IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 29 of 2012

BETWEEN	: 	VANUALEVU HARDWARE (FIJI) LIMITED a limited liability company having its registered office at 15 Jaduram Street, Labasa.
PLAINTIFF

AND	:	LABASA TOWN COUNCIL a town council duly established under the Local Government Act.
DEFENDANT

COUNSEL	:		HaniffTuitoga for the Plaintiff
Samusamuvodre Sharma Law for the Defendant

DECISION	:	11 May 2017

DECISION
Introduction
1.	The Court’s task on this occasion is to assess damages pursuant to a default judgment entered by the Plaintiff against the Defendant on account of the Defendant’s failure to file a defence within the time prescribed by the High Court Rules 1988, and pursuant to Kumar J’s Order of 10 February 2016.

2.	On 17 March 1992, the Plaintiff Company paid the Defendant Town Council $12,000 for ten car parking spaces along Jaduram Street in Labasa.  The Town Council did not provide the car parking spaces and on 17 May 2012, the Plaintiff filed a writ of summons and statement of claim claiming for specific performance of contract, and damages for breach of contract.  

3.	In its statement of claim, the Plaintiff seeks the following reliefs:
(i)	Specific performance of the contract
(ii)	Special damages
(iii)	General damages for breach of contract
(iv)	Interest pursuant to the Law Reform (Miscellaneous Provisions) (Death and Interest) Act, Cap. 71
(v)	Costs on an indemnity basis
(vi)	Alternatively, a refund of the FJ$12,000 with interest pursuant to the Law Reform (Miscellaneous Provisions) (Death and Interest) Act, Cap. 71 paid to the Defendant by the Plaintiff.
(vii)	Such further and other relief as the Honourable Court may deem just and/or expedient.

General principles
4.	The Oxford Dictionary of Law, 5th Edition, defines damages as “a sum of money awarded by a court as compensation for a tort or breach of contract.” As a remedy, it is available to a plaintiff who has suffered injury or harm from another’s tortuous act or breach of contract.  The purpose of damages is reflected in the maxim restitutio ad integrum, which simply means restoring the injured party to the condition it would have been in had the tort or breach of contract not occurred.

5.	In respect of the measure of damages for breach of contract, Asquith L.J. in Victoria Laundry (Windsor) Ltd. v Newman Industries Ltd. [1949] 1 All ER 997 said at page 1002:
What propositions applicable to the present case emerge from the authorities as a whole including those analysed above? We think they include the following (1) It is well settled that the governing purpose of damages is to put the party whose rights have been violated in the same position, so far as money can do so, as if his rights had been observed: Wertheim v Chicoutimi Pulp Co. [1911] AC 301. This purpose, if relentlessly pursued, would provide him with a complete indemnity for all loss de facto resulting from a particular breach, however improbable, however unpredictable. This, in contract at least, is recognised as too harsh a rule. Hence, (2): In cases of breach of contract the aggrieved party is only entitled to recover such part of the loss actually resulting as was at the time of the contract reasonably foreseeable as liable to result from the breach. (3) What was at that time reasonably foreseeable depends on the knowledge then possessed by the parties, or, at all events, by the party who later commits the breach.

6.	In this case, the Plaintiff claims, inter alia, special damages and general damages for breach of contract.  In All Engineering Limited v Pacific Parasail LimitedCivil Appeal No: ABU 0045 of 2010 at [17], the Court of Appeal quoted Salmond on the distinction between general and special damages as follows:

Salmond (Salmond&Heuston on Law of Torts twentieth edition at 517) states that “general damages is that kind of damages which the law presumes to follow from the wrong complained of and which, therefore, need not be expressly set out in the plaintiff’s pleadings. Special damages on the other hand, is damage of such a kind that it will not be presumed by the law and it must therefore be expressly alleged in those pleadings so that the defendant may have due notice of the nature of the claim. Thus in the case of a collision between two ships, due to the negligence of the defendant, the plaintiff will be able to recover general damages for the loss of the use of his ship during the repairs (Carslogie Steam Ship Co. Vs. Royal Norwegian Government (1952) AC 292 even if it be not used for trading or profit (The Hebridean Coast (1961) AC 545).

The evidence
7.	Mr. Paula Rakai, Manager of the Labasa Branch of the Fiji Development Bank (the FDB) gave evidence for the Plaintiff Company, saying that the Company had a number of loans with the FDB.  The first was on 01 November 1991 for a term of 10 years, for the sum of $533,075, at an interest rate of 13.5% p.a.  Another loan was taken out on 30 July 1993, for a term of 15 years at an interest rate of 11.5% p.a.  A third loan was taken out on 10 December 2001 for the sum of $140,000 over a term of 7 years, at an interest rate of 8.75% p.a.  In cross-examination, Mr. Rakai said that the current market rate for fixed deposits is 3-4%.

8.	Mr. Bashir Khan gave evidence for the Plaintiff Company saying that on 19 February 1992, he had paid $12,000 to the Labasa Town Council for 10 car parking spaces.  On 12 August 2005, the Council wrote to him saying they had provided a car parking facility for him at Jaduram Street.  The Council allocated to him car parking spaces at the carrier stand but did not mark out the spaces.  He estimated that the car park could hold about 100 cars.  

9.	The Company wrote a number of letters to the Council enquiring about the car parking spaces and also asked for demarcation of the spaces allocated.  Apart from saying that car parking spaces had been provided at the carrier stand, the Council did not show him where the allocated spaces were.

10.	The first witness for the Defendant was Mr. Mohammed Faizal Ali, Health Inspector and Building Surveyor with the Council.  He said that the Plaintiff had paid $12,000 in 1992 for 10 car parking spaces.  For a commercial Zone B development, an applicant was required to provide one car park for every 102m2 of the floor area of its building.  Since the Plaintiff had decided to maximize the use of its property, leaving no space on site for the car parks it was required to have under the Town Planning Act, it then paid $12,000 as monetary contribution in lieu of car parking space.  Car parking space is allocated by the Council when it is able to provide it.  

11.	A number of companies had applied for car parking spaces but were yet to be allocated any.  The Defendant has since secured a property at Nayaca Subdivision where it intends to provide the car parking spaces to the said companies, including the Plaintiff.

12.	The Plaintiff was informed in 2005 and in 2010 of the car parks for it at the carrier stand but to date, it has not utilized them. The parking spaces for the Plaintiff at the carrier stand were a temporary arrangement by the Council until it could provide a proper car parking facility.  

13.	Manasa Tuilau, Senior Town Planner, also gave evidence for the Council.  He said each developer had a choice to either provide car parking for its building on site or within the area.  Referring to a letter he had written to the Council on 5 February 2016 in respect of car parking spaces for the Plaintiff, he said that developers could not demand for car parking spaces in light of issues relating to access to land, and that parking spaces could be provided once the land was ready.  

Town Planning Act
14.	The General Provisions for Town Planning Schemes and Areas 1999 of the Town Planning ActCap 139 are helpful in deciding the issues before the Court.  

15.	Clauses 30 – 32 of Provision 9 state:

(30)	In all commercial zones car parking spaces shall be provided at the rate of one car space per unit or 140m2 of gross floor area (and fraction thereof) whichever provides the greater number of car parking spaces.  The Local Authority may with the consent of the Director reduce this ratio outside the “Car Parking Exemption Area” defined in clause (31) below, if in any instance it is satisfied that other satisfactory off-site car parking facilities are or will be available in the vicinity.  In determining car parking requirements that part of the gross floor area designated on the plan for car parking purposes shall be excluded from the calculations.
(31) 	Exemption to this requirement is granted within the area shown on any Scheme Plan or supplementary plan as the “Car Parking Exemption Area”.  The Local Authority may with the consent of the Director grant exemptions or partial exemptions outside the areas defined as “Car Parking Exemption Area” provided the Local Authority is satisfied that Off-street car parking facilities are or will be available in the vicinity.
(32) 	Any person carrying out developments exempted from the provisions of car parking spaces under the preceding paragraph shall pay a levy at a rate per space to be determined from time to time by the Local Authority and approved by the Director.  Payment shall be made to the Local Authority prior to the issue of a building permit for the development in question and all revenue received under this levy shall be placed by the Local Authority in the car parking fund which shall be used only for the provision of public car parking space.  If the Council is not able to provide public car parking immediately and at a reasonable distance to the site the developer shall enter into a bond with the Council for the prescribed levy and the bond shall be bank guaranteed and paid on demand once public car parking is provided.

Analysis
16.	It is not disputed that the Plaintiff had paid in 1992, $12,000 for 10 parking spaces in exemption of the requirement under the Town Planning Act that it provide a car park for every 140m2 of its building. (Provision 9, clause 30, Town Planning Act, General Provisions.)  For the Defendant, Mr. Faizal Ali said that an applicant for a Commercial Zone B development was required to provide one car parking space per 102m2 of the floor area of its building.  It  would seem that the reduction of the ground floor area per car park was by operation of clause 30, which allows the Local Authority to, with the consent of the Director of Town and Country Planning, reduce the stipulated ratio of one car park per 140m2.

17.	Pursuant to Clause 31 of the General Provisions, (supra) the Defendant has power to, with the consent of the Director of Town and Country Planning, grant exemption or partial exemption to the requirement under Clause 30 for the developer to provide car parks on site.  This appears to be what happened in this case, with the Defendant exempting the Plaintiff from the requirement that it provide car parks on site in proportion to the floor area of its building.  Under this Clause, the exemption was to be granted “provided the Local Authority is satisfied that Off-street car parking facilities are or will be available in the vicinity.” 

18.	Clause 32 then requires the payment of a levy before issuance of a building permit for the Plaintiff’s development, and thus the Plaintiff paid $12,000 for the 10 car parking spaces it should have had on site, but have been exempted for under Clause 31.  Clause 32 however, also states that:

If the Council is not able to provide public car parking immediately and at a reasonable distance to the site the developer shall enter into a bond with the Council for the prescribed levy and the bond shall be bank guaranteed and paid on demand once public car parking is provided.  

19.	The provision above is clear.  The inability of the Council to immediately provide a developer with public car parking imposes on the developer a mandatory duty to enter into a bond with the Council for the prescribed levy.  That bond requires a bank guarantee and be paid on demand once the public car parking is provided.

20.	This provision would have envisaged the difficulty that the Plaintiff now finds itself in, of having paid monies for car parks that the Council then, and for many years thereafter, was unable to provide for lack of space, resulting in what the Plaintiff claims to be losses and damages on its part. 

21.	The evidence of Manasa Tuilau, Senior Town Planner is that car parking spaces cannot be demanded, owing to the problem with access to land.  He said the Council is able to provide car parks only when there is land or space for these.

22.	There is no evidence as to when these car parks were to have been provided.  It is clear however that the Defendant could not immediately provide the parking spaces.  In fact, it was not until more than 13 years later, on 11 July 2005, that the Plaintiff wrote to the Defendant that it still had not been given the parking spaces it had paid for.  Clause 31 of the General Provisions is clear on the developer’s obligation where the Council is unable to immediately provide the parking spaces.  It is a mandatory provision which, in my opinion, renders any agreement to the contrary between the parties, illegal.  

23.	In my view, the Plaintiff’s losses and damages alleged in its claim are a direct result of its non-compliance with Clause 32 of the General Provisions (supra).  It was not obliged to pay the levy for exemption if the Defendant Council was not able to immediately provide it with public car parking, and all it needed to do was comply with the mandatory provision of Clause 32, enter into a bond with the Defendant, and pay the levy upon demand when the car parking spaces became available.  This it did not do.  Compliance with Clause 32 would have prevented the Plaintiff from the losses and damages it now says it sustained as a result of paying $12,000 for 10 car parks.  

24.	For the reasons given above, I have come to the firm conclusion that the Plaintiff is not entitled to damages. 

25.	Counsel for the Plaintiff is adamant that “These proceedings are nothing about the Defendant refunding the money to the Plaintiff.  Nor has it got anything to do with the provision of ten (10) car parking spaces at Nayaca Subdivision… [and that]…These proceedings are about assessing damages suffered by the Plaintiffs for being kept out of its money.”   

26.	Having thus assessed damages, I conclude that the Plaintiff is not so entitled, on account of the breach of Clause 32 of Provision 9 of the General Provisions for Town Planning Schemes and Areas 1999 of the Town Planning ActCap 139.

27.	Order

1.	Summons for assessment of damages is dismissed.
2.	In the circumstances of this case, I order for parties to bear their own costs.  

S.F. Bull
Acting Master