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Slattery v Naqau [2009] FJHC 178; HBC345.2005L (28 August 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 345 of 2005L

BETWEEN:

MARY GARDNER SLATTERY
of Enamanu Street, Nadi, Retired Pensioner
Plaintiff

AND:

ILIKI NAQAU
of Nabau Village, Cuvu
1st Defendant

AND:

VASEVA SAUMAKA
of Nabau Village, Cuvu
2nd Defendant

FINAL JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr. A Sahu Khan for the Plaintiff
No Appearance for the Defendants

Solicitors: Messrs M K Sahu Khan for the Plaintiff
No Appearance for the Defendants

Date of Hearing: 11 April 2007
Date of Judgment: 28 August 2009

INTRODUCTION

[1] Ms Slattery came to Fiji from Australia in about 2003 to live out her retirement here because she was taken by the friendliness of our people that she had enjoyed on previous visits here.

[2] Unfortunately, she befriended the most undesirables of our country and, in the words of her Counsel, got dubed into losing her small fortune which was to support her for the rest of her retirement.

[3] This is her claim to recoup her losses and hopefully restore a little of the trust that she had in our people and which brought her here in the first place.

THE FACTS

[3] The facts of this case have been clearly set out in Ms Slattery’s affidavit sworn on 1 December 2005 and I need do no more than quote from it:

1] About 12 months ago I decided to retire and reside in Fiji as I was much taken with the friendliness and hospitality of the people of Fiji.

2] I arrived here with my nephew Leslie John Quinn.

3] On one of my previous trips I met a person by the name of Aisea Natoga (also known as ‘Wise’) who was introduced to me through my nephew.

4] I was much taken in with Aisea Natoga’s credibility as he held himself out to be a good Christian and he held out other members of his village to be good, caring Christians.

5] My nephew purchased a minivan which he handed over to Aisea Natoga to operate for which he would receive a weekly income.

6] Mr. Aisea Natoga convinced my nephew that foreign nationals were not allowed to own vehicles in their own names and that vehicles would have to be wholly or partially registered in the name of someone who was a Fiji citizen on the Land Transport Authority Vehicle Registration Certificate.

7] As I was convinced of Aisea Natoga’s honesty as a Christian which he constantly referred to and reminded me of, I suggested that I similarly purchase two minivans for use by members of Aisea Natoga’s village who would manage the vehicles and pay me a weekly income.

8] At the time I was unaware of the issues of registration by the Land Transport Authority and I assumed and trusted that these vehicles would be in my name or that of my nephew.

9] The vehicles were purchased with all of my money and no contribution from anybody else and then registered in the names of the 1st and 2nd Defendant.

10] The registration number of the vehicle in the name of the 1st Defendant is EQ 589 (see LTA registration certificate annexure “MGS1”) and was bought on the 28th of January, 2005.

11] When EQ 589 was purchased Palas Auto Services Limited, a firm of car dealers (hereinafter “Palas”), issued an invoice (see Palas invoice annexure “MGS 2”) in the name of 1st Defendant and my nephew, Leslie John Quinn. However, I provided the purchase price of $20,273.00.

12] Palas have subsequently provided me with a card transaction receipt which shows that the sum of $20,273.00 was paid inclusive of a deposit of $1,000.00. (see Palas car transaction receipt annexure “MGS3”).

13] I can provide evidence that the money came from my bank account. On the 26th and 28th of January, 2005 two withdrawals were made from my bank account in the sum of $1,000.00 and $20,173.00 which correspond to the deposit and the purchase price for the vehicle for the same date. (see Mary Gardner Slattery’s bank statement annexure “MGS 4”).

14] The vehicle with the registration number ER 454 is in the name of the 2nd Defendant (see LTA registration certificate annexure “MGS 5”) and was bought on the 7th of March, 2005 (see Palas invoice annexure “MGS 6”). Again, this vehicle was bought with all my own money and no contribution from anybody else.

15] Palas have subsequently provided me with a card transaction receipt which shows the sale being made to my nephew Les Quinn (who is mistakenly referred to as ‘Las Quinn’) for the sum of $20,500.00 (see Palas car transaction receipt annexture “MGS 7”).

16] I can provide evidence that the money came from my bank account. On the 7th of March 2005 I withdrew $25,000.00 for the purchase of the vehicle which corresponds to the date of the purchase of the vehicle (see Mary Gardner Slattery’s bank statement annexure “MGS 8”).

17] In November 2005 I started making enquiries about the vans. I made considerable attempts to speak to Aisea Natoga who managed the operation of both vans for both 1st and 2nd Defendants.

18] I also spoke to both Defendants about the minivans who referred me to Aisea Natoga.

19] Eventually I confronted Aisea Natoga and to my considerable surprise he told me that if I wanted the vans back I had to buy them from him as agent or representative or servant of both the Defendants. This deeply angered me as I have always provided money for this person and the other Defendants as well as other members of the village. I have also provided a cash advance of $40,000.00 to Aisea Natoga in an unrelated matter which, I now discover, has been spent. Significantly, all this money represents my personal retirement fund.

20] Aisea Natoga has now told me not to come anywhere near him or his house in the village of Nabau, Cuvu.

21] I wish to reiterate that I did not purchase the vehicles as a gift for both 1st and 2nd Defendants nor did I suspect that my money would be used for someone else’s benefit or that the aforementioned vans would be registered in the names of the 1st and 2nd Defendants when they ought to have been registered in my name or even registered jointly with my nephew and myself.

22] I therefore request that my name be substituted in place of the 1st and 2nd Defendants and that this be recorded on the LTA registration certificate that I am the registered and lawful owner of minivans with registration numbers EQ 589 and ER 454.

THE LONG DELAY

[4] Her troubles have been compounded by the unacceptable and inexcusably long delay in having her claim decided.

[5] Ms Slattery’s solicitors filed her claim on 2 December 2005. She obtained an ex parte order out of this Court on the same day requiring the Defendants to return her motor vehicles and restraining them from stopping her from getting them back. The Court papers were served on the Defendants by Ms Slattery herself on 5 December 2005. The matter was to be called on 13 January 2006. Not surprisingly, the Defendants did not appear so the Court ordered that the interim orders of 2 December 2005 were to be made final and awarded costs to Ms Slattery. The matter was adjourned to 3 March 2006. On 3 March 2006 Ms Slattery’s Counsel sought a date of hearing. Two possible dates were set, 2 June 2006 and 24 November 2006. On 2 June 2006 the matter was adjourned to 24 November 2006. No reasons were noted on the Court file for the adjournment. On 24 November 2006 at Counsel’s request a date for formal proof was set for 30 January 2007. Counsel was not ready to proceed on that day so the matter was adjourned further to 11 April 2007 when Ms Slattery attended this Court and formally proved her claim.

[6] This is another one of those cases which Counsel had asked the Court to deliver judgment based on the trial papers.

EVIDENCE AT FORMAL PROOF

[7] Ms Slattery’s affidavit was tendered and accepted as evidence and I need not repeat what was there said. However, what was missing from her affidavit was how she felt about being betrayed in the way she was. Her evidence, and I type from the learned trial Judge’s notes, was:

“This episode was very emotional. I felt betrayed. I thought I was a family member and I treated them as such. I have suffered emotional distress. It’s been quite an ordeal for me – anguish. I did what I did out of kindness and was betrayed. The trust has gone. It’s a great financial burden for me. I am now constrained in terms of the money I have. My pension funds are all gone. I have not heard from them since – trust gone.”

[8] The mechanic that used to do minor repairs to the two vehicles was called to give evidence on Ms Slattery’s behalf. He said that when he did those minor repairs the vehicles were in good condition. I do not think I need to go into the details. His evidence can be summarised in this phrase: “the vehicles had been stripped and replaced with old or damaged parts from the roof racks to the tyres, from the tail gate to the front bumper, and from the top of the engine to the oil sump.” This is no exaggeration.

[9] The two vehicles were bought in 2005 for $40,500 in total. Both were sold for $20,000 in 2006 after they were recovered from the Defendants and repaired. In a short period of 12 months the vehicles had lost half of their value, $20,500.

PREVIOUS ORDERS

[10] The Orders that were made final orders on 13 January 2006 were:

1. that the 1st Defendant either by himself or by his servants/agents/employees forthwith return to the Plaintiff the vehicle with registration number EQ 589;
   
2. that the 2nd Defendant either by himself or by his servants/agents/employees forthwith return to the Plaintiff the vehicle with registration number ER 454;
   

100. that the Defendants and/or their servants/agents/employees be restrained from interfering in any manner whatsoever from allowing the Plaintiff her servants/agents/employees and/or bailiff from taking custody and/or possession of vehicles with registration numbers EQ 589 and ER 454 from the Defendants or their servants/agents and/or employees and wherever the said vehicles are situated;
     

d) that one or more police officers be available for the assistance of the Plaintiff in recovering the said vehicles with registration numbers EQ 589 and ER 454.

CLAIMS FOR DAMAGES

[11] Ms Slattery’s Statement of Claim sets out several prayers for relief. Most of those have been superseded by subsequent events and she is left with essentially a monetary claim for the loss in value of her vehicles, namely, $20,500.

[12] The Statement of Claim does not claim for emotional distress and no submissions were led in that behalf so I make no award in that regard.

[13] Similarly, the Statement of Claim did not specifically claim for exemplary damages as required by Order 18 rule 7(3) of the High Court Rules 1988 so I am not able to make such an award even though clearly, in my view, this is one of those rare cases that such an award is justified.

GENERAL & AGGRAVATED DAMAGES

[14] However, the Statement of Claim asks for damages for conversion and detention. The Defendants have detained and used Ms Slattery’s vehicles for their own benefit. They have obtained this benefit by deception and used the vehicles as if they owned them beneficially.

[15] I am also of the view that Ms Slattery is entitled to aggravated damages. I am not precluded by the High Court Rules from making such an award so I will make such an award.

[16] The aim of compensatory damages is to put the Plaintiff back to the position she would have been had she not been wronged by the Defendants. She had spent $40,500 on the purchase of two motor vehicles. She would have owned those vehicles had she not been “dubed” by the Defendants. Further, she did not get any of the income that was generated from the use of those vehicles. I have already made an award for $20,500. In the circumstances, I think an award of general and aggravated damages of $20,000 would be just and would in some way put her back in the position that she would have been had she not been put through this nightmare by the Defendants. If authority is needed for this proposition I need only refer to the House of Lord’s decision in Rookes v Bernard [1964] UKHL 1; [1964] AC 1129 @ 1228, 1229, 1230 per Lord Devlin.

INTEREST

[17] I have a discretion to award interest pursuant to s 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act [Cap 71] from the date the cause of action arose to the date of judgment. I therefore exercise my discretion and award interest at the rate of 6% from 2005 to 2009 calculated as follows: $40,500 x 6% x 4 = $9,720.

COSTS

[18] I think this is one of those deplorable cases that warrant indemnity costs. I assess such costs at $3,000.

CLAIM AGAINST AISEA NATOGA

[19] I agree with Finnigan J before whom this matter came on 2 December 2005, that this action may not be properly determined without Aisea Natoga being made a party. I do not think that this action precludes Ms Slattery from pursuing such a claim and I leave that question open and available to her to pursue if she so wishes.

JUSTICE IS YET TO BE DONE

[20] Finally, I realise that this judgment may not be satisfied and be of little comfort to Ms Slattery for her ordeal but that should not stop this Court from dispensing justice and upholding the rule of law. Perhaps the criminal justice system may be able to bring the Defendants and others involved in this case to justice so that a clear message is sent out that other like minded scoundrels will be brought to task.

ORDERS

[21] I therefore make the following orders:

1. The Defendants pay to the Plaintiff the sum of $20,500 for the diminution in value of the motor vehicles.
   
2. The Defendants pay to the Plaintiff the sum of $20,000 for general and aggravated damages.
   
3. The Defendants pay to the Plaintiff the sum of $9,720 as interest thereon
   
4. The Defendants pay to the Plaintiff the sum of $3,000 as costs within 21 days.
   
5. The Plaintiff is free to pursue whatever claim she may have against Aisea Natoga or any other person.
   

Sosefo Inoke
Judge