Philp v Tipouniua [1991] FJHC 1; Hbc0092d.77s (22 August 1991)

Fiji Islands - Philp v Tipouniua - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 92 OF 1977

BETWEEN:

:

COLIN ERNEST PHILP
Petitioner / Applicant

AND:

ANA FRANCISCA TUPOUNIUARespondent

Mr. eetman for the Pthe Pehe Petitioner/Applicant
Ms. P. Wilson for the Respondent

RULING

On the 9th of October 1990 Palmer J. (as he then was) delivered judgment in this action awarding the respondent the sum of $30,000 together with costs to be taxed if not agreed. The order was subsequently entered and sealed on the 26th of October 1990.

The respondent however was not satisfied with the sum awarded her and on the 1st of November 1990 a Notice of Appeal was filed appealing against the judgment of Palmer J. The petitioner for his part cross-appealed against the excessiveness of the amount awarded by a Notice filed on the 6th of December 1990.

Thereafter by an inter partes summons issued on the 21st of January 1991 the petitioner sought an order for a stay of execution pending the final determination of the appeal and cross-appeal lodged against the judgment of Palmer J.

The summons for stay first came before Byrne J. on the 1st of February 1991 and although both parties were represented by counsel the Court was unable to hear the application and the matter was adjourned to the 6th of February before the Chief Registrar to fix a new hearing date and a "stay of execution (was) granted until determination of the application".

On the 6th of February neither party appeared before the Chief Registrar and the summons was "... adjourned sine die".

It was not until 6 months later that the respondent (not the petitioner as might be expected) by a summons dated the 31st of July 1991, sought to have the petitioner's application for a stay of execution determined.

The petitioner's application for a stay of execution was finally heard on the 2nd of August when Ms. P. Wilson appeared for the respondent and Mr. B. Sweetman appeared for the petitioner.

At the hearing Mr. Sweetman relied primarily on 2 grounds in support of his application for a stay of execution.

The first, was the probability of the funds being dissipated whilst the appeals were pending and secondly, the fact of the respondent being a non-resident of Fiji.

In particular, Mr. Sweetman submitted that it was clear from the evidence before the Court that the respondent was not a "woman of means" and if the money was released to her and she took it out of the Court's jurisdiction there was every likelihood that in the event of the cross-appeal succeeding the petitioner would not be able to recover the money. Reference was also made to cases mentioned in the Notes to Order 59 Rule 13 of the 'White Book'.

Ms. Wilson for the respondent argued that it was not for the petitioner to seek at this stage to prejudge the Appellate Court's decision and in any event there exists provision for the reciprocal enforcement of judgments between Fiji and Tonga where the respondent normally resides.

Ms. Wilson also submitted that the present application by the petitioner was a further attempt in a continuous course of conduct by the petitioner (who could well-afford to pay the sum awarded) to withhold payment to the respondent of her just entitlement under a sealed judgment of this Court.

The power of this Court to grant a stay of execution is inferentially to be found in Rule 25(1) of the Court of Appeal Rules Cap. 12 which reads:

"(1) Except so far as the Court below or the Court of Appeal may otherwise direct-

(a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the Court below;

(b) no intermediate act or proceeding shall be invalidated by an appeal."

Of this rule the Fiji Court of Appeal said in K.R. Latchan Bros. Ltd. v. Sunbeam Transport and 2 Others Civil Appeal Nos. 45, 51, 57 and 61 of 1983:

"Rule 25 is in identical terms to Order 59 Rule 13 of the Supreme Court Rules in England. Extensive notes in the White Book (1967) Vol. 1 at 770 illustrate the wide variety of cases where a stay may be granted.

All the cases annotated under Order 59/13, and indeed the wording of the two Rules contemplate delaying some action which would have flowed from the decision. Stay of such action may be granted pending an appeal so that, if successful, the result shall not be rendered nugatory. In the absence of a stay, money may be paid over, which given a reversal on appeal might be irrecoverable ... accounts might be taken which need not be revealed; ... all these are positive steps which are encompassed by the words 'execution or proceedings' flowing as a consequence of a judgment ..."

In my view the principle to be applied in the exercise of the Court's unfettered discretion in the matter must be one rooted in justice and fairness to all parties bearing in mind that a successful litigant ought not to be lightly deprived of the fruits to which he or she is prima facie entitled. Equally, this Court ought as far as fairly possible to see that an appeal, if successful, is not frustrated by any order the Court may make at this stage of the proceedings.

Accepting that the mere lodgment of an appeal does not operate as a stay of execution, nevertheless, in the particular circumstances of this case where both parties are seeking to set aside the judgment of Palmer J. (albeit for different reasons), it would be incongruous and unfair for this Court to refuse a stay of execution.

The petitioner's application for a stay of execution is accordingly granted on condition that he pay the sum of $30,000 into Court to be invested as a term deposit until such time as the appeals in this matter are finally disposed of.

D.V. Fatiaki
JUDGE

At Suva,
22nd August, 1991.

Hbc0092d.77s