Car Rentals Pacific Ltd v Lal [1992] FJHC 13; Hbc0076d.91s (6 March 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 76 OF 1991

Between:

CAR RENTALS PACIFIC LTD.
Plaintiff/Respondent

- and -

1. JITENDRA CHAND LAL
2. DINESH PRASAD
Defendants/Applicants

Mr. J. Howard for the Plaintiff
Mr. R. Chand for Mr. H.A. Shah for the Defendants

RULING

On the 18th of June 1991 judgment in default of defence was entered against the defendants "... in the sum of $20,000 (Twenty thousand dollars) and $60 (Sixty dollars) costs". At this point I observe that there was also a claim for 'Loss of earnings' which has not been included in the plaintiff's sealed judgment and therefore presumably remains extant.

Then on the 26th of September 1991 the defendants' application to set aside the default judgment was dismissed with costs. The Court delivered written reasons for its dismissal on the 15th of November, 1991.

The defendants now seek a stay of execution of the default judgment pending the determination of an appeal presumably lodged against the dismissal by this Court of the defendants summons to set aside the default judgment.

By the Court of Appeal Rules such an application must be made in the first instance to the High Court [See: Rule 26(3)] and in such an event the Court is given an unfettered discretion to direct a stay of execution (See: Rule 25).

It is noteworthy that no affidavit was filed by the defendants setting out grounds for seeking a stay of execution and/or annexing their Petition of Appeal (if any) as one would have expected.

In the result learned counsel for the plaintiff not unreasonably complained at the hearing of the application that he was somewhat taken by surprise and an adjournment was granted to enable counsel to fully consider the defendants written submissions and respond in kind.

In his written submissions learned counsel for the defendants raised 2 "grounds" in support of the application as follows:

(1) "... that the judgment entered against the defendants cannot be said to be regular for a simple reason; that is the plaintiff's claim was not based on a liquidated amount;"

and

(2) "that the execution of (the) judgment could have serious consequences. A default in payment upon a Judgment Debtor Summons could see him in prison; non payment of the judgment sum could see him in a Bankruptcy Petition and Writ of Fifa."

The first, (if I understood learned defence counsel's argument) is a 'ground of appeal' and is based on the wording of Order 13 Rules 1 and 10 of the High Court Rules. Learned counsel for the plaintiff however submits that its claim is based on a 'liquidated amount' having regard to the meaning of the phrase in Order 6 Rule 2 of the High Court Rules.

It is unfortunate that this issue was not first raised in this Court as a ground for setting aside the default judgment but in any event it would be improper for this Court at this stage to pre-empt in any way the arguments of counsel or indeed the decision of the Court of Appeal on the matter.

Suffice to say that this ground appears to raise an arguable point of some merit having regard to the judgment of the Fiji Court of Appeal in Motor Corporation and 2 Others v. Rajendra Prasad and Vimal Prasad, Civil Appeal No. 12 of 1984 in which the Court in orally setting aside a default judgment entered for "liquidated damages" for the value of a car and for lost income, said at p.2 (of the cyclostyled judgment):

"We were told from the bar by Mr. Morgan that counsel instructed by him was in attendance with witnesses to contest the amounts claimed but the judge seems to have treated these two items as liquidated sums. If this was so he was clearly wrong. They required proof and if judgment had been entered (and we do not believe it was), then we would allow the appeal."

The defendant's second ground touches on a matter which has long been recognised is a relevant factor in considering of whether or not to stay execution of a judgment and which is that "when a party is appealing, exercising his undoubted right of appeal, the court ought to see that the appeal, if successful, is not rendered nugatory ..." [See: Wilson v. Church (1879) 12 Ch.D. 459.]

Learned counsel for the respondent on the other hand submits that the plaintiff company is a substantial local corporation with a strong financial background which would enable it to refund any monies received from the defendants in the event that they should succeed in their appeal.

Conversely in my view, the plaintiff company is more able to forego the "fruits of its success" than perhaps an uninsured self-employed taxi driver could. Furthermore the plaintiff company does not claim or appear to have suffered any untoward prejudice from its inability to execute its judgment up till now.

Needless to say if execution were allowed to proceed or continue then the serious consequences to the liberty of the defendants so vividly outlined in the submission of learned counsel for the defendants could well eventuate. It need hardly be said that the occurrence of such an event would be irreversible even if their appeal should eventually succeed.

I have also considered the alternative argument of counsel for the plaintiff that this court has power to vary the default judgment to one 'for damages to be assessed' but mindful that the plaintiff itself was responsible for the original form of the default judgment and having regard to the defendants grounds of appeal such a course would be inappropriate.

In all the circumstances in seeking as best I can to balance the competing interests of the parties and bearing in mind the principles enunciated by the Fiji Court of Appeal in K.R. Latchan Bros Ltd. v. Sunbeam Transport and 2 Others Civil Appeal Nos. 45, 51, 57 and 61 of 1983, I grant the defendants application and order a stay of execution of the default judgment entered in this matter on the 18th of June, 1991 pending the final determination of the defendants Appeal.

(D.V. Fatiaki)
JUDGE

At Suva,
6th March, 1992.