IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 226 of 2013

PACIFIC VILLA DEVELOPMENT LIMITED a duly incorporated company having its registered office at Suva.
PLAINTIFF

V

SPEEDY HERO DEVELOPMENT LIMITED trading as THE PEARL SOUTH PACIFIC a company incorporated in Hong Kong and having its established place of business at the Pearl South Pacific Resort, Pacific Harbour, Fiji.

DEFENDANT

BEFORE	              :	Justice Riyaz Hamza

COUNSEL	  :        Mr. N Lajendra for the Plaintiff
				           Mr. S. Nandan with Ms. V. Kirti for the Defendant

JUDGMENT

CHRONOLOGY OF EVENTS
[1]	This is an application made by the Plaintiff, by way of a Writ of Summons. The original Writ of Summons, together with a Statement of Claim, was filed in Court on 31 July 2013.  

[2]	Therein, the Plaintiff claimed the following reliefs against the Defendant:
(i) 	Special damages in the sum of $83,000.00;
(ii)	Interest at the rate of 5% on special damages from the date of Judgment until full payment;
(iii)	General Damages;
(iv)	Interest at the rate of 5% on general damages from the date of Judgment until full payment;
(v)	Costs on indemnity basis; and
(vi)	Such other relief as the Court may deem just and equitable in the circumstances.

[3]	On 7 August 2013, the Defendant filed their Statement of Defence, whereas, on 22 August 2013, the Plaintiff filed their reply to the Statement of Defence. 

[4]	On 13 March 2015, the Plaintiff filed Summons for Leave to File Amended Writ of Summons. The said Summons was supported by an Affidavit deposed by Will Hawney, a Director of the Plaintiff Company.

[5]	Pursuant to leave being granted, on 4 December 2015, the Plaintiff filed an Amended Writ of Summons, together with an Amended Statement of Claim.

[6]	On 15 December 2015, the Defendant filed their Statement of Defence to the Amended Statement of Claim. Subsequently, on 1 February 2016, an Amended Statement of Defence to the Amended Statement of Claim was filed. The Plaintiff filed their Reply to the Amended Statement of Defence, on 15 February 2016. 

[7]	A Pre-Trial Conference had been held between the Solicitors for the Plaintiff and the Defendant and the Minutes of the said Pre-Trial Conference were filed in Court on 10 August 2016.

[8]	The trial in this matter took place on 30 November 2016 and 23 January 2017. During the trial the Plaintiff called four witnesses to prove its case: Mr. Will Clifford Steven Hawney- Managing Director of the Plaintiff Company; Mr. Russel Toovey- Managing Director of Axis Portfolio Pty Ltd; Mr. Pumale Reddy- A Registered Surveyor; and Mr. Tweta Wakaya- A Surveyor Technician with Wood & Jepsen.

[9]	At the conclusion of the Plaintiff’s case, the Counsel for the Defendant took up two objections: 
1.	An application for striking out the Plaintiff’s Amended Statement of Claim; and
2.	An application for non-suit.

[10]	Hearing into the said two objections was taken up before me on 17 February 2017 and 12 April 2017. 
[11]	This Court made its Ruling on 2 November 2018 [Vide: Pacific Villa Development Ltd v. Speedy Hero Development Ltd (Trading as The Pearl South Pacific) [2018] FJHC 1061; HBC226.2013 (2 November 2018)]. For the reasons set out in the said Ruling Court made the following Orders:

1.  	The application made by the Defendant for striking out of the Plaintiff’s Amended Statement of Claim is refused.
2.	The application made by the Defendant for non-suit is refused.
3.	The cost of this matter shall be costs in the cause.
4.	The matter to be listed for mention on Monday 12 November 2018 at 9.30 a.m.

[12]	Thereafter, on 28 November 2018, the Plaintiff filed the Summons for Leave to File Further Amended Writ of Summons. The Summons was supported by an Affidavit deposed to by Amanda Marrita Erasito, a Solicitor from Messrs Lajendra Lawyers.

[13]	On 25 January 2019, Natalie Marletta, General Manager of the Defendant Company, filed an Affidavit in Opposition to the aforesaid Summons. An Affidavit in Reply was filed on behalf of the Plaintiff, by Amanda Marrita Erasito, on 6 March 2019.
[14]	The hearing of the Summons for Leave to File Further Amended Writ of Summons, was taken up before me on 6 March 2019. 

[15]	On 3 June 2019, this Court made its Ruling in respect of the said Summons [Vide: Pacific Villa Development Ltd v. Speedy Hero Development Ltd (Trading as The Pearl South Pacific) HBC226.2013 (3 June 2019)]. For the reasons set out in the Ruling this Court made the following Orders:

1. 	The application made by the Plaintiff for Leave to file Further Amended Statement of Claim is allowed. 
2.	The Plaintiff shall file and serve Further Amended Statement of Claim by 17 June 2019.
3.	The costs of this application shall be costs in this cause.  

[16]	Accordingly, on 10 June 2019, the Plaintiff filed Further Amended Statement of Claim. On 26 June 2019, the Defendant filed Statement of Defence to the Further Amended Statement of Claim.

[17]	Pursuant to the amended pleadings been filed, both parties agreed that the Minutes of the Pre-Trial Conference, which were filed in Court on 10 August 2016, be disregarded, since the pleadings had now overtaken the said Minutes of the Pre-Trial Conference.

[18]	Further trial in this matter took place on 16 December 2019. The Defendant called Mr. Eugene Hamilton Kanaimawi Panuve, the Golf Course Manager of Pearl South Pacific Resort, as its sole witness. 

[19] 	At the conclusion of the trial, both parties filed their Closing Submissions, which I have had the benefit of perusing. 
THE FURTHER AMENDED STATEMENT OF CLAIM
[20]	As per the Further Amended Statement of Claim the Plaintiff, inter-alia, states the following:
	
1.	The Plaintiff was at all material times a duly incorporated company having its registered office at Suva.
2.	The Defendant is a limited liability company duly incorporated in Hong Kong but having its established place of business in Fiji at the Pearl South Pacific Resort, Pacific Harbour.
3.	The Defendant carries on the business of hotel and tourism in Fiji and operates under the name “The Pearl South Pacific”.
4.	The Plaintiff was at all material times the registered proprietor of the land comprised in the following:
(a)	Certificate of Title No. 15674 Lot 29 on Deposited Plan 3993 containing an area of 1 rood and situated in Serua, Viti Levu (“Lot 29”);
(b)	Certificate of Title No. 15675 Lot 30 on Deposited Plan 3993 containing an area of 38 perches and 9/10 of perch and situated in Serua, Viti Levu (“Lot 30”); and
(c)	Certificate of Title No. 15676 Lot 31 on Deposited Plan 3993 containing an area of 1 rood and 15 perches and situated in Serua, Viti Levu (“Lot 31”).
5.	The Defendant has constructed an eighteen-hole golf course at the Pearl South Pacific Resort, which also includes the construction of a golf course turf with concrete golf cart track and bridge.
6.	The Defendant has encroached on the land which the Plaintiff was proprietor of at all material times, by constructing a golf course turf and concrete golf cart track across Lots 29, 30 and 31 without obtaining prior consent of the Plaintiff.
7.	The Defendant has further encroached on the land which the Plaintiff was proprietor of at all material times, by constructing a bridge between Lot 29 and Lot 30 without obtaining prior consent of the Plaintiff.
8.	The total area of the encroachment by the Defendant on Lots 29, 30 and 31 is approximately 1416 square meters.
9.	The Defendant was negligent in encroaching on Lots 29, 30 and 31. The particulars of negligence has also been detailed.
10.	The construction of the golf course turf, concrete golf cart track and bridge has caused substantial damages to the ground surface of the land situated on Lots 29, 30 and 31.
11. 	The Defendant’s negligence has caused the Plaintiff loss in failing to sell Lots 29, 30 and 31 to a potential buyer for a greater value. 
12.	The potential buyer made an offer to purchase Lots 29, 30 and 31 for a total purchase price of $210,000.00. However, after considering the encroachments as a result of the Defendant’s negligence, the potential buyer decided not to proceed with the purchase. 
13.	The Plaintiff eventually sold Lot 29 to Mr. Ronald Ritesh Chand for $39,000.00 and sold Lots 30 and 31 to Mr. Christopher Mark Schembri for $88,000.00. The total sum for which the three lots were sold was $127,000.00, which was lesser than the original purchase price of $210,000.00. As a result of the Defendant’s negligence the Plaintiff has suffered a loss of $83,000.00.

THE STATEMENT OF DEFENCE TO THE FURTHER AMENDED STATEMENT OF CLAIM
[21]	The Defendant totally denies the claim made by the Plaintiff. The Defendant states that the golf course was already constructed at the time the Defendant purchased the land and the same has been used pursuant to the Defendant’s belief that it was part of the land sold to it.

THE PLAINTIFF’S CASE

[22]	As stated before, the Plaintiff relied on the following four witnesses to establish its case: 
1.	Mr. Will Clifford Steven Hawney- Managing Director of the Plaintiff Company;
2.	Mr. Russel Toovey- Managing Director of Axis Portfolio Pty Ltd;
3.	Mr. Pumale Reddy- A Registered Surveyor; and
4.	Mr. Tweta Wakaya- A Survey Technician with Wood & Jepsen.

[23]	The following documents were also tendered to Court by the Plaintiff as Exhibits:  
	
P1	Certified True Copy of Certificate of Title No. 15674 Lot 29 on DP 3993 registered on 18 January 2006.
P2	Certified True Copy of Certificate of Title No. 15675 Lot 30 on DP 3993 registered on 18 January 2006.
P3	Certified True Copy of Certificate of Title No. 15676 Lot 31 on DP 3993 registered on 18 January 2006.
P4	Certified True Copy of Application for Registration of Business for Speedy Hero Development Limited (Pearl South Pacific).
P5	Copy of letter from Lajendra Law to Ms. Natalie Marletta, General Manager, The Pearl South Pacific Resort, dated 8 May 2013.
P6	Copy of letter from Lajendra Law to Ms. Natalie Marletta, General Manager, The Pearl South Pacific Resort, dated 24 May 2013. 
P7	Copy of letter from Reddy & Nandan Lawyers to Lajendra Law, dated 27 May 2013.
P8	Copy of letter from Lajendra Law to Reddy & Nandan Lawyers, dated 31 May 2013.	
P9	Copies of email exchange between the Plaintiff and the Defendant.	

P9 (a)	Copy of email dated 12 June 2013, from Will Hawney to Natalie Marletta.

P9 (b)	Copy of email dated 15 June 2013, from Natalie Marletta to Will Hawney.

P10	Copy of letter from Reddy & Nandan Lawyers to Lajendra Law, dated 2 July 2013.
P11	Copy of letter from Lajendra Law to Reddy & Nandan Lawyers, dated 5 July 2013.
P12	Copy of letter from Reddy & Nandan Lawyers to Lajendra Law, dated 16 July 2013.
P13	Certified True Copy of Transfer No. 791123, registered on 24 December 2013, in respect of Certificate of Title Nos. 15675 and 15676 from Pacific Villa Development Limited to Mr Christopher Mark Schembri (Transfer of Lots 30 and 31).
P14	Certified True Copy of Transfer No. 808289 registered on 23 December 2014 in respect of Certificate of Title No. 15674 from Pacific Villa Development Limited to Mr Ronald Ritesh Chand (Transfer of Lot 29).
P15	Certified True Copy of Certificate of Title No. 15674 Lot 29 on DP 3993 registered on 23 December 2014.
P16	Certified True Copy of Certificate of Title No. 15675 Lot 30 on DP 3993 registered on 24 December 2013.
P17	Certified True Copy of Certificate of Title No. 15676 Lot 31 on DP 3993 registered on 24 December 2013.
P18	Copy of letter from Russel Toovey, Director Axis Portfolio Pty Ltd to Will Hawney, dated 10 May 2012.
P19	Copy of letter from Russel Toovey, Director Axis Portfolio Pty Ltd to Will Hawney, dated 1 June 2012.
P20	Copy of letter from Russel Toovey, Director Axis Portfolio Pty Ltd to Will Hawney, dated 20 June 2012. 
P21	Report from Wood & Jepsen Consultants, dated 1 July 2013.
P22	Redefinition of Lots 29-31 on DP 3993 and full sized coloured map of the Harbour Property.  

[24]	The first witness for the Plaintiff was Will Hawney. He testified that he is an insolvency practitioner, in Queensland, Australia. He was involved in the incorporation of the Plaintiff Company around 2005 or 2006. He was the Managing Director of the Company since its inception.

[25]	The Plaintiff Company acquired the land comprised in Certificate of Title No. 15674 (Lot 29), Certificate of Title No. 15675 (Lot 30) and Certificate of Title No. 15676 (Lot 31), situated at Deuba, in Pacific Harbour, on 18 January 2006 [Plaintiff’s Exhibits P1, P2 and P3]. The Plaintiff acquired these three properties, together with eight other properties, which were all located adjacent to each other. All 11 properties were free hold. At the time of the acquisition all the properties were vacant.  

[26]	The witness testified that the purpose of acquiring the said properties were to develop the land by constructing villas on it and thereafter to sell the villas for profit. The Plaintiff started building a villa on one of the lots in 2006. However, the Plaintiff did not attempt to build on the other lots, since banks were not willing to loan money due to the uncertain political situation prevalent in the country at the time.

[27]	Therefore, the Plaintiff Company decided to sell the villa already constructed (this was around 2008-2009) and the other 10 lots as vacant land (this was around 2009-2010). 

[28]	On 10 May 2012, the witness received an interest from Russel Toovey, Director Axis Portfolio Pty Ltd to purchase Lots 29, 30 and 31 [Plaintiff’s Exhibit P18]. On 1 June 2012, Russel Toovey proposed an offer of FJD$210,000.00 to purchase the three lots [Plaintiff’s Exhibit P19]. However, by letter dated 20 June 2012, Russel Toovey withdrew the offer since encroachments were found on the said lots [Plaintiff’s Exhibit P20].

[29]	The witness testified as to the nature of the encroachments on Lots 29, 30 and 31. He said that at the time of purchasing the property he did not see any encroachments on the said land. He only became aware or noticed the encroachments at the time inquiries were being made for the sale of the property.

[30]	Eventually Lot 29 was sold for FJD$39,000.00 [Plaintiff’s Exhibit P14] and Lots 30 and 31 for FJD$88,000.00 [Plaintiff’s Exhibit P13]. 

[31]	The next witness for the Plaintiff was Russel Toovey, Managing Director of Axis Portfolio Pty Ltd. He testified as to how he became aware and interested in the Plaintiff’s property and also to the correspondence he had with Will Hawney with regard to purchasing of Lots 29, 30 and 31. He had made an offer of FJD$210,000.00 for the three lots. However, on finding out that there were encroachments on the said lots he had withdrawn his offer.

[32]	Pumale Reddy, Registered Surveyor, was the next witness for the Plaintiff. He had worked at the Department of Lands for a long period of 37 years. On his retirement in 2009, he had joined Wood & Jepsen Consultants, a firm of Registered Surveyors.

[33]	The witness testified that in the year 2013 he had received a request from Will Hawney to carry out a redefinition survey of Lots 29, 30 and 31. He had then instructed one of his Senior Technicians, Tweta Wakaya, to conduct the survey on site. On completion of the survey, a Survey Report, dated 1 July 2013, was prepared by him [Plaintiff’s Exhibit P21]. A drawing for the redefinition was tendered to Court as Plaintiff’s Exhibit P22.

[34]	As per Exhibit P22 the Encroachment Area on Lots 29, 30 and 31 has been indicated to be 1416 square meters (area marked in green in the diagram). 
[35]	The final witness for the Plaintiff was Tweta Wakaya, A Survey Technician with Wood & Jepsen. He has been working as a Survey Technician since his graduation in 2002. His job responsibilities include going out to the field on the instructions of Registered Surveyors and conducting field surveys (collecting data from the site). The collected data is then plotted out in order to produce a survey plan/drawing.

[36]	The witness testified that in the year 2013, he had been instructed by Pumale Reddy to conduct a redefinition survey of Lots 29, 30 and 31. Accordingly, he had conducted the redefinition survey on site. In conducting the survey he had first identified the boundary pegs in respect of the three lots. He concluded that there was an encroachment on Lots 29, 30 and 31 from the neighbouring property.

THE DEFENDANT’S CASE

[37]	The sole witness called by the Defendant was Eugene Panuve, the Golf Course Manager of Pearl South Pacific, the Defendant Company. He had served in that capacity for just over two years.

[38]	He testified that he has access to past golf course records dating back to the beginning of the course. The construction of the course had been completed in 1976. The course was constructed by a Japanese Development Company, which was trading in Fiji as Pacific Hotels and Development Limited.

[39]	The Defendant Company had acquired the golf course in late October 2015. This was part of a larger acquisition, since the entire Pearl South Pacific Resort was acquired by the Defendant. Immediately before that the golf course was owned by Pacific Harbour Enterprises Limited. 

[40]	The witness testified that since the Defendant acquired the golf course, the Defendant has not done any construction on the course. The Defendant did not build any cart paths or construct any bridges on the golf course since its acquisition. He said that the golf course turf, golf cart track and bridges were already there when the Defendant acquired the property. 

[41]	The witness explained that certain renovation works were done on certain areas of the course by the Defendant. But none of these renovations were in the vicinity of the Plaintiff’s properties.

[42]	In cross examination the witness admitted that the Defendant Company was registered in Fiji on 9 March 2005 [Plaintiff’s Exhibit P4]. Thus he admitted that the Resort would have been acquired by the Defendant in 2005. Therefore, he said there was a ‘slim possibility’ that the Defendant built the cart path and bridge.

[43]	However, in re-examination the witness said that there was a ‘very very low probability’ that the Defendant built the cart path and bridge, since a large financial expenditure was required for such a construction. He confirmed that he had not seen any records to establish such financial expenditure undertaken by the Defendant.  

ANALYSIS AND DETERMINATION

[44]	Since this is a cause of action for negligence the Plaintiff must establish that the Defendant owed a duty of care to the Plaintiff; that the Defendant breached the said duty of care; and that damages were caused to the Plaintiff as a direct consequence of the said breach of the duty of care.

[45]	The Plaintiff has claimed that the Defendant constructed an eighteen-hole golf course at the Pearl South Pacific Resort, which also includes the construction of a golf course turf with concrete golf cart track and bridge. Further it is claimed that by constructing the said golf course turf and concrete golf cart track, without obtaining prior consent of the Plaintiff, that the Defendant has encroached on Lots 29, 30 and 31, and that by constructing a bridge between Lot 29 and Lot 30, without obtaining prior consent of the Plaintiff, that further encroachment has been caused to the Plaintiff’s said property. The total area of the encroachment by the Defendant on Lots 29, 30 and 31 is said to be approximately 1416 square meters.

[46]	It is further claimed that the Defendant acted negligently in encroaching on the said property and thereby caused substantial damages to the ground surface of the land situated on Lots 29, 30 and 31. The Defendant’s negligence is said to have caused the Plaintiff loss in failing to sell Lots 29, 30 and 31 to a potential buyer for a greater value. 

[47]	It is incumbent on the Plaintiff to establish these factors on a balance of probabilities.

[48]	From the evidence adduced in this case, it has been established that the Plaintiff was the registered proprietor of Lot 29, Lot 30 and Lot 31, which are the subject matter of this case, since 18 January 2006.

[49]	The Defendant Company was registered in Fiji on 9 March 2005 [Plaintiff’s Exhibit P4] and the Pearl South Pacific Resort was acquired by the Defendant in the same year. This was only a few months prior to the Plaintiff acquiring Lots 29, 30 and 31. 

[50]	The Plaintiff has claimed that the Defendant constructed an eighteen-hole golf course at the Pearl South Pacific Resort. However, the Defendant submits that the construction of the golf course had been completed in 1976, by a Japanese Development Company, which was trading in Fiji as Pacific Hotels and Development Limited. In fact, the original proprietors of Lots 29, 30 and 31 had also been the said Pacific Hotels and Development Limited, who became owners of the properties by virtue of a crown grant, on 21 July 1975 [Plaintiff’s Exhibits P1, P2 and P3].

[51]	There is no dispute that in fact there was an encroachment on Lots 29, 30 and 31, due to the golf course turf, which includes the concrete golf cart track, cutting across the said properties, as depicted in Plaintiff’s Exhibit P22. There is also no dispute that there is a further encroachment by virtue of the bridge between Lot 29 and Lot 30. Exhibit P22 indicates that the total area of the encroachment is 1416 square meters (the area marked in green in the diagram).
[52]	However, it is necessary for the Plaintiff to establish that in fact it was the Defendant who constructed the said golf course turf, which includes the concrete golf cart track, and the bridge, and thereby caused the said encroachment on Lots 29, 30 and 31. This burden does not shift to the Defendant to prove that they did not construct the said golf course turf, which includes the concrete golf cart track, and the bridge, on the said property. 

[53]	Having analysed all the evidence in this case, I am of the opinion that the Plaintiff has failed to establish on a balance of probabilities that in fact it was the Defendant who constructed the said golf course turf, which includes the concrete golf cart track, and the bridge, and thereby caused the said encroachment on Lots 29, 30 and 31. 

[54]	The Plaintiff states that pursuant to the correspondence between the Plaintiff and the Defendant (Plaintiff’s Exhibits P5-P12), the Defendant had admitted that an encroachment had been caused on the Plaintiff’s properties. However, the exchange of the said correspondence or the fact that the Defendant had wanted to resolve the matter amicably, does not necessarily mean that the Defendant was accepting liability for the encroachment. 

[55]	Furthermore, I agree with the contention of the Defendant that no evidence has been elicited in Court to establish that the Lots 29, 30 and 31 actually suffered damage due to the encroachment. Further no evidence has been led to establish that there has been actual diminishing of the value of the Lots due to the encroachment. No independent valuation is available of the actual market price of the property as at the time of the sale in December 2013 and December 2014 respectively, to compare with the final sale price that the Plaintiff secured in selling the properties. 

[56]	For all the aforesaid reasons, I find that the Plaintiff has failed to establish on a balance of probabilities its claim against the Defendant. 

[57]	In the circumstances, I am of the opinion that the Plaintiff has failed on a balance of probabilities to establish the case against the Defendant. For the above reasons, I dismiss the Plaintiff’s claim made against the Defendant.   
ISSUE OF COSTS

[58]	As stated before, prior to this final judgment, two interlocutory orders were pronounced by this Court, on 2 November 2018 and 3 June 2019. The first ruling was in respect of an application made by the Defendant for striking out of the Plaintiff’s claim and for non-suit. The said application was made at the conclusion of the Plaintiff’s case. By its ruling on 2 November 2018, this Court refused the said application made by the Defendant.

[59]	The second ruling was in respect of an application made by the Plaintiff by way of Summons for Leave to File Further Amended Writ of Summons. By its ruling on 3 June 2019, this Court granted leave to the Plaintiff to file Further Amended Writ of Summons.

[60]	In respect of both interlocutory applications Court made order that the issue of costs shall be decided at the conclusion of these proceedings. The ruling made by this Court on 2 November 2018, was in favour of the Plaintiff.  As such, the Plaintiff was entitled to costs from the Defendant. In terms of the ruling made by this Court on 3 June 2019, the Defendant was entitled to costs from the Plaintiff. Accordingly, I hold that the costs due to the Plaintiff and the Defendant in respect of the said interlocutory rulings be set off against each other.

[61]	The issue of costs in respect of the interlocutory applications been settled, I am of the opinion that the Defendant is entitled to summarily assessed costs in the sum of Fijian Dollars $4,000.00 from the Plaintiff in respect of this action.

FINAL ORDERS
	1.	This action is dismissed.
2.	I order that the Plaintiff pay summarily assessed costs in the sum of Fijian Dollars $4,000.00, to the Defendant, within one month of this Judgment.

Riyaz Hamza
JUDGE
HIGH COURT OF FIJI

AT SUVA
Dated this 15th day of June 2020

Solicitors for the Plaintiff	: 	Lajendra Lawyers, Barristers & Solicitors, Suva.
Solicitors for the Defendant	: 	Reddy & Nandan Lawyers, Barristers & Solicitors, Suva.