clear from the provisions of the Agreement. It is not for this Court to give a different interpretation to its provisions then what is clearly stated. If the $30,000 which was in contemplation on the part of the defendant as payable by it, then it could have easily increased the purchase price from $150,000 to $180,000 otherwise $150,000.00 is the only amount payable by the plaintiff.

In the outcome, for these reasons, the plaintiff succeeds in its claim and is entitled to the Orders sought as referred to hereabove and I so order with costs to plaintiff in the sum of $300.00.

D. Pathik
Atg. Judge

At Suva
22 February 2002