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Kim v Khan [2014] FJMC 151; JDS411.2013 (3 November 2014)

IN THE MAGISTRATE'S COURT
AT SUVA
FIJI ISLANDS
CIVIL JURISDICTION

JDS No. 411 of 2013
SCT Claim # 2092/2013

Between:

Paul Kim
Appellant (Magistrates Court)/ Respondent (Small Claims Tribunal)

And:

Afzal Khan
Respondent (Magistrates Court)/
Claimant (Small Claims Tribunal)

Appellant/ Original Respondent: Nands Law
Respondent in Appeal/ Original Claimant: Mamlakah Lawyers

Ruling

1). Introduction
The Appellant/Original Respondent in this action has appealed the decision of the Referee, dated 18th October 2013 where the Referee ordered that the Respondent pay a sum of $3965.00 within 30 days of the SCT Order.

A JDS was issued on 4th December 2013. The appellant on 19th December 2013 filed a motion for stay and sought to set aside the judgmement. In order that the matter be resolved urgently the parties agreed to appeal be heard and the Court determine the matter. The appeal was out of time in any event. The Notice of intention to appeal and the grounds of appeal were filed on 27th March 2014.

The parties chose to be heard by way of written submissions. They were given time to file the submissions. Both parties have filed submission which has been considered by this Court.

2). The Grounds of Appeal
The Appellant/Original Respondents ground of appeal can be summarized as that the Referee erred in calculating the monies owed by the Respondent, failing to consider the admission of liability to Respondent by the Claimant, failed to consider all matters and exceeded jurisdiction by making an award to release vehicle # EY004 to Respondent within 14 days of the payment being made.

3). The Law
Section 33 of the Small Claims Tribunal Decree 1991 provides that:

"(1) Any party to proceedings before a Tribunal appeal against an order made by the Tribunal under section 15(6) or section 31(2) on the grounds that:

(a) the proceedings were conducted by the Referee in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings; or

(b) the Tribunal exceeded its jurisdiction."

The scope of appeals from SCT is extremely limited. The appeal only lies where it can be said that either the proceedings were conducted in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings or the Tribunal exceeded its jurisdiction. There can be no appeal on merits: Sheet Metal and Plumbing (Fiji) Limited v. Deo – HBA 7 of 1999.

4). Observations

The primary concern of this Court is whether the appellant has met the threshold set out in section 33(1) (a) or (b) of the Small Claims Tribunal Decree. The grounds of Appeal advanced by the Appellant have been reproduced above.

This Court has noted the ground of appeal submitted by appellant. From the records and the file of the SCT this Court finds that the Referee correctly dealt with the matter before him. The Referee relied on the submissions made by the parties in working out the sum of money owed. The Respondent in the SCT agreed to pay the Rent and the freight.

The Referee correctly calculated the sum owing and ordered that the vehicle which was stored at the Claimants place be returned within 14 days of the payment being made. This Court finds nothing wrong with this order as the vehicle was parked with the Claimant for all this while and as soon as the Claimant was compensated the vehicle was to be released to the appellant. The vehicle was in the meantime in the possession of the Claimant. This Order assisted the Appellant to pay and get his vehicle released as he would not have been able to retrieve his vehicle otherwise because the claimant sought storage charges for the vehicle and would release the vehicle on the payment of those charges.

The Appellant should consider himself fortunate to have gone up to this stage as he had been late with the appeal. This Court gave him the opportunity and having assessed everything this Court finds that the Referee fairly dealt with the claim.

For the above-mentioned reasons the appeal is dismissed.

5.) Conclusion

The appellant has not met the threshold set out in section 33(1) (a) & (b) of the Small Claims Tribunal Decree 1991.

For the given reasons given above, the appeal is dismissed. Any party aggrieved with this Ruling has the right to appeal to the High Court within 30 days.

Chaitanya Lakshman
RESIDENT MAGISTRATE

3rd November 2014