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Roseleen v Autoworld Trading (Fiji) Ltd [2014] FJHC 873; HBA13.2012 (28 November 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Appeal Action No. HBA 13 of 2012

BETWEEN:

IREEN ROSELEEN
of 6 Wilkinson Street, Flagstaff, Suva, Accountant

Appellant

AND :

AUTOWORLD TRADING (FIJI) LTD
a limited liability company having its registered office at Lot 21 Viria Road, Vatuwaqa.

Respondent

Appearance : Mr N Lajendra of Lajendra Law for Appellant

Mr S Chandra of M C Lawyers for Respondent

Date of Judgment: 28th November 2014

JUDGMENT

[1] This is an Appeal made against the order of the Learned Chief Magistrate delivered on 25 July 2011 on the grounds:

(i) That the Learned Magistrate erred in law and fact in not holding that the Bill of Sale was unenforceable as the registration had become void.

(ii) That the Learned Magistrate erred in law and fact in not holding that the action was statute barred.

[2] On the above 2 grounds, the Appellant's counsel made the submissions. The Appellant's main argument was the Bill of Sale was unenforceable. I agree with the Appellant that the Statement of Claim filed in the Magistrate's court based on the Bill of Sale (pages 42-54) registered on 30 July 2001.

I have noted the following discrepancies of the Bill of Sale which was not in compliance with the Bill of Sale Act Chap. 225. Section 7 of the Bill of Sale Act Cap 225 states:

"7. Every Bill of Sale to which this Act applies shall be duly attested, and shall be registered, within seven days after the making or giving thereof if made or given in Suva, or within twenty one days if made or given elsewhere than the City of Suva, and shall set forth the consideration for which such Bill of Sale was given; otherwise such Bill of Sale shall be deemed fraudulent and void;"

The Bill of Sale shall be registered to give legal effect. It is an imperative provision. Non registration will have serious repercussions which shall be deemed fraudulent and void. Section 14 of the Act states:

"14. The registration of a Bill of Sale must be renewed, or further renewed, as the case may be, at least once every five years, and if a period of five years elapse without such renewal or further renewal, the registration become void."

[3] In this matter, Bill of Sale was registered on 30 July 2001 (page 42 of the copy record) in a sum of $5000.00. The validity of the Bill of Sale expired on 29 July 2006. No evidence was led by the Plaintiff to establish that the Bill of Sale was renewed. Original case record bears the date stamp to the effect that the case was filed on 29 March 2010. The correct date of filing and issuing of the Summons is 29 March 2010 since the Affidavit of Service of Lepanoni Waqa states the Writ of Summons was dated 29 March 2010. The case was filed after 3 years and 5 months from the date of the expiry of the Bill of Sale as provided in Section 14. As such the Plaintiff Respondent had relied on a void document which was unenforceable.

[4] I draw my attention to the Ruling of the Learned Chief Magistrate on page 28 of the Copy Record. It was stated:

"The claim is simply based on a Bill of Sale freely entered in good faith by both parties. The document is signed by the Defendant acknowledging that she is willing to be bound by the conditions of the security."

It is evident that the Learned Chief Magistrate had based his decision on the Bill of Sale executed by the parties. However, he had failed to consider the validity and enforceability of the Bill of Sale and he had erred in law and misdirected himself and the Judgment in favour of the Plaintiff/Respondent cannot stand. The Appellant succeeds in his appeal.

[5] Accordingly, I make the following Orders:

1) The Appeal is allowed.

2) The Plaintiff is ordered to pay $1,000.00 cost summarily assessed to the Defendant.

Delivered at Suva this 28th Day of November, 2014.

.....................................

C. KOTIGALAGE

JUDGE