Water Authority of Fiji v. Tabua Investments Limited

• Jurisdiction: Fiji
• Judge: Master Ms Vandhana Lal
• Judgment Date: 29 July 2022
• Court: High Court (Fiji)
• Date: 29 July 2022
• Counsel: PLAINTIFF: Mr. D. Sharma with Mr. S. Deo [R Patel Lawyers],DEFENDANT: Ms. M. Tikoisuva [Howards Lawyers],FIRST THIRD PARTY: Mr. V. Sharma [AK Lawyers],SECOND THIRD PARTY: No Appearance [FNPF Legal Services]
• Docket Number: CIVIL ACTION NO.: HBC 71 of 2014

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 71 of 2014

Between:

Water Authority of Fiji

Plaintiff

v.

Tabua Investments Limited

Defendant

and:

Denarau Corporation Limited

First Third Party

and:

Rylestone Limited

Second Third Party

DELIVERED ON: 29 July 2022

RULING BY

Acting Master Ms Vandhana Lal

APPEARANCES/REPRESENTATION:

PLAINTIFF: Mr. D. Sharma with Mr. S. Deo [R Patel Lawyers]

DEFENDANT: Ms. M. Tikoisuva [Howards Lawyers]

FIRST THIRD PARTY: Mr. V. Sharma [AK Lawyers]

SECOND THIRD PARTY: No Appearance [FNPF Legal Services]

To:

1. R Patel Lawyers, Solicitors for the Plaintiff;

2. Howards Lawyers, Solicitors for the Defendant;

3. AK Lawyers, Solicitors for the First Third Party;

4. FNPF Legal Services, Solicitors for the Second Third Party.

INTERLOCUTORY RULING

Defendant's Application to Strike out the Plaintiff's Claim

1. The first application for determination is made by Tabua Investments Limited, the Defendant who via it's summon dated 22 November 2019 seeks orders to have the Plaintiff's writ of summons and statement of claim filed on 07 March 2014 be dismissed and wholly struck out on the ground that it discloses no reasonable cause of action or otherwise is frivolous, vexatious and an abuse of the process of the court.

The application is made pursuant to Order 18 Rule 18 (1) of the High Court Rules.

2. The Plaintiff's claim is summarized as follows:

The Plaintiff is the successor to Public Works Department [PWD] and was vested with the responsibilities of PWD once the Water Authority of Fiji Promulgation 2007 became operational.

The Plaintiff is responsible for the supply of water to properties on Denarau Island [the Island] and it charges for the supply of water using meters to assess the said charges on a regular billing cycle.

PWD was previously responsible for water supply infrastructure that ended at the point of a Master Meter [EG 1–01] located at the Nadi side of the bridge to the Island.

The Island is a private property which was developed, owned and managed by Tabua Investments Limited [the Defendant] who were also responsible for the subdivision of the Island.

The Defendant had used its own contractors to install pipelines within the Island with the Plaintiff to place a Master Meter at the Bridge in order to account for water charges with the Defendant being responsible to pay for all water charges.

The Defendant took the responsibility of managing the water and sewerage reticulation on the Island and had appointed Blueridge Plumbing to implement and monitor all water and sewerage reticulation on the Island.

The Defendant had imposed condition that PWD could not install or touch any of the pipelines on the Island without the consent and permission of the Defendant or Blueridge Plumbing.

When the Defendant commenced selling lots on the Island it allowed the Plaintiff to install individual meters to ensure separate billing was done for the supply of water.

In 2004 Public Works Department asked the Defendant to assist in identifying all the off takes from the reticulation mains within the Island for future billing to all individual consumers.

The Ministry of Works through its Chief Executive Officer informed the Defendant via a letter of 04 August 2004 that the difference in consumption between the individual metered connections and total consumption recorded by PWD Master Meter located at the Island Bridge would be borne by the Defendant.

PWD would then deduct the charges for the individual meters from the reading at the Master Meter with the balance being billed to the Defendant.

The Defendant agreed by a letter of 09 August 2004 with this.

From 30 November 2011 the Plaintiff noticed a substantial usage of water at its Master Meter.

Between November 2011 to 31 August 2013 the amount had accumulated to $552,962.35.

The Defendant has denied it is liable to pay the water charges.

The Plaintiff is seeking judgment for $552,962.35 with pre-judgment interest from 01 September 2013 at 8.5% per annum as well as post judgment interest at 4% per annum together with damages for usage of additional water from 31 August 2013.

3. The Defendant's statement of defence filed on 15 April 2014 can be summarized as follows:

According to the Defendant, PWD was responsible for the supply of water to the Island as a whole and it [the Defendant] has no knowledge of the purpose of the Master Meter [EG 1–01].

The Defendant further denies that it developed, owned and managed the Island. However according to them, when they acquired parts of the Island the other parts were owned and developed by Farleigh Limited; Richmond Limited and Rylestone Limited.

At all material times the infrastructure, common facilities and areas on the Island were and are owned (legally and/or beneficially), managed and maintained by Denarau Corporation Limited [DCL],

The Defendant had subdivided parts of the Island which it developed namely the residential, industrial and commercial precincts and some lots within the hotel precinct.

Accordingly, it had installed pipelines within the residential, industrial, commercial precincts and some lots with the hotel precinct which it had developed.

PWD had installed water meters in each of the precincts to enable it to charge for water usage.

All water, sewerage (and electricity) reticulation and supply are administered, managed and controlled by DCL.

The Defendant denies that it had appointed Blueridge Plumbing to implement and monitor water and sewerage reticulation and that PWD could not install or touch any pipelines on the Island without the consent of the Defendant or Blueridge Plumbing.

According to the Defendant the individual owners of the property on the Island are liable for their own water usage and as such PWD was responsible to ensure all property on the island was metered for water usage and the owners were paying for their water usage.

The Defendant admits over a period of time individual properties had metered connections for separate billing. It also had separate water meter connections for which it regularly paid the rates for water supplied.

The PWD undertook an audit of metered connections on the island and had sought the Defendant's assistance to identify the same. According to the Defendant, PWD in exercise of its statutory duty and function ought to have kept records of all such water meters connected on the Island.

The Defendant denies that any concluded agreement was reached on the letter of 04 August 2004 and any reference in the letter to the issuance of “an account for the difference in consumption between the PWD master meter located at bridge and the sum of all individual metered connections within Denarau” was merely a proposal to facilitate the audit of the consumption of the water on the Island as around 04 August 2004 there were already 73 individually metered connections on the Island.

The Defendant did not agree to any proposal and has not assumed any responsibility or obligation to pay the said difference.

Between 2009 to 2011 the Defendant met with the Plaintiff on multiple occasions during which the Plaintiff was made aware of the illegal tapping-off water by other individuals and business enterprises. The Plaintiff failed to take any action regarding this.

4. In reply the Plaintiff referred to letter of 04 August 2004 which indicated that both parties had a meeting on 02 August 2004.

In a letter dated 30 September 2013 solicitors for DCL informed that:

• - The Defendant were the initial developer of the Island;

• - The Defendant originally owned and controlled, DCL;

• - The Defendant was making payments to PWD in respect of the Master Meter until December 2005;

• - Around November 2011 the Defendant existed DCL;

• - DCL is now owned by the owners of land on the Island;

• - DCL manages, control and administers the Island on behalf of the shareholders;

• - DCL was never the owner or developer of the Island;

• - DCL never assumed the liability of the Defendant;

• - DCL did not assumed the role of developer from the Defendant when the Defendant existed DCL.

The Plaintiff had investigated into the allegation of illegal tapping-off water but found there was no substance to the allegation.

5. Order 18 rule 18 (1) (a), (b) (c) and (d) of the High Court Rules reads;

• (1) The court may at any stage of proceeding order to be struck out or amended any pleadings or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that –

  • (a) It discloses no reasonable cause of action or defence, as the case may be;

  • (b) It is scandalous, frivolous or vexations;

  • (c) It may prejudice, embarrass or delay the fair trial of the action;

  • (d) It is otherwise an abuse of process of the court,

    and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”

6. Sub rule 2 states that “no evidence shall be admissible on an application under paragraph (1) (a)”.

7. In Lindon v Commonwealth of Australia (No. 2) [1996] HCA 14; 70 ALJR 541; 136 ALR 251 Kirby J outlined applicable principles for summary relief of striking out and these are:

1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided (General Steel Industries Inc v Commissioner for Railways (NSW) (1967) 112 CLR 125 at 128f; Dyson v Attorney-General (1911) 1 KB 410 at 418);

2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action (Munnings v Australian Government Solicitor (1994) 68 ALJR 169 at 171f) or is advancing a claim that is clearly frivolous or vexatious (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91);

3. An opinion of the Court...