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Deo v Nasinu Town Council [2012] FJHC 1402; HBC431.2008 (31 October 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 431 of 2008

BETWEEN:

NDAR DEO
of Lot 86 Stage 4, Narere, Nasinu in Fiji, Businessman.
PLAINTIFF

AND:

NASINU TOWN COUNCIL
a duly incorporated body under the Local Government Act Cap 125, of Kanave Road, Valelevu, Nasinu in Fiji.
DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSEL : Ms S. Narayan for the Plaintiff

Date of Hearing : 1st June, 2012
Date of Decision : 31st October, 2012

DECISION

1. INTRODUCTION
   

1. The Plaintiff has filed this action in 2008 seeking damages against the local authority for its failure to timely approve the building plan. The default judgment was entered and the summons for assessment of damages was served to the defendant. The Plaintiff has submitted the building plan in 2005 but the approval was granted only in December, 2008. The claim is for the alleged negligence. The Plaintiff failed to submit evidence of economic loss to the Plaintiff due to the inordinate delay of more than 3 years to approve the addition to a commercial building.
   

2. ANALYSIS
   

2. The Plaintiff who is a businessman built a commercial building and after leasing it to a super market thought of extending the building further and submitted the proposed plan for the alteration of the said building for additional space. The said building plan was lodged for the approval from the Defendant on May, 2005 and the Defendant has written to the Plaintiff by its letter dated 18th July, 2008 and stated as follows :
   

'This refers to your above building application in respect of extension to an existing commercial building on Lot 40 S) 417 at Narere, Nasinu.

Please have it verified as to whether Lot 41 on SO 417 which is the Car Parking Space is the Parking Space for Commercial Lot 40'

3. According to the said letter of the Defendant the issue was not the proposed alteration to the building but the adjoining car park which the Plaintiff never sought any improvements or additions in the said plan. The said car part was developed by the Plaintiff earlier and when the building approval was granted to the commercial building which he sought extension it was included in the plan and was accordingly approved as the car park for the said commercial building and cannot be an issue when an extension to the said building was sought as the said alterations did not extend to the said lot.
   
4. In any event the query raised by the Defendant regarding the car park was resolved by the letter marked 'F' dated 14th September, 2005 written by the Housing Authority which confirmed the said lot 41 was designated public parking space for lot 40, which was sold to the Plaintiff where the alteration to the commercial building was sought.
   
5. The only concern for the Housing Authority was whether the said parking lot would be closed for the public by the Plaintiff. This was not an issue relating to the alteration sought by the Plaintiff and the alteration should have been approved, since there was no other reason for inordinate delay revealed.
   
6. The Plaintiff has written and informed the inordinate delay in the approval of the said building plan for extension of the commercial building on 18th October, 2008 and this letter is marked as 'G'. The evidence of the Plaintiff is that he personally inquired about the non approval of the building plan since the lodgment of the same, without any success.
   
7. The approval was subsequently granted in December, 2008 without any reason for the inordinate delay, after the Plaintiff informed the Defendant that he would take legal action if the approval was further delayed.
   
8. The Plaintiff who gave evidence on 1st June, 2012 informed to the court that he had not completed the addition, which got approved in the end of 2008. More than four years have lapsed since the approval, but the Plaintiff has not completed the approved additions to the commercial building due to the slump of the demand for space in the commercial buildings. The Plaintiff stated that he was unable to rent even the commercial space currently available in the building and the reason for delaying the addition is understandable. The Plaintiff being a businessman did not see a reason to make new addition to a building which is not fully occupied, when the approval was subsequently granted in 2008 and the same market condition seemed to prevail even 2012, from the evidence of the Plaintiff.
   
9. I do not have any evidence as to the market condition that prevailed in 2005 and probable date of completion of the work if the approval was timely granted. The mere delay of approval of the alteration of the building plan would not incur any economic loss to the Plaintiff. The Plaintiff has to prove the economic loss to him for the period of delay. Though the building plan for addition to the building was submitted the Defendant has requested for additional information regarding the car park, and though this information regarding the car park was obtained by the Plaintiff in September, 2005 I do not have an exact date when this information was supplied to the Defendant.
   
10. So, the inordinate delay is not form the lodgment of the Plan, but form the time the said information that was requested by the Defendant was supplied to the Defendant and any economic loss would be from the probable date of completion of the work. I have not been supplied with evidence as to when the said information was supplied to the Defendant. I can assume that such information would have submitted to the Defendant on or around September, 2005. I have not been informed of a probable date of completion of the work, and I cannot assume such date of completion without evidence.
    
11. The inordinate delay by itself will not guarantee damages to the Plaintiff. He has to prove that actual economic loss incurred to him. The Plaintiff in his evidence admitted that he had to obtain commercial loan for the said addition and due to the delay the loan was not utilized. No actual figure of loss from that was forthcoming.
    
12. Though the Plaintiff's building plan was delayed for more than three years he is not entitled to the rental income of the proposed additional space since he had admitted that at the moment he could not even rent the available space. I do not have evidence when the slump of the commercial space market in Fiji or in the said area happened, to determine the economic loss to the Plaintiff. It is clear that if the Plaintiff had completed the additional space he could not have rented the additional space now since his building is not fully occupied at the moment. In order to determine the damages the Plaintiff needs to prove a time period and also the estimated rent for the time period. No time period can be deducible as the Plaintiff has not elicited evidence as to probable time of completion of the additional space. The Plaintiff has also failed to prove when the commercial space market in the area slumped. He cannot claim damages in 2012 for proposed extra space as the available space in the building is still vacant. The Plaintiff has failed to prove economic loss due the inordinate delay of the building plan. The Plaintiff has obtained a judgment by default and the summons for assessment of damages is struck off. No cost.
    

100. FINAL ORDERS
     

1. Summons for assessment of damages is dismissed.
2. No Cost.
   

Dated at Suva this 31st day of October, 2012.

.................................................
Master Deepthi Amaratunga
High Court, Suva