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Dynex Holdings Ltd v B W Holdings Ltd [2015] FJHC 376; Civil Action 316.2008 (25 May 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 316 of 2008

BETWEEN:

DYNEX HOLDINGS LIMITED
a limited liability company having its registered office at Suva, Fiji.
Plaintiff

AND:

B.W. HOLDINGS LTD
a limited liability company having its registered office at Suva in the Republic of Fiji.

Defendant

Appearance : Ms Narayan B., Counsel of Lateef & Lateef Lawyers, Barristers & Solicitors for the Plaintiff

Ms Naidu R., Counsel of Sherani & Co., Barristers & Solicitors for the Defendant

Date of Judgment : 25 May 2015

JUDGMENT

[1] The Writ of Summons was issued on 18 September 2008 and the Plaintiff sought the following Orders against the Defendant.

1.1 Specific performance of the Sale and Purchase Agreement.

1.2 Damages in addition to specific performance.

1.3 Interest on monies had and received.

1.4 Costs on indemnity basis.

[2] The background to the Plaintiff’s case:

2.1 The Plaintiff entered into a Sale and Purchase Agreement with the Defendant on 15 September 2003 to purchase 3 Lots of Lands (Lots 4, 5 and 9) situated at Vatuwaqa Lands Department Reference LD 7/6/59. Each lot is extent of 2000 square meters each.

2.2 The total sale price was agreed at $212,500.00 and $30,000.00 paid as deposit in terms of the said Agreement marked as Exhibit ‘7’. Defendant admitted the Agreement.

2.3 The Plaintiff has claimed total deposits paid to the Defendant until the institution of this action is $70,000.00 and there is the sum of $142,500.00 due to the Defendant. This was denied by the Defendant and stated the Plaintiff was in substantial breach of the Agreement dated 13 September 2007 by not paying the agreed installments of $7,500.00 monthly.

2.4 In Clause 1 of the Agreement marked as Exhibit ‘1’ states inter-alia:

“........................Vendor (the Defendant) will at the expense of the Vendor in all things proceeds with undue delay to take all steps to construct all necessary roads, culvert and drains and cause the necessary survey plan of the said lots to be prepared and deposited at the Titles Registry.........and since the Sale and Purchase Agreement until the time of instituting this proceedings the Defendant failed to fulfill its obligations.”

2.5 In terms of the Agreement marked Exhibit ‘7’ in the Agreed Bundle of Documents, the Defendant failed to give the possession of the said 3 Lots.

2.6 The Plaintiff stated the Defendant had used the Plaintiffs payment totaling to $70,000.00 with no benefit to the Plaintiff since 26 July 2005 and the Plaintiff claims interest on the said sum.

2.7 The Defendant was in breach of the terms of the Sale and Purchase Agreement, however, the Defendant had demanded further payment and unilaterally altered the Lots Plaintiff agreed to buy in the Agreement. The Plaintiff was also in the possession of Lot 6 since 2005.

[3] When the trial was taken up on 12 February 2013, the Defendant’s counsel stated that the Managing Director of the Defendant had passed away on 13/10/2011 and the counsel stated she is not ready for the trial. The Plaintiff’s counsel stated she is not objecting for an adjournment and further stated the Defendant had re-advertised the property on a different plan with different Lot No. 5. Certain orders were made by this court and the Defendant’s counsel was directed to tender an undertaking to the Plaintiff the Lots which are subject matter of this case will not be sold.

[4] By the summons filed on 15 April 2013, the Defendant sought an order for Leave to amend the Statement of Defence after the hearing on 8 May 2013. Orders were made by consent and Leave was granted to amend the Statement of Defence.

[5] Accordingly, the amended Statement of Defence and Counter Claim was filed on 21 May 2013 and the Plaintiff’s reply to Amended Defence and Counter Claim was filed on 5 June 2013. The Defendant filed reply to Defence to Counter Claim.

[6] By the amended Statement of Defence the Defendant stated inter-alia.

6.1 The Agreement dated 15 September 2003 was admitted and stated that the said agreement was based on a Scheme Plan drawn in 2001.

6.2 The Defendant stated the Plaintiff is in substantial breach of the Sales and Purchase Agreement dated 15 September 2003 and the Plaintiff was to pay the sum of $7,500.00 commencing from 15 October 2003 as per Clause 1 of the Agreement and the Plaintiff failed to honor the terms of the Agreement. It was further stated the Plaintiff was in occupation of one of the Defendant’s Lots since 2005.

6.3 The Defendant denied the averment in paragraph 8 of the Statement of Claim and further stated the Plaintiff had repudiated the Sales and Purchase Agreement as such the deposit paid is forfeited to the Defendant in accordance with the terms of the Agreement. The Defendant prays to dismiss the Plaintiff’s action with costs.

Counter Claim

The Defendant stated:

6.4 When the Defendant entered into the Agreement the Defendant was involved in subdivision work on a scheme plan of 2001. A final survey plan was approved on 7 September 2009.

6.5 The Defendant was issued with the leases from the Director of Lands which were registered on 14 October 2014.

6.6 The Plaintiff had been occupying and benefiting from the Defendant’s Lot 6 since 2005 without paying the full consideration sum of the purchase price to the Defendant.

6.7 The Defendant pleaded the Plaintiff was in the occupation of Lot 6 without any color of right and has been unjustly enriching itself from 2005 until to date and the Defendant prayed:

(a) For an Order that the Plaintiff to give the Defendant immediate vacant possession of the premises being part of Crown Lease No. 18702 being Lot 6 on SO5468 and or any other Lot that it is currently in occupation of.

(b) For an Order that the Plaintiff do pay mense profits to the Defendant for the period of their occupation of the premises.

(c) Costs and for such other Order this court may seem just.

[7] In replying to amended Statement of Defence and Counter Claim, the Plaintiff stated inter-alia-.

7.1 The Plaintiff had denied breach of contract and alleged that the Defendant was in breach of the contract.

7.2 The Plaintiff stated that this claim was filed after 5 years from the date of execution of the Sale and Purchase Agreement since Plaintiff failed to register the Plan at Titles Office.

7.3 It was stated the Defendant had repudiated the Sales and Purchase Agreement.

7.4 The Plaintiff stated the Director of Lands granted his consent on 16/10/2008 to this action.

7.5 Defence to Counter Claim

(a) The Sales and Purchase Agreement clearly specified the Lots to be given to the Plaintiff;

(b) The Defendant never informed the Plaintiff of any final survey plan approved in 2009 although the Defendant was obliged to do so. The survey plan dated 7.9.2009 was disclosed to the Plaintiff only in February 2013 during the course of this action.

7.6 The Defendant had never advised the Plaintiff of the issuance of the leases. The Plaintiff became aware of the issuance of the leases when the Managing Director of the Defendant Company advertised the Lots for sale in the newspapers in October 2011 which showed Lot 5 allocated to the Plaintiff was showed as sold.

7.7 The Plaintiff’s solicitor’s carried out a search at the Titles Office and found out leases had been registered on 14/11/2011. The Plaintiff took steps to protect its interest and lodged caveats on the 3 Lots in question. The Defendant had applied for the removal of the caveats in the Action No. HBC 116 of 2012 which is pending before the Master of the High Court.

7.8 The Plaintiff further stated:

7.8.1 Subsequent to the follow ups made by the Plaintiff with the Defendant with regard to the 3 Lots, the Plaintiff was given the possession of Lot No. 6.

7.9 The Plaintiff had agreed for the redefining of the Lots, however, the Defendant failed to give the possession for 2 years, although substantial monies were paid.

7.10 The Plaintiff denied that he benefitted from the Lot 6 since 2005 and he was not unjustly enriched. The Plaintiff had used the Lot 6 as a temporary storage shed and no substantial development could be effected since there is no title to the Plaintiff in this Lot. The Plaintiff alleged that the Defendant was benefitted and unjustly enriched by having the monies, without giving the 3 Lots on execution of the Sale and Purchase Agreement.

7.11 The Defendant’s allegation of that the Plaintiff’s allegation that it occupies the Lot 6 without any color of right is denied for the reasons set out above.

7.12 The Plaintiff further stated he made the deposits of $30,000.00 and thereafter $25,000.00. The Agreement was entered to into the possession of the Lots were to be given upon execution of the Agreement to give the possession of the land for the Plaintiff to utilize the land whilst making the installment payments. The Plaintiff had to stop the payments of the installments pending the possession and title being given to the Plaintiff pertaining to the Lots.

7.13 The Plaintiff was given possession of one Lot in 2005 and a further installment of $15,000.00 was paid.

7.14 The Defendant’s breach of contract resulted in the non-payment of the installments.

7.15 As such the Plaintiff stated the amended Statement of Claim and Counter Claim is frivolous and/or vexatious and abuse of the court process and same should be dismissed.

[8] The Defendant filed Reply to Defence to Counter Claim on 8 July 2013 and stated:

8.1 The Defendant was issued with stop work notice for over development in 2009.

8.2 The Plaintiff was well aware of the terms and conditions in the schedule of the Agreement which included having necessary survey plan of the Lots to be prepared and deposited at the Registrar of Titles.

8.3 The Plaintiff got the surveyor plan approved in 2009 and the Plaintiff had already filed this action on 16 September 2009.

8.4 Since the Plaintiff had repudiated the contract, the Defendant does not owe any duty and nor was it under obligation to inform that the leases being issued.

8.5 The Defendant admitted that Lot 5 was one of the initial Lots under the Agreement Lot members changed as a result of the sub-division and final survey plan and the same Lots were numbered as Lots 6, 9 and 11.

8.6 The Plaintiff was aware by 2008 that the Lots were issued with new numbers and that is the reason for the Plaintiff to sought the Director of Lands consent to place caveats on Lots 6, 9 and 11 in 2008 through its previous solicitors M/S Tikaram & Associates.

8.7 The stop work notice was finally uplifted in mid 2011 and thereafter the Defendant proceeded to having leases issued for the said Lots, because of the caveats placed on the said Lots further issues were arisen.

8.8 The Defendant stated the Plaintiff was benefitted and enriched itself since it took the possession of Lot 6 since 2005, where the Defendant was paying for all city rates, land rates and electricity and water supply.

8.9 By defaulting the payment of $7,500.00 as per Clause 1(ii) of the agreement there was a substantial breach of the Agreement and all monies paid by the Plaintiff became forfeited.

8.10 There was no deliberate delay by the Defendant.

8.11 Pleaded that the Plaintiff’s Defence to Counter Claim be dismissed.

[9] The following was agreed between the parties at the pre-trial conference.

9.1 Execution of the Sale and Purchase Agreement on 15 September 2003 where Lots 4, 5 and 9 to be sold the Plaintiff in the areas specified in the agreement.

9.2 The purchase price was $212,500.00 and the Plaintiff paid a deposit of $30,000.00 to the Defendant.

9.3 The Plaintiff has been in possession of Lot 6 since 2005 and the leases were registered on the Lots on 14 November 2011.

[10] Evidence, Analysis and Conclusions

This matter was taken up for trial on 13 August 2013 the following witnesses were testified:

1. Umendra Kumar – Director of the Plaintiff

2. Hitendra Pande - General Manager Operations of the Defendant.

10.1 Evidence of Umendra Kumar:

The witness is one of the Directors of the Plaintiff Company. He stated other Director is Praveen Prakash. Sales and Purchase Agreement dated 15/9/2003 in Tab 7 was tendered as Exhibit Tab 1 and stated that Purchase price was $212,500.00 and the deposit of $30,000.00 paid [Condition 1 (i) of the Agreement; Referred to clause 1(ii)] of the Agreement and stated the Defendant did not perform its obligation, in transferring the property. Uday Narayan the Director of the Plaintiff was handling this project and all negotiations were with him.

10.2 The witness made reference to page 3 of the Agreement and stated 1, 2 and 3 of the Schedule of Conditions were not performed by the Defendant. Up to December 2003 the Plaintiff had paid total of $55,000.00 to the Defendant. No letters were sent by the Defendant for the $7,500.00 installment. No letter of termination of the Agreement was issued to the Plaintiff. On 23 October 2004, (Tab 13) the Plaintiff’s solicitor Tikaram & Associates wrote to the Defendant’s solicitors (Sherani & Co) and informed that the Plaintiff was awaiting the issuing of the lease. No response given by the Defendant. There was a meeting held on 11 February 2011 with the Defendant Company (Uday Narayan and Hitendra Pande participated) attended by Praveen Prakash of the Plaintiff Company. Subsequent to the said meeting, the letter dated 15 February 2005 (Tab 14) was sent to the Defendant referring to Clause 2 and 3 of the Sale and Purchase Agreement which states “vacant possession of the land shall be given and taken upon execution of the Agreement”.

10.3 The witness stated the Plaintiff’s solicitors again wrote to the Defendant’s solicitors (copied to the Defendant) on 25 February 2005 (Tab 15) referring to the letter dated 23 October 2004 inquiring about the issuance of the status of the lease.

In reply to the said letter, the Defendant’s Solicitor Sherani & Co., sent the reply dated 28 February 2005 stating that the legal costs in respect of the Sale and Purchase Agreement was not paid by the Plaintiff (Tab 16), the witness stated. However, the witness stated the Plaintiff’s Solicitor at that time Tikaram Associates had already informed M/S Sherani & Co., that the Plaintiff was not liable for such payment since the Defendant had to settle the bill to Sherani & Company and tendered the letter by Tikaram & Associates dated 11 November 2003 which further stated they were awaiting for the Sale and Purchase Agreement.

10.4 The witness tendered the document Tab 10, the reply to the letter dated 11 November 2003 stated that the Plaintiff agreed to pay the Bill of Cost of the documents prepared by Sherani & Company (Tab 10 letter dated 13 November 2013).

10.5 The witness further tendered the Tab 8, letter dated 10 November 2003 addressed to Tikaram & Associates where Sherani & Company forwarded the copy of the Sale and Purchase Agreement and the Bill of Costs (Tab 8).

10.6 The witness stated in addition to the letter dated 11 December 2003, (Tab 11) Sherani & Company sent a letter dated 22 March 2004 to Tikaram & Associates advising them to request the Plaintiff to pay the Bill of Cost, (Tab 12) Tikaram and Associates replied by the letter dated 7 March 2005 requesting that if it is the only account to be settled with Sherani & Co. to provide details that:

(1) Evidence of that sub-division is completed and relevant plans being lodged and approved for issuance of sub-leases; and

(2) Enquiring whether separate leases has been made to the Lands Department enabling the Plaintiff to apply and receive separate leases for Lots 4, 5 and 9 on LD Ref 76/59 and evidence of the application.

Tab 17 is produced as an Exhibit

10.7 There was a notation made by Sherani & Co. on Tab 17 which was read out by the witness (Tab 18).

“Anil

We do not trust your client. Please arrangement payment first and then we will respond to all questions.

Signed illegibility.”

The witness stated the said notation was disrespectful.

10.8 The witness stated the said payment was tendered to Sherani & Co. which was confirmed by Tikaram & Associates by their facsimile dated 31/8/2005 and it was informed to provide the information called for by Tab 17.

10.9 After the payment was made, there was no response by the Defendant’s Solicitor the witness stated. In the circumstance the witness referring to letter dated 20 July 2005, Tab 6 of the supplementary bundle of documents stated the Plaintiff redefined by Wood and Jepson Consultant at a cost of $700 (marked as P1). It is my conclusion on the evidence by the Plaintiff’s witness there was a substantial breach of the Agreement by the Defendant which resulted Plaintiff did not pay the installment of $7,500.00 per month.

10.10 The invoice by the surveyor was marked as P2. The witness also produced Exhibit Tab 20 in ABD another survey plan dated 28 November 2005. The witness stated they managed to secure one Lot but in the other 2 Lots fence was removed since the Defendant was going for a new subdivision. The Plaintiff produced P3; P4; P5 and P6in the supplementary bundle of documents, the Bank Statements, cheque counter foils and receipts amount to $10,000.00 for the land to the Trust Account of Sherani & Company. The Plaintiff has written the email dated 14/5/2013 the records of cheques prior to 2006 are not available. This witness is a credible witness and failed to challenge the documents by the Defence and under cross-examination it was suggested that the certain payments were routed through sister company Protech not by the Plaintiff company. However, if the Defendant challenges this position, it would have led evidence to that effect. In absence of evidence, I conclude the payment by the Plaintiff was proven on balance of probabilities. Considering all the evidence before me, I conclude the total payment made by the Plaintiff to the Defendant Company is $70,000.00.

10.11 The Plaintiff admitted that they have the possession of the Lot No. 6 and there is no transfer of the title. For 5 years no progress was made to transfer the property and this action was filed. As I concluded in the above paragraph, the Defendant’s evidence due to stoppage of work by the Director of Lands that the delay was occurred cannot be accepted. In such situation the Defendant would have given the possession of the other two Lots until such time approval was obtained. This is an industrial sub-division and as such the Plaintiff had purchased the Lots for business purposes and I conclude the Defendant’s failure had affected the Plaintiff’s business.

10.12 Referring to Exhibit Tab 21 of the ABD, the caveat lodged by the Plaintiff on the property was rejected by the Registrar of Title and referring to Exhibit Tab 22 witness produced the consent to proceed with legal action dated 16/10/2008, and I accept this document and conclude this action is in proper order.

10.13 Referring to Exhibit P9 of the Supplementary Bundle of Documents, the Plaintiff stated there was an advertisement dated 22 October 2011 published by the Defendant on the Fiji Times calling for offers for the Lots in which the Plaintiff’s Lots were also included. At this point the Plaintiff advised its lawyers to register a caveat to safeguard their interest. Referring to Exhibit Tab 7, the witness stated under Clause 6 it was aware the Sale was subject to the consent of the Director of Lands which was given on 30 July 2008 (Exhibit Tab 8). There was a delay from 2003 to 2011, 8 years by the Defendant to transfer the land or terminate the agreement and refund the monies, this never happened and the Defendant had incurred substantial losses to the Plaintiff by unjustifiable delay of the transfer of the Lots and thereby breached the terms of the agreement.

10.14 The letter dated 23 October 2004 (Exhibit Tab 13), the Plaintiff’s Lawyers informed the Defendant’s lawyers that possession was to be given on the land to construct temporary structure to store the goods. Only Lot 6 was given to the Plaintiff. The Defendant did not reply to the said letter. The Plaintiff stated the Lot Nos. are now changed and they are willing to accept Lot 6, 9 and 11 with the same extent or any other Lots in the same extent. Mr Uday Narayan Director who was dealing with the land passed away in 2011.

10.15 During cross-examination the witness stated Exhibit Tab 1 of the ABD Sketch Plan was shown (LD7/6/59) and they were aware this was subject to change, Uday Narayan had told them. But he assured the area won’t be changed when the caveat was tendered the Plaintiff presumed the Lots were changed to Lot 6, 9 and 11. The Plaintiff’s witness stated $70,000 was paid and no notification was given to them for the payment of $7,500 monthly. There was no material challenge to the evidence of the witness and I accept his evidence.

[11] Defendant’s Evidence

11.1 Hitendra Pande gave evidence for the Defendant. He stated he is the General Manager of the Defendant Company who joined in 2005. He stated that he participated in some discussions held by late Narayan with the Plaintiff. He explained that the payments were made Exhibit D1 - $30,000.00 which states payment for Lots 4, 5 and 9 paid by Dynex Holdings. D2 – Sherani & Co. Receipt No. 45721 for $10,000.00. I find the payment by Fortech Construction Ltd was to the credit of the Account of BW Holdings, it specifically states “deposits for Viria Road Property for BW Holdings” which clearly shows Fortech Sister Company of the Plaintiff made some payments on behalf of the Plaintiff. The attempt by the Defendant to dispute the Fortech was not the buyer and payment should have come from BW Holdings fails by its own evidence. D3 was also a payment of $15,000.00 for the property paid by Fortech on behalf of the Plaintiff for Viria Road property.

11.2 The witness stated that Narayan (deceased) consented to mobilize the Lot for the Plaintiff and he cannot remember whether it was for all Lots or one Lot. Plans were later changed. The Plaintiff’s Directors went to the site with Narayan and identified the Lots. These Lots were under Stage 1 of the project. The Defendant acquired a Crown Lease before he joined the Defendant. The 3 Lots offered was foreshore land. To finish one stage it had taken over 9 years he stated. The work was stopped by the Lands Department for the reasons over reclaiming, finance, weather conditions and soil scarcity. Tendering document D4, the Defendant stated the Directors negotiated about stoppage of the work.

11.3 The witness stated the Plaintiff’s sister company engaged the services to do some earth work and there is $80,000.00 owing to them. This was not substantiated by any document and I am not considering this part of the evidence in this case, for the determination.

11.4 The witness further stated there was a shed constructed by the Plaintiff and some people are living there. It has electricity and water. D8 was marked Death Certificate of Narayan. Out of the 15 Lots in Plan No. 7/5/59, only 4 was sold (D9).

11.5 Answering in cross-examination, the Defendant’s witness stated he started in 2005 to work with the Defendant. Mr Narayan was handling the project by himself. He admitted he never had any dealings with Fortech Holdings. The agreement was entered with the Plaintiff after reclaiming was done. He admitted the 3 Lots in D4 were not reclaimed land and it was outside the overdeveloped area. He is not aware (D10) the copy of the approved lease was provided to the Plaintiff. I conclude, if the intended land to be purchased by the Plaintiff was not in the over developed area, there was no justifiable reason for the Defendant not to give the possession of the other two Lots to the Plaintiff.

[12] Having considered the evidence and the documents tendered in evidence, my conclusions are:

1. The Sale and Purchase Agreement dated 15 September 2003 is not terminated and the Defendant had substantially defaulted the terms of the Agreement.

2. The Agreement was signed by the parties for the purchase of Lots 4, 5 and 9 Viria Road, Vatuwaqa, LD Ref. No. 7/6/59 and it was based on scheme plan drawn in 2001, and the Plaintiff was aware Lot Nos. will be changed, however, the extent and the location will not be changed.

3. The Plaintiff proved in balance of probabilities $70,000.00 was paid out of the purchase price of $212,500.00 consideration for the transfer of the Lots. As I concluded the default by the Plaintiff was only on the payment of monthly installment of $7,500.00 since October 2003. However, this default cannot be taken into consideration since the substantive default was by the Defendant and the agreement was not terminated at any stage. The Defendant had not tendered any document to prove it had terminated Sales and Purchase Agreement. The argument by the Defendant that the agreement did not specify a date for compliance and quoted the Clause 6 on page 2 stated that:

“6. This sale is subject to the consent of the Director of Lands”.

This condition was known and admitted by the Plaintiff. The question arises why the Director of Lands has not given the consent. If the Defendant has performed the development of the land in terms of the conditions imposed by the Director of Lands, stoppage of work would not have occurred. It was the duty and responsibility of the Defendant to get the approval. Although, agreement does not specify a date the Defendant cannot keep the agreement open indefinitely. It should be a reasonable period of time. On page 4 of the agreement under Schedule of Conditions Clause 2 states:

“2. Vacant possession of land shall be given and taken upon execution of the agreement”.

This clearly shows there was understanding between the parties until the consent being obtained that the Plaintiff was to have the possession of 3 Lots which was defaulted by the Defendant. The Defendant’s position was that the Plaintiff defaulted the payment of the installment of $7,500.00, however, it was provided in Clause 12 of the agreement if such default occurs the Defendant had the right conferred upon him to exercise its options:

1. Demand the full payment of the balance money;

2. Demand the installment; or

3. To rescind the agreement.

If 1, and 2 breaches are not remedial within 14 days after issuing a notice of default, Defendant would have rescinded the agreement. As such the Plaintiff’s submission that Defendant’s failure amounts to waiver of the breach, I accept. I have already concluded on this issue that the substantive default/breach was by the Defendant in the preceding paragraphs.

4. I also agree with the Plaintiff’s submissions and conclude that the Defendant failed and defaulted Clause 3 on page 3 of the agreement.

5. Considering the evidence before me, I am satisfied that the Defendant failed to fulfill its obligation to the Plaintiff from the date of the execution of the agreement by not giving the possession of the 3 Lots.

I further agree with the submissions of the Plaintiff referring to Clause 11 which states that “time shall be of the essence of this agreement” and the Defendants failed to carry out the works and to have the survey plans deposited/registered at the Lands Registry is was proved on balance of probabilities. I agree there was no “all reasonable speed”.

The Plaintiff cited the case of Peter Gervaise Joseph Eyre vs. Estate Management Services Ltd and Others [1997] FJHC 205 Pathik J. stated:

“On the facts of this case, it cannot be said that the Defendant proceeded with the works with “reasonable speed” when in fact it did nothing to fulfill the terms of the agreements. No doubt the agreements are silent as to the time for performance but in such a case, the law implies that it should be done within a reasonable time”.

Applying this principle to this case, it is not only the Defendant who did not act within a reasonable period of time but it was in default of the agreement from the date of the execution and the Defendant is guilty of the default.

With regard to the reasonable period of time, Pathik J. cited the case authority of Aberfoyle Plantations Ltd vs. Khaw Biang Cheng (Privy Council 1960 A.C. 115 at 124) which stated:

“..............(ii) where a conditional contract of sale fixes no date for completions of the sale, then the condition must be fulfilled within a reasonable period of time........”.

In this matter the agreement was executed in 2003 and to date the Defendant failed to fulfill its obligations and the said principles laid down in the case authorities should be applied in favour of the Plaintiff.

6. I have already analyzed the Defendant’s witness’s evidence and he failed to justify the delay of 8 years up to 2011 failing to transfer the titles to the Lots of Stage 1 which includes the allocated Lots to the Plaintiff.

7. It was an issue raised during the cross examination by the Defendant’s counsel why Lots 4, 5 and 9 were referred in the caveat as Lots 6, 9 and 11, and the explanation given by him was the Lots were redefined by the Wood & Jepsen Consultant’s Report dated 28 November 2005 (Exhibit Tab 20). The Plaintiff’s position at the time of execution of the Sale and Purchase Agreement he was aware that the Lot Nos. will change and subject to the identified location and the extent is the same. I accept the evidence of the Plaintiff’s witness, and placing of the caveat on Lots 6, 9 and 11.

8. There is no reason to allow the Defendant to forfeit the deposit for the reason the substantial breach of the agreement was by the Defendant. I also specifically state that late Uday Narayan gave the possession of the Lot 6 and there is no breach of the agreement by the Plaintiff since it is abundantly clear all 3 Lots were to be occupied by the Plaintiff until the titles being transferred. Further there was no termination of the agreement by the Defendant on non-payment of the installment. What the court can infer is that the Plaintiff was permitted to occupy the land in terms of the agreement and the Defendant was stopped from forfeiture of the deposit.

9. I also considered the Defendant’s claim to forfeit the deposit of $70,000.00 made by the Plaintiff since it breached the agreement. I have already concluded that the substantial default was by the Defendant and the forfeiture of the deposit does not arise in this instance.

10. It was the contention of both witnesses that Uday Narayan deceased had asked the Plaintiff to occupy the 3 Lots allocated but the Plaintiff was to take over the possession and he was given only the Lot 6. Furthermore, it was in the agreement that on execution the possession of the 3 Lots is to be given the Plaintiff which was breached by the Defendant. The claim of the Defendant that Lot 6 was occupied without a right fails and the Defendant fails. There was no unjust enrichment on the part of the Plaintiff since One Third of the purchase price was paid and without title being transferred. The Plaintiff was not in a position to fully utilize the land as per the agreement.

11. I also have considered the following statement made in Fiji case of iTaukei Land Trust Board vs. Hughes [2014] FJCA 191 ABU 0053 2012 (unreported decided on 5 December 2014) Almeida J. stated:

“Common Law vs. Equity

102. The cleavage between the Common Law and Equity in the 19th century England is a known historical fact.

103. Over that century how that had influenced Commonwealth and the other jurisdictions is also another well known fact.

104. That, 'equity' developed in order to mitigate the rigours of the common law is yet another historical fact. The Chancery division in the courts system in England, the law relating to Trusts, Concepts such as unjust enrichment and payment of compensation for improvements effected on a land by a possessor are all results of that development to name a few. The doctrines of promissory estoppel and proprietary estoppel had come as another addition where conduct of parties in a relationship had been the focus, an addition about which, however, Lord Denning in the famous decision in Central London Property Trust Ltd v. High Trees House Ltd [1947] 1KB 130 had had certain reservations for fear of it being stretched too far, lest it should be endangered. In the subsequent decision of Combe v. Combe, [1951] KB 215, those reservations had developed into a serious concern in His Lordship's mind, in the context of the doctrine of consideration in contractual relationships where His Lordship had stated that;

''The doctrine of consideration is too firmly fixed to be overthrown by a side-wind.''

105. Nevertheless, despite those reservations and concerns, Lord Denning in Evenden v Guildford Football Club [1975] 1 QB 917 rejecting the argument that, for promissory estoppels to apply, parties must be contractually bound to one another stated thus:

''...Promissory estoppel ... applies whenever a representation is made, whether of fact or law, present or future, which is intended to be binding, intended to induce a person to act upon it and he does act upon it.''

In the present case, it is evident that in absence of rescinding of the agreement, the Plaintiff was induced to act upon the agreement, the concept of equity to be decided in favour of the Plaintiff.

12. In the same case, Almeida J. further stated:

Proprietary Estoppel

107. There remains another aspect to be considered. That is, the aspect of 'proprietary estoppel', which used to be called 'estoppel by acquiescence' (see: Lord Denning, The Discipline of Law, Butterworths, New Delhi, Aditya Books, 1993 at page 216).

108. We have already found that, the Appellant had acquiesced in the 1st Respondent building a house and continuing to reside in it. Accordingly the conditions necessary for this estoppel to come into operation are also satisfied.

Combining the Estoppels

109. On the principle of promissory estoppel we have proceeded on the basis that, the Appellant had induced the 1st Respondent to build a residential house on the land in question and the 1st Respondent had done just that.

110. On the principle of proprietary estoppel we have held that, in the construction of the residential house the 1st Respondent built and thereafter in his continued occupation of the same from June, 2004 to July 2006 when a notice to vacate had been suddenly and arbitrarily served on him (for unacceptable reasons, as pointed out earlier) constitutes estoppel by acquiescence.''

111. It is to be noted that both ''promissory estoppel'' and ''proprietary estoppel'' have been derived from the same source – namely – the interposition of equity to mitigate the strict rules of law.

112. Sir Alexandar Turner on ''Estoppel by Representation'' has opined that, the two doctrines must be kept separate and distinct. (vide: Turner, Estoppel by Representation 1977, 3rd Edition.p.307).

113. But, Lord Denning in Moorgate Ltd v. Twitchings (976) 1 QB 225, had been in favour of combining them into one.

114. His Lordship in that case opined thus:-

''Estoppel is not a rule of evidence. It is not a cause of action. It is a principle of justice and of equity. It comes to this: when a man, by his words or conduct (the emphasis is mine) he will not be allowed to go back on it when it would be unjust or inequitable for him to do so.''

I repeat the above paragraphs and conclude that the possession of the Lot 6 was the Plaintiff's right conferred upon him by the agreement and the Defendant cannot go back on the terms of the agreement to claim the Plaintiff was not entitled for the possession and the counter claim fails. No action being taken by the Defendant during the possession and further the possession was handed by the Defendant himself and proprietary estoppel conditions are satisfied.

[13] The conclusions made above clearly shows the Defendant had failed to perform its obligations under the terms of the Agreement. The Plaintiff did not pay the installments due to the Defendants breach of not giving the possession of the 3 Lots agreed in the agreement. The Defendant is also guilty of unreasonable delay. The Defendant did not justified the delay and I have already concluded the agreement is not repudiated or rescinded. Even the possession of Lot 6 was given to the Defendant only in 2005 after 2 years of the execution of the agreement. I conclude the Plaintiff has acquired equitable interest by paying $70,000.00 and became the owner of the land in equity. Legal estate has to be given to the Plaintiff. As submitted by the Plaintiff's counsel, I cite the case of Legion vs. Hatley [1983] HCA 11; (1993) 152 CLR 406 it was stated:

"In this court it has been aid that the purchaser's equitable interest under a contract of sale is commensurate only with her ability to obtain specific performance (Brown vs. Heffer (1967) HCA 40; 116 CLR 344 at p. 349)"

The facts of this case warrant specific performance and the Plaintiff had shown it is ready with the balance payment of $142,500.00. The Defendant had not even informed the Plaintiff the leases were issued in 2011. The Plaintiff established it was continuously taking steps to purchase the land and kept the contract on foot.

Accordingly, I determine the Plaintiff is entitled for the specific performance of the Sale and Purchase Agreement dated 15 September 2003 by making the balance payment of $142,500.00.

[14] I considered the agreement and the evidence led before me and the conclusions made in the preceding paragraphs to determine on the issue of whether the Plaintiff is entitled to interest on the deposit made. As admitted by the Defendant one third of the purchase price was paid by the Plaintiff and they were in possession of Lot 6. Although the Defendant was in substantive breach of the terms, the Plaintiff was using the Lot 6 since 2005, 9 years to date. The Plaintiff claims interest on the payment of $70,000.00. I have considered the case authorities and state that there was a benefit accrued to the Plaintiff by enjoying the possession of Lot 6 since 2005 and by concluding that specific performance of the agreement in favour of the Plaintiff, he will be benefitted from the escalation of the price of the 3 Lots since 2003. I determine the Plaintiff is not entitled for damages.

However, it was established the possession of Lot 6 was handed to the Plaintiff in 2005. The Sale and Purchase Agreement stipulated the possession of all 3 Lots to be given on 15 September 2003 and the Defendant failed to do so and given the possession of the Lot 6 in 2005. As such the Defendant had the benefit of having the payment of $55,000 since November 2003 (Although first payment of $30,000.00 was made in September 2003 and the second payment was made in October 2003 for calculation purpose, I take the interest to be paid from 2003). The balance $15,000.00 made on 7 July 2005 and I conclude the Plaintiff is not entitled for the interest on the said $15,000.00 since the payment of $15,000.00 was made in 2005. Accordingly, I determine that the Plaintiff is entitled for interest at the rate of 4.5% per annum from 28 November 2003 on $55,000.00 until the Plaintiff came into possession in 2005, and in absence of evidence as to the date of the possession, I take the interest to be paid up to 26 July 2005 (last payment of $15,000.00 was paid on this day).

[15] I deny the submissions made by the Plaintiff with regard to indemnity cost and determined to award summarily assessed cost.

[16] I wish to place on record the directions were made by this court with regard to filing of the submissions by the parties on conclusion of the trial on 13 August 2013 i.e. "written submissions to be filed within 28 days simultaneously". The Defendant's solicitor/counsel had not filed the submissions within 28 days and delayed filing submissions over one year.

[17] On Friday 22 May 2015, after the court registry had informed Sherani & Company that the Judgment will be delivered on 25 May 2015, Sherani & Company had written to the registry seeking to file the submissions. The solicitors had not taken due diligence on this matter and failed and neglected to file written submissions as such the request was not justified thus declined.

[18] I make the following Orders:

1. Order granted for specific performance of the agreement dated 15 September 2003 and transfer the Titles of Lot 4, Lot 5 and Lot 9 in Plan No. LD Ref 7/6/59 to the Plaintiff totaling to 6,000 square meters.

2. Since the parties agreed and admitted at the trial the said agreement provided the Lot Nos. will be changed as such the Defendant is ordered to transfer 3 Lots including Lot 6 presently occupied by the Plaintiff and two other Lots in extent of 2000 sq meters each without change of its location as agreed in the Sale and Purchase Agreement within 30days of this Judgment.

3. The Defendant is ordered to pay interest calculated at the rate of 4.5% per annum on $55,000.00 from 28 November 2003 until the date of possession by the Plaintiff i.e. 26 July 2005 and the said payment should be made to the Plaintiff within 30 days of this Judgment.

4. The Defendant's Counter Claim dismissed.

5. The Defendant is ordered to pay $5,000.00 to the Plaintiff, cost summarily assessed within 30 days of this Judgment.

Delivered at Suva this 25th Day of May 2015.

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

C. KOTIGALAGE

JUDGE