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Jokhan Realtors Ltd v Byrne [2014] FJMC 132; Civil Action 446.2011 (9 July 2014)

IN THE FIRST CLASS MAGISTRATES COURT
AT SUVA
CIVIL JURISDICTION

Civil Action No. 446/2011

BETWEEN:

JOKHAN REALTORS LIMITED
a limited liability company duly
incorporated in Fiji having its registered office at 15 Mariko Street,
Laucala Bay, Suva.
PLAINTIFF

AND:

JUNE KIM STOKES BYRNE
of Lot 1, Naranji Street, Tamavua, retired.
FIRST DEFENDANT

Plaintiff absent and unrepresented
Mr. Ritesh Naidu for the Defendant

Date of Hearing : 08th July 2014
Date of Judgment : 09th July 2014

JUDGMENT

1. The Plaintiff filed a writ of summon against the defendant seeking following orders inter alia:
   
   • (i) Special damages in the sum of $7,750.00
   • (ii) Interest on the Sum
   • (iii) General Damages and costs
   • (iv) Such further reliefs and orders as this Honorable Court deems fit in the circumstances.
     
2. The defendant filed her statement of defence and counter claim on 02nd November 2011. In this the defendant prayed following reliefs against the plaintiff.
   
   • (1) Judgment against the plaintiff in the sum of $3,664.75
   • (2) Damages as pleaded in paragraphs 20, 21, 22, 23, 25, 26, 27 and 28 hereof up to sum not exceeding $40,000.00;
   • (3) Statutory interest on the judgment sum at 5% per annum from the date of judgment pursuant to Order XXXII Rule 8 of the Magistrates Court Rules;
   • (4) Costs on an indemnity basis (including all travelling and incidental expenses);
   • (5) Further or other relief;
   • (6) The Counterclaim in limited to the monetary jurisdiction of this court.
     
3. Minutes of Pre- Trial conference was filed on 17th September 2013 and in those following facts were agreed by parties .
   
   1. The plaintiff is a limited liability company having its registered office at 15 Mariko Street, Laucala Bay, Suva and engaged in inter alia in the business of buying, selling, renting out and management of real estate.
      
   2. The defendant is the registered property of a freehold property being Certificate of title No: 32177 being Lot 1 on 8213. Constructed on the said property is a concrete residential consisting of 3 bedrooms, large living room, a swimming pool,, 3 bathrooms, 1 staff quarters together with all other amenities (hereinafter referred to as the "said property").
      
   3. That on the 26 of March 2011, the plaintiff and the defendant entered into a property management agreement in respect of the said property (hereinafter referred to as "the said agreement").
      
   4. It was a term and condition of the said agreement that:
      
      • (a) The defendant will pay to the plaintiff 7% of the monthly rental as management fees.
        
      • (b) The plaintiff would collect rent on behalf of the defendant and pay it into the nominated account or the defendant after deducting the agreed commission/management fee.
        
   5. The defendant terminated the said agreement on 26 April 2011.
      
   6. The plaintiff's solicitors advertised the said writ of summons in a local newspaper.
      
4. With consent of both parties the hearing was fixed for 08th July 2014. When this was called for hearing at 09.30am the plaintiff and his counsel were not present. Mr. Naidu who is appearing for the defendant informed the Court that in the morning he received a call from a clerk of the law firm who was representing the plaintiff informing that the counsel for the plaintiff was engaged in arbitration and requested for an adjournment. This was objected by the learned counsel for the defendant . When this was called again at 10.30am the plaintiff was again absent. Mr. Naidu further informed that the defendant has traveled all the way from Australia for this trial and asked to proceed with the hearing. Therefore pursuant to Order XXX rule 2 of the Magistrate Court Rules the writ of summons of the Plaintiff was dismissed and hearing was conducted for the counter claim of the Defendant .
   
5. Ms. Bryne, the defendant gave evidence on behalf of the defendant . She said presently she is living in Australia and got a property at Lot 1, Niranji Street, Tamavua. She entered in to an agreement with the plaintiff to manage her property. According to that agreement the plaintiff has to collect the rent of the property and deposit the rent in to an account nominated by her. The plaintiff was entitled for 07% as management fees. Also the plaintiff has to get the approval of the defendant for repairs of the house. On 28th March 2011 she entered in a lease agreement with the South African High Commission to lease the property for them. The monthly rental was $4000.00 to be paid on 01st day of every month.
   
6. At that time the property was in good condition and in the lease agreement and she agreed the maintenance was her responsibility. The defendant found out later that the plaintiff was not following the conditions in the agreement and alleged to have made some repairs in the property without her approval. Also the plaintiff failed to deposit full monthly rental for April 2011. He failed to deposit $3364.75 as agreed in her account. She also found out after visiting the premises that the plaintiff used inexperienced cleaners and servants and damaged her curtains and she had to incur nearly $1000.00 to replace the curtains . She had to travel twice to Fiji to attend to this case. Therefore the defendant seeks judgment in the sum of $3364.75 and damages for curtains , traveling expenses, interest and cost.
   
7. The defendant marked documents which include agreement with the plaintiff , lease agreement , email corresponds between the parties, photographs, receipts for airfare and accommodations as exhibits whilst giving evidence to substantiate her claim.
   
8. Having considered the evidence as well the documents presented by the defendant I am satisfied that the defendant has proved her claim on balance of probabilities.
   
9. Accordingly I grant the following orders.
   
   1. Judgment in the sum of $3,364.75
   2. Special damages for the curtain in the sum of $1000.00
   100. Interest of 5% per annum from the date of judgment until full payment. (Total sum with the interest not to exceed $50,000)
   4. Cost of $4100.00 summarily determined .
      
10. 28 days to appeal.
    

H.S.P.Somaratne
Resident Magistrate,,