PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Fiji
You are here:  PacLII >> Databases >> High Court of Fiji >> 2024 >> [2024] FJHC 777

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Corporate Management Services Ltd (trading as the Hot Bread Kitchen) v South Pacific Agriculture Development Ltd [2024] FJHC 777; HBC54.2020 (23 July 2024)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO.: HBC 54 of 2020


BETWEEN : CORPORATE MANAGEMENT SERVICES

LIMITED T/A THE HOT BREAD KITCHEN


FIRST PLAINTIFF


: SAMISONI ENTERPRISES


SECOND PLAINTIFF


AND : SOUTH PACIFIC AGRICULTURE

DEVELOPMENT LTD

DEFENDANT


APPEARANCES/REPRESENTATION
PLAINTIFFS : Mr. D. Prasad [Diven Prasad Lawyers]
DEFENDANT : No Appearance Entered
JUDGMENT BY : Master Ms Vandhana Lal
DELIVERED ON : 23 July 2024


JUDGMENT


Introduction

  1. The Plaintiff caused a writ to be issued against the Defendant who were served with the writ on the 11th February 2020 and failed to acknowledge service and file their defence.
  2. Subsequently the Plaintiff moved the court to enter judgment with damages to be assessed. Due to the nature of orders sought matter proceeded for formal proof.

The Plaintiffs’ claim

  1. The Plaintiffs’ claim relates to money borrowed by the Defendant from it to repay its’ (Defendant’s financier) Fiji Development Bank.

The Defendant agreed that one subdivision was completed of its property at Labasa. It would transfer land titles to the First Plaintiff equivalent to the amount loaned by the First Plaintiff.


Between the 20th January 2010 and 16th September 2015, the First Plaintiff is said to have loaned the Defendant a sum of $1,142,124.96.


Prior to 2010 the Defendant took loan between 31st October 2006 to 17th December 2009 from first Plaintiff totally $1,366,368.66.


Between 21st October 2013 and 04th April 2014 the Second Plaintiff is said to have loaned to the Defendant a sum of $150,000.00.


On 25th February 2014 the Defendant and First Plaintiff executed a Memorandum of Agreement whereby the Defendant agreed to sell to the Plaintiff 06 freehold residential lots for sum of $522,000 which could offset from the total loan.


These lands are:

- CT 30327 Lot 3 DP 7899;
- CT 30328 Lot 4 DP 7899;
- CT 30367 Lot 43 DP 7899;
- CT 30370 Lot 46 DP 7899;
- CT 30371 Lot 47 DP 7899; and
- CT 30374 Lot 50 DP 7899.

The Defendant also agreed to transfer 300 acres of freehold land to the First Plaintiff upon release of the mortgage of the said land from Fiji Development Bank and give on freehold lot described as CT 30331 Lot 7 DP 7899 as a gift and upon transfer of said properties the debt owned by the Defendant to the first Plaintiff would be offset.


The agreement was duly stamped.


The Defendant failed to comply with the terms of the Agreement that is it failed to transfer the 300 acres freehold land and failed to execute the transfer documents to transfer the said 8 lots.


Despite remainder the Defendant refused and/or neglected to comply with the agreement.


The first Plaintiff seeks from the Defendant specific performance of its obligation under the said agreement.


Alternatively, the first Plaintiff is asking for sum of $2,508,493.62 with interest.


The second of seeks sum of $150,000 with interest, alternatively it seeks property with a value equivalent to the loan amount due and owing inclusive of interest.


The Plaintiffs also allege they suffered loss and damages.


Evidence in support of the claim

  1. Evidence by Plaintiffs’ only witness John Lesley Samisoni is summarized as follows:

The Plaintiff had dealings with the Defendant whereby the directors of the Defendant approached the witness and had discussion.


The Defendant Company had taken loan from Fiji Development Bank and were to pay the loan by 2006 but could not.


The Plaintiffs agreed to assist the Defendant.


The parties entered into a memorandum of agreement on 23rd July 2008. [Exhibit marked 2]


On 23rd July 2008 a Sales and Purchase Agreement was entered into between the First Plaintiff and the Defendant for transfer of following lands:

(i) CT No. 30050 Lot 2 on DP No. 6599 Vunicibicibi containing an area of 8.1666 ha;
(ii) CT No. 30051 Lot 3 on DP No. 6599 Vunicibicibi containing an area of 9.9287 ha;
(iii) CT No. 30052 Lot 4 on DP No. 6599 Vunicibicibi containing an area of 8.8736 ha;
(iv) CT No. 30053 Lot 5 on DP No. 6599 Vunicibicibi containing an area of 8.0440 ha;
(v) CT No. 30064 Lot 1 on DP No. 6601 Vunicibicibi containing an area of 8.0629 ha;
(vi) CT No. 30065 Lot 2 on DP No. 6601 Vunicibicibi containing an area of 6.5888 ha;
(vii) CT No. 30066 Lot 3 on DP No. 6601 Vunicibicibi containing an area of 6.6162 ha;
(viii) CT No. 30067 Lot 4 on DP No. 6601 Vunicibicibi containing an area of 6.5883 ha;
(ix) CT No. 30068 Lot 5 on DP No. 6601 Vunicibicibi containing an area of 6.6284 ha;
(x) CT No. 30069 Lot 6 on DP No. 6601 Vunicibicibi containing an area of 6.7251 ha;
(xi) CT No. 30070 Lot 7 on DP No. 6601 Vunicibicibi containing an area of 7.0294 ha;
(xii) CT No. 30071 Lot 8 on DP No. 6601 Vunicibicibi containing an area of 8.4689 ha;
(xiii) CT No. 30093 Lot 1 on DP No. 6602 Vunicibicibi containing an area of 8.1704 ha;
(xiv) CT No. 30094 Lot2 on DP No. 6602 Vunicibicibi containing an area of 7.3588 ha;
(xv) CT No. 30095 Lot 3 on DP No. 6602 Vunicibicibi containing an area of 6.9499 ha;
(xvi) CT No. 30096 Lot 4 on DP No. 6602 Vunicibicibi containing an area of 7.4471 ha.

The Defendant has failed to honour the agreement.


On 02nd November 2008 the Defendant and First Plaintiff entered into an agreement whereby the First Plaintiff will secure loan from Colonial National Bank with Defendant providing 910.2843 acres of land as collateral.


The loan amount was for $1,990,000 and the Defendant will utilize the fund as follows:

FDB $1,500,000

Westpac $ 190,000

Credit Corporation $ 50,000

Royal Fijiana New

Company Registration Deposit $ 250,000

$1,990,000


Interest on the loan for 2009 will be $250,000.


When Westpac discharges the mortgage, the Defendant would sell the lots (8 subdivision lots) in overseas market. For each sale transaction of 11 lots the Defendant will pay the First Plaintiff 35% of the sales price.


Another Sales & Purchase agreement was entered between the First Plaintiff and the Defendant to sell following land for $550,000:

(i) CT No. 30077 Lot 6 on DP No. 6409 Vunicibicibi containing an area of 6.4635 ha;
(ii) CT No. 30078 Lot 7 on DP No. 6409 Vunicibicibi containing an area of 6.1832 ha;
(iii) CT No. 30079 Lot 8 on DP No. 6409 Vunicibicibi containing an area of 6.3857 ha;
(iv) CT No. 30080 Lot 9 on DP No. 6409 Vunicibicibi containing an area of 6.1411 ha;
(v) CT No. 30081 Lot 10 on DP No. 6409 Vunicibicibi containing an area of 6.1507 ha;
(vi) CT No. 30082 Lot 11 on DP No. 6409 Vunicibicibi containing an area of 4.0520 ha;
(vii) CT No. 30021 Lot 8 on DP No. 6600 Vunicibicibi containing an area of 6.0993 ha.

On 22nd September 2009 the First Plaintiff and the Defendant entered into a Sales and Purchase Agreement to following land for $550,000:

(i) CT No. 30014 Lot 1 on DP No. 6600 Vunicibicibi containing an area of 7.0379 ha;
(ii) CT No. 30015 Lot 2 on DP No. 6600 Vunicibicibi containing an area of 6.2528 ha;
(iii) CT No. 30016 Lot 3 on DP No. 6600 Vunicibicibi containing an area of 6.2402 ha;
(iv) CT No. 30017 Lot 4 on DP No. 6600 Vunicibicibi containing an area of 6.2578 ha;
(v) CT No. 30018 Lot 5 on DP No. 6600 Vunicibicibi containing an area of 5.9514 ha;
(vi) CT No. 30019 Lot 6 on DP No. 6600 Vunicibicibi containing an area of 6.1253 ha;
(vii) CT No. 30020 Lot 7 on DP No. 6600 Vunicibicibi containing an area of 6.0651 ha.

The Defendant failed to honour these agreements.


On 25th February 2014 another agreement was executed between the Defendant and the first Plaintiff for sale of lots for $522,000 monies were paid as itemized in the agreement. However, the Defendant failed to honour the agreement.


On 25th February 2014 the Defendant and the first Plaintiff entered into a Sales and Purchase agreement for following lands:

(i) CT No. 30327 Lot 3 on DP No. 7899 containing an area of 3304 square metres;

(ii) CT No. 30328 Lot 4 on DP No. 7899 containing an area of 3304 square metres;

(iii) CT No. 30331 Lot 7 on DP No. 7899 containing an area of 3304 square metres;

(iv) CT No. 30332 Lot 8 on DP No. 7899 containing an area of 3304 square metres;

(v) CT No. 30367 Lot 43 on DP No. 7899 containing an area of 3330 square metres;

(vi) CT No. 30370 Lot 46 on DP No. 7899 containing an area of 3330 square metres;

(vii) CT No. 30371 Lot 47 on DP No. 7899 containing an area of 3330 square metres;

(viii) CT No. 30374 Lot 50 on DP No. 7899 containing an area of 3330 square metres.


The sale price was $572,000 which the First Plaintiff paid. However, no transfer of the said land was made to the First Plaintiff.


Following lots are under the Defendant’s name and all mortgage has been discharged:

CT 30327 Lot 3 on DP 7899

CT 30328 Lot 4 on DP 7899

CT 30331 Lot 7 on DP 7899

CT 30332 Lot 8 on DP 7899

CT 30367 Lot 43 on DP 7899

CT 30370 Lot 46 on DP 7899

CT 30371 Lot 47 on DP 7899

CT 30374 Lot 30 on DP 7899


On 16th September 2015 a memorandum of understanding was signed between the Defendant and the First Plaintiff as follows:

  1. SPADE acknowledges the receipt of $50,000 from CMSL on 16th September 2015, and CMSL will keep SPADE’s Freehold Residential Land Title comprising of CT 30298 Lot 16 DP 7898 as collateral for the said amount.
  2. The said amount will be added to SPADE’s existing loan from CMSL for which a sale and purchase agreement for loan repayment between SPADE and CMSL is currently pending.
  3. Upon the SPADE Directors’ return from overseas business trip in October and CMSL’s preparation of the remaining balance amount, SPADE and CMSL will resume and finalise the abovementioned pending sale and purchase agreement for loan repayment, pursuant to which SPADE will transfer the following 8 Freehold Residential Land Titles to CMSL:
  4. SPADE hereby grants CMSL the permission to place caveats on the above-mentioned 8 titles for the said $50,000 received until the said sale and purchase agreement for loan repayment is entered into and signed between SPADE and CMSL.
  5. At the time of the signing of the said sale and purchase agreement for loan repayment, CMSL will release and return the abovementioned Freehold Residential Land Title CT 30298 Lot 16 DP 7899 to SPADE.
  6. CMSL acknowledges the receipt of the said Freehold Residential Land Title from SPADE on 16th September 2015, ad accepts full responsibility for the handling, safekeeping and return of the said title to SPADE.

The Plaintiffs are claiming for monies paid from 2010 due to limitation period.


Exhibit 11 is accounts showing monies given to the Defendant.


The Second Plaintiff gave $150,000 via cheque.


The Plaintiffs are seeking orders that orders be made as per agreement executed in 2014 whereby properties were to be transferred alternatively the Defendant pays monies with interest.


Summary of Exhibits
Plaintiff’s Exhibit 2 - the Memorandum of Agreement between the Defendant and First Plaintiff.

  1. The First Plaintiff loaned $320,000 and $200,000 to the Defendant to support its Vanua Levu Integrated Golf Resort Projects.

As a result, the Defendant agreed to transfer 300 acres of its Freehold land at the project site to the First Plaintiff as repayment of the loan [$520,000 (Principal) plus $192,000 [ being 600% interest totalling $712,000]. The Defendant will request for partial release of mortgage from Fiji Development Bank upon preparation and release of the Sales and Purchase Agreement between the parties.


Plaintiff’s exhibit 3 – the Sales and Purchase Agreement dated 23rd July 2008 between the Defendant as vendor and the First Plaintiff as Purchaser.

  1. It was agreed that Defendant would sell to the Plaintiff the following lands for $520,000:

Exhibits 7 - A memorandum of agreement dated 25 February 2014 between the First Plaintiff and the Defendant.

  1. Parties had agreed that the Defendant will sell to the Plaintiff 06 Freehold residential lots for $522,000.

The subject lots were:

(i) CT No. 30327 Lot 3 on DP No. 7899 containing an area of 3304 square metres;
(ii) CT No. 30328 Lot 4 on DP No. 7899 containing an area of 3304 square metres;
(iii) CT No. 30367 Lot 43 on DP No. 7899 containing an area of 3330 square metres;
(iv) CT No. 30370 Lot 46 on DP No. 7899 containing an area of 3330 square metres;
(v) CT No. 30371 Lot 47 on DP No. 7899 containing an area of 3330 square metres;
(vi) CT No. 30374 Lot 50 on DP No. 7899 containing an area of 3330 square meters.

It was agreed that the purchase price would be paid as follow:

$50,000 on 25th February 2014

$50,000 on 09th March 2014

$422,000 on March 2014.


It was also agreed between the parties as follows:

  1. October 2013 Sale and Purchase: 1 Freehold Residential Subdivision Lot

The sale and purchase of the following 1 Freehold Residential Subdivision Lot which took place on 21st October 2013 will also be included in the said Agreement:

(i) CT No. 30332 Lot 8 on DP No. 7899 containing an area of 3304 square metres.

The purchase price of $50,000 paid by CMSL to SPADE on 21st October 2013 will therefore be included in the Purchase Price of the said Agreement, resulting in the Purchase Price of the said Agreement to be $572,000 ($522,000 February 2014 Sale + $50,000 October 2013 Sale).


  1. Gift from SPADE to CMSL: 1 Freehold Residential Subdivision Lot

To Express SPADE’s gratitude for CMSL’s steadfast support, SPADE had offered to transfer the full ownership title to 1 Freehold Residential Subdivision Lot to CMSL as a gift.


The transfer of the following Gift Lot will also be included in the Agreement, but this will not affect the Purchase Price of the Agreement as this Freehold Residential Subdivision Lot is provided to CMSL by SPADE as a gift, free of charge.


(i) CT No. 30331 Lot on DP No. 7899 containing an area of 3304 square metres.

Exhibit 11 - Computer printout outlining loan given to the Defendant

  1. This document was prepared by the Plaintiffs’ account department outlining loan given to the Defendant via cheque.

Loan by the First Plaintiff

Date
Amount
Cheque Ref
31.10.2006
(B/F) 320,000.00
03.07.2008
108,929.17
Chq# 55 – CNB
03.07.2008
43,000.00
Chq# 56 - CNB
04.08.2008
20,000.00
Chq# 34902 – ANZ
12.08.2008
28,070.83
Chq# 59 – CNB
14.11.2008
21,168.66
Chq#35928 – ANZ
17.12.2008
20,000.00
Chq#36233 – ANZ
27.01.2009
50,000.00
Chq#36597 – ANZ
29.01.2009
100,000.00
Chq#74 – CNB
29.01.2009
10,000.00
Chq#36549 – ANZ
02.02.2009
100,000.00
Chq# 75 – CNB
13.02.2009
10,000.00
Chq# 36786
12.06.2009
43,000.00
Chq# 37846 – ANZ
01.09.2009
6,200.00
Chq#38667 – ANZ
04.09.2009
25,000.00
Chq#000084CNB
08.09.2009
30,000.00
Chq#38731ANZ
11.09.2009
48,000.00
Chq#38730ANZ
22.09.2009
50,000.00
Chq#38827ANZ
24.09.2009
100,000.00
Chq#0086CNB
05.10.2009
30,000.00
Chq419WBC
17.12.2009
203,000.00
Chq#39665ANZ
22.01.2010
30,000.00
Chq#99 CNB
04.03.2010
23,000.00
Chq#450 WBC
05.03.2010
10,000.00
Chq#451 WBC
08.03.2010
40,000.00
Chq#452 WBC
26.03.2010
50,000.00
Chq#40506 ANZ
12.01.2011
100,000.00
Chq#131 CNB
10.06.2011
50,000.00
Chq#44675 ANZ
28.07.2011
30,000.00
Chq#759 WBC
09.08.2011
40,000.00
Chq#771 WBC
15.08.2011
200,000.00
Chq#154/155/156/157 CNB
01.06.2012
50,000.00
Chq#934 WBC
31.05.2013
13,194.91
(total interest on loan from June 12 – Apr 13)
30.06.2013
33,930.05
(reclassify interest to amount owed – 30 June 2013)
25.07.2014
25,000.00
Chq#54486 ANZ
18.08.2014
397,000.00
Chq#1714 WBC
16.09.2015
50,000.00
Chq#509 BSP

Loan by the Second Plaintiff

Date
Amount
Total Interest
Total Loan Repayment
Cheque Ref
21.10.2013
50,000.00
10,875.00
60,875.00
Chq#3802 ANZ
25.02.2014
50,000.00
9,375.00
59,375.00
Chq#3816 ANZ
04.04.2014
50,000.00
8,625.00
58,625.00
Chq#3819 ANZ

150,000.00
28,875.00
178,875.00

Determination

  1. The remedies sought by the First Plaintiff are:
  2. During the hearing the Plaintiffs’ counsel limited the claim from 2010 due to statutory limitation period.

Is the First Plaintiff entitled to the 300 acres of freehold land as per the memorandum of agreement?

  1. Page 3 of the Memorandum of Agreement dated 25 February 2014 [Plaintiff’s Exhibit 7] refers to the 300 acres of freehold land that the Defendant agrees to transfer to the First Plaintiff.
  2. The condition was for release of the mortgage upon payment of loan to FDB.
  3. This agreement refers to the previous sale and purchase agreement the parties had entered into.
  4. A memorandum of agreement was previously signed on 23 July 2008 where it was agreed that the First Plaintiff had loaned to the Defendant $520,000 to support the Defendant’s development of its VanuaLevu Integrated Golf Resort Project [Plaintiff’s exhibit 2].

The 300 acres of land was for repayment of the loan of $520,000 (principal loan) and $192,000 (interest) totalling $712,000.00. and partial release of mortgage from FDB was required.


  1. The 23rd July 2008 Sales and Purchase Agreement [Plaintiff’s exhibit 3] describes the 300 acres of land as follows:

The purchase price mentioned in the agreement is $520,000.00. There is no mention for the interest sum.


  1. The latest certified copies of these titles (supplementary affidavit filed on 08 May 2024) shows that the titles still have the FDB mortgage and charge endorsed.
  2. The First Plaintiff cannot seek relief of transfer of these titles whilst the FDB mortgage and charge is still registered on them.

Transfer of the seven lots of land

  1. The memorandum of agreement for the seven lots were entered between the First Plaintiff and the Defendant on 25 February 2014 [Plaintiff’s exhibit 7].
  2. On page 1 paragraph 1(a) it was agreed that the purchase price for six lots is $522,000 exclusive of VAT and payments was to be made as follows:
  3. The seventh lot being CT30331 was a gift from the Defendant to the First Plaintiff.
  4. Exhibit 11 is the records held by the First Plaintiff’s account section for loan given to the Defendant.
  5. According to the records following payments were made:
  6. A total of $422,000 was paid for the said lots. There is no evidence when and how the balance of $100,000 was paid.
  7. Hence the Plaintiff is not entitled to seek relief for performance of the contract.

Is the First Plaintiff entitled to judgment for $2,508,493.62?

  1. Loan provided by the First Plaintiff to the Defendant from 10 February 2010 are:
Date
Amount
Cheque Ref
04.03.2010
23,000.00
Chq#450 WBC
05.03.2010
10,000.00
Chq#451 WBC
08.03.2010
40,000.00
Chq#452 WBC
26.03.2010
50,000.00
Chq#40506 ANZ
12.01.2011
100,000.00
Chq#131 CNB
10.06.2011
50,000.00
Chq#44675 ANZ
28.07.2011
30,000.00
Chq#759 WBC
09.08.2011
40,000.00
Chq#771 WBC
15.08.2011
200,000.00
Chq#154/155/156/157 CNB
01.06.2012
50,000.00
Chq#934 WBC
31.05.2013
13,194.91
(total interest on loan from June 12 – Apr 13)
30.06.2013
33,930.05
(reclassify interest to amount owed – 30 June 2013)
25.07.2014
25,000.00
Chq#54486 ANZ
18.08.2014
397,000.00
Chq#1714 WBC
16.09.2015
50,000.00
Chq#509 BSP

  1. The sum claimed as interest is not allowed as there is no evidence that for these sum the parties had agreed to payment of interest by the Defendant.
  2. The Plaintiff is entitled to judgment for $1,065,000.00.
  3. Interest is awarded from date of the writ till date of judgment.

Claim by the Second Plaintiff

  1. The Second Plaintiff claims $150,000 for money it paid to the Defendant.
  2. Exhibit 11 shows following payments were made:

Date Amount Cheque ref

21/10/2013 50,000 3802 ANZ

25/02/2014 50,000 3816 ANZ

04/04/2014 50,000 3819 ANZ


  1. There is no evidence of any agreement between the parties under which the Second Plaintiff can qualify to seek remedy for specific performance.
  2. Hence the Second Plaintiff is only entitled to sum of $150,000.
  3. The Second Plaintiff is also entitled to interest on said sum.
  4. However, it is not clear when the Defendant was required to repay the said sum. Hence interest is only awarded from date of the writ till date of Judgment.

Claim for General Damages

  1. Both the Plaintiffs seek orders for general damages. However, no evidence was adduced warranting the court to make any orders for general damages. In any event the orders for award for monies advanced by the Plaintiffs is sufficient award.

Orders

  1. Prayers (a) and (b) of the First Plaintiff’s relief and the claim for general damages is dismissed.
  2. Judgment is entered in favour of the First Plaintiff for a sum of $$1,065,000.00. The First Plaintiff is also entitled interest at 3% from 10th February 2020 till date of Judgment.
  3. Judgment is entered in favour of the Second Plaintiff for $150,000. The Second Plaintiff is also entitled interest at 3% from 10th February 2020 till date of Judgment.
  4. Both parties are also entitled to interest pursuant to Section 4 of the Law Reform (Miscellaneous Provisions) (Death and Interests) Act.
  5. The Defendant shall also pay both the Plaintiffs cost summary assessed at $2,000.

.........................
Vandhana Lal [Ms]
Master Of The High Court
At Suva.

23 July 2024


TO:

  1. Suva High Court Civil File No. HBC 54 0f 2020;
  2. Diven Prasad Lawyers, Solicitors for the Plaintiffs;
  3. South Pacific Agriculture Development Ltd the named Defendant.

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2024/777.html