Jones v Chatfield [1991] FJHC 42; Hbc0007d.90s (4 July 1991)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 7 OF 1990

IN THE MATTER of the Reciprocal Enforcement of Judgments Act Cap 39.

AND IN THE MATTER of a judgment of the High Court of New Zealand Registry
obtained in Civil Proceedings No. 580/87.

BETWEEN:

PETER ERNEST JONES
of Fiji, Company Director and
ALGAR KEITH TOZER
of Auckland, Chartered Accountant.
Plaintiffs

AND

MAURICE LEICESTER CHATFIELD
of Auckland, Company Director,
RICHARD ERNEST YATES
of Auckland, Company Director and
WARWICK GEORGE MATHIESON
of Fiji, Company Director
Defendants

Mr. A. Mishra: For the Plaintiffs
Mr. J.G. Singh: For the Defendant, Warwick George Mathieson

Date of Hearing: 8th May 1991
Date of Ruling: 4th July 1991

RULING ON APPLICATION FOR STAY OF EXECUTION ON JUDGMENT

The relevant facts of this matter have been set out in my judgment of the 5th of September 1990 wherein I ordered the registration in Fiji of a judgment of the High Court of New Zealand dated the 12th of October 1989 against the Defendant, Warwick George Mathieson for the total amount of $274,109.69.

The Defendant, Mathieson, whom I shall henceforth refer to "as the Defendant" has appealed to the Court of Appeal against my judgment and seeks a stay of execution on it pending the hearing of the appeal.

The Summons for the stay of execution was issued on the 18th day of November 1990 but there followed a number of adjournments and the issuing by the Defendant of a further Summons on the 15th day of March 1991 seeking orders that certain parts of two affidavits sworn by the First Plaintiff on the 3rd of December 1990 and 19th of February 1991 be struck out. I gave my ruling on the last-mentioned Summons on the 4th of April 1991 but did not commence the hearing of the substantive Summons until the 8th of May 1991. By then various affidavits had been filed on behalf of the parties and I shall refer to parts of these during the course of this ruling.

The granting of a stay of execution of any judgment pending an appeal is always a matter for the discretion of the Court and can be given either absolutely or for such period and subject to such conditions as the Court thinks fit. The grounds on which the Court can exercise this power are either that there are special circumstances which render it inexpedient to enforce the judgment or order for payment of money or that the Applicant is unable from any cause to pay the money.

In seeking a stay in the present case the Defendant relies primarily on three grounds: first, that this case is novel with very few precedents which could assist the Court and so is something in the nature of a test case; secondly, that he will suffer great injustice if his appeal is not allowed to proceed without imposing very onerous requirements which weigh against his means as deposed to by him; thirdly, that the judgment obtained by the Plaintiff is not one on the merits as such. It is a creature of statute.

It is convenient to deal with the last ground first. I do not accept either this ground or the submission made by counsel for the Defendant on it. In my view this submission ignores the effect of Section 4 of the Reciprocal Enforcement of Judgments Act Cap 39. Far from being merely a creature of statute as the Defendant claims I consider it clear on high authority, if there were any doubt about it, that when a foreign judgment is registered in Fiji it has the same force and effect as if it were a judgment of this Court. In Wagner v. Laubscher Bros. (1970) 2 Q.B. 313 at page 317 Lord Denning M.R. said:

"I would say, quite simply, that when a foreign judgment is registered here in England, we should give it the self-same force as we would an English judgment. Under this reciprocal arrangement, we expect the courts of foreign countries to give effect to the judgments of our courts. We should likewise give effect to theirs."

Similar views were expressed by Sachs L.J. at page 319 and Phillimore L.J. who said of the judgment there in question, which was of a superior Court of the Federal Republic of Germany, that:

"It is a judgment which is not lightly to be interfered with."

In my judgment similar comments apply to the judgment of the High Court of New Zealand registered here in this case. Unless special circumstances can be shown to the satisfaction of the Court the Plaintiffs are entitled to the fruits of their litigation. I therefore reject this ground for a stay.

At this point I can also deal speedily with the first ground argued by the Defendant. It is possible as the Defendant contends that this case is novel and without any apparent precedents but that of itself does not constitute a special circumstance in my opinion to justify a stay of execution. The law reports are full of "first-time cases" many of which no doubt go on appeal but I fail to see why that should operate as a bar to the registration here of a judgment of the High Court of New Zealand in the circumstances of this case. The fact is that the Defendant took no part at all in the actual hearing of the case before Mr. Justice Fisher in New Zealand. There is nothing to suggest that he did not have every opportunity to defend himself in those proceedings, a matter which I mentioned at pages 12 and 13 of my judgment of the 5th of September 1990. If the Plaintiffs had obtained a Fijian judgment and the Defendant had taken no steps to oppose the entry of it I am certain that a Court here would under no circumstances grant a stay of execution unless there were other compelling reasons which could excuse the Defendant's conduct and entitle him to the relief he now seeks. In my view it is pertinent in an application of this nature to consider the conduct of the Defendant in the country in which the judgment was obtained against him. For these reasons I also reject this ground for a stay.

That leaves me with what I regard as the major ground submitted by the Defendant namely his alleged impecuniosity. On this question, speaking for the House of Lords in M V Yorke Motors (a firm) v Edwards (1982) 1 ALL E.R. 1024, Lord Diplock at page 1027 listed what he considered to be the proper limitations on the application of poor circumstances as a ground for a stay as follows:

"(i) Where a defendant seeks to avoid or limit a financial condition by reason of his own impecuniosity the onus is upon the defendant to put sufficient and proper evidence before the Court. He should make full and frank disclosure.

(ii) Not relevant.

(iii) A defendant cannot complain because a financial condition is difficult for him to fulfil. He can complain only when a financial condition is imposed which it is impossible for him to fulfil and that impossibility was known or should have been known to the Court by reason of the evidence placed before it."

In the instant case, both of his own accord and to some extent at my prompting, the Defendant has put on record in a number of affidavits what he claims to be his present financial position. The Plaintiffs however argue that the Defendant has not made the full and frank disclosure required by the law and I shall now deal with the Defendant's claims as to his financial status. I have mentioned earlier that the Summons for a stay of execution was issued on the 18th of November 1990. The Defendant admits however that on the 14th of December 1990, less than a month after he had issued the Summons, he paid the sum of $83,000.00 to one Ruth Vera Mathieson as the amount of a loan of $44,000.00 with interest at the rate of 15 percent per annum as repayment on an outstanding mortgage allegedly given by Ruth Vera Mathieson for the purchase of shares in a company called Tailevu Pastoral Co. Ltd. The Defendant says that the principal fell due on the 30th day of November 1989 and was repaid with interest barely one and a half years later. He does not claim that the amount paid was due under any judgment, nor does he exhibit to any of his affidavits a copy of the share transfer nor of any Reserve Bank of Fiji permission under the Exchange Control Act Cap 211, nor of any mortgage documents, for the payment out of Fiji of this amount. Likewise he does not even say who Ruth Vera Mathieson is or why she should be given any preference over the Plaintiffs in the payment of money owing by the Defendant. The only information about Ruth Mathieson is given not by the Defendant but in the Affidavit in Reply of the First Plaintiff sworn on the 19th of February 1991. Exhibited to that affidavit is a copy of a company search of Mathieson Motors and Industries Ltd. which shows her as a Director of that company. In my view if the Defendant wished the Court to believe his statement about this payment he should have done much more than he has and not simply asserted that the money has been paid. In my view he is duty bound to "condescend to particulars" as it is some times said and I consider he has not done so. Similar comments apply to his statement in paragraph 4 of his affidavit of 23rd of April 1991 that he is currently drawing $200.00 per week from his account in Tailevu Developments Limited. He says, "the current account is an accumulation of moneys in excess of drawings that have been credited to my current account with the company after an annual remuneration has been determined" but fails to mention what his annual remuneration is or who determines it.

In paragraph 5 of this latter affidavit he states that he has paid $41,486.00 as his share of the judgment in the New Zealand Court but produces no proof of this. Indeed the Plaintiffs dispute this allegation. According to a letter dated the 13th of February 1991 from the Plaintiffs' former solicitors in New Zealand, as at that date the Defendant had not paid his liability under the judgment, but of course he may have done so since. However, if he had, I would expect him to produce proof of this payment in the form of a copy Bank Draft if it were paid in this manner and certainly evidence that the Reserve Bank had given its permission to the payment out of the country. The Defendant has provided no such proof.

It was said in John Fong v John T. Polotini and Another (1974) 20 F.L.R. 15 at page 18 that the only ground, as a general rule, for a stay of execution, is an affidavit showing that if the appeal were successful then there would be no possibility of getting back any costs or damages which had been paid to the other party.

It is possible I think that this statement is too wide but certainly a very relevant factor which a Court must consider in a matter such as this is whether if the appeal is successful it will turn out to be nugatory because of the Plaintiffs' financial inability to repay to the Defendant any sum which the Court of Appeal might subsequently direct them to repay. Here, despite three affidavits filed by the Defendant, he has not once adverted to this question. In my view he should have.

In M V Yorke Motors v Edwards (supra) at page 1028 Lord Diplock referred to the situation which had developed in England over the years of debtors being able to disadvantage creditors by simply delaying payment of their debts, thus taking advantage for themselves of inflation and high interest rates. At the end of his judgment Lord Diplock said:

"The greater premium now accruing to the debtor who manages to achieve delay is an important causative factor in the change in practice recorded in the same paragraph in the Supreme Court Practice: 'The condition of payment into Court, or giving security, is nowadays more often imposed than formerly....' This is a statement that my own experience, extending over half a century, can confirm."

In the later case of Rosengrens Ltd v Safe Deposit Centres Ltd (1984) 3 ALL E.R. 198 Lord Donaldson M.R. endorsed Lord Diplock's remarks at page 199.

All of these matters leave me with the abiding impression that the Defendant has not been completely frank with the Court as to his means of satisfying the judgment. He is a businessman and one might therefore think, a person with access to borrowing facilities. He has not stated whether he has made any attempt to obtain a loan of the money due under the judgment as he may have been expected to do.

The Plaintiffs allege that the Defendant by his actions is now attempting to frustrate enforcement of the judgment. I am not satisfied on the material before me that he is not. I therefore dismiss his application for a stay of execution and order that within 21 days he pay into this Court by way of security the sum of $$274,109.69 being the total amount due on the judgment registered in this Court. I also order that the Defendant is to pay the Plaintiffs' costs of this application.

John E. Byrne
J U D G E

HBC0007D.90S