Fresh Fish Exporters (Fiji) Ltd v Wasawasa Fisheries Ltd [1996] FJHC 124; HBG0004d.1992s (28 June 1996)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ADMIRALTY ACTION NO. 4 OF 1992

Between:

FRESH FISH EXPORTERS (FIJI) LIMITED
Plaintiff

- and -

WASAWASA FISHERIES LIMITED
Defendant

Mr. R. Smith for the Plaintiff
Dr. Sahu Khan for the Defendant

DECISION

This is Plaintiff's summons dated 6 May 1996 seeking an order that the judgment delivered herein on 25 March 1996 be stayed.

The defendant opposes the application.

The Plaintiff has filed in the Fiji Court of Appeal a Notice of Appeal dated 6 May 1996 appealing against the judgment herein as contained in paragraphs (a), (b) & (c) at pages 26-27 thereof which reads as follows:-

(a) That upon payment by the Plaintiff to the Defendant within six weeks from this judgment the sum of $235,000 which was required to be paid by the Plaintiff under item 3.2(a) of the Agreement dated 25 August 1989 the possession of the vessel "Sunbird" and its immediate transfer in the name of the Plaintiff is ordered AND if default is made in the said payment the agreement shall be deemed to have been rescinded and the Defendant shall do what it likes with the vessel.

(b) That upon payment of the said sum of $235,000 the Defendant do give credit to the Plaintiff for the sum of $5000 per month paid to Fiji Development Bank for 30 months or whatever sum has been paid in this manner towards the purchase price of the said vessel to fulfil the requirements of item 3.2(b) of the said agreement.

(c) That the Plaintiff is not entitled to damages for the alleged unlawful detention as the Plaintiff had itself failed to comply with the payment of $235,000 under item 3.2(a) of the agreement whilst it made full use of the vessel by doing business with it and not accounting to the defendant or anyone else for the proceeds from the said business.

Mr. Smith submits that unless a stay is granted, the appeal, if successful, will be rendered nugatory.

He says that although the Plaintiff has not complied with item (a) of the judgment by paying the sum of $235,000 to the defendant by 6 May 1996 it wants to appeal, inter alia, against that part of the judgment where it says it is open to the defendant to "do what it likes" with the ship "Sunbird". In the circumstances the Plaintiff does not want the ship to be sold or dealt with in any manner until the appeal is heard. It wants the status quo to be preserved. The defendant has been and is still operating the ship so there is no prejudice to the defendant if stay is granted.

Mr. Smith further submits that there are "special circumstances" in this case to grant the stay which is a discretionary power vested in the Court.

Dr. Sahu Khan while opposing the application says that neither is there anything to stay nor to execute. He asks, is the Plaintiff in a position to pay damages for there is no undertaking as to damages? He says that there is no local director left in the country.

In reply Mr. Smith said that there is an order in existence and its execution will have the effect of rescinding the agreement and therefore he says, the Plaintiff is entitled to a stay to prevent that occurring. He goes on to say that, as Dr. Sahu Khan says there is "nothing to stay", then "a stay will cause no harm" to the defendant.

The granting or refusing of stay is in the absolute and unfettered discretion of the Court; and the Court will, as a rule only grant a stay if there are special circumstances. (HALSBURY 4th Ed Vol. 17 p.272 para 455). An example of "special circumstances" is that an appeal would be nugatory if stay was refused (WILSON v CHURCH (No. 2) [1879] UKLawRpCh 233; (1879) 12 Ch.D 454, C.A.) or if payment of a judgment debt destroys the substratum of the appeal (METROPOLITAN REAL and GENERAL PROPERTY TRUST LTD v SLATERS and BODEGA LTD (1941) 1 A.E.R. 310, C.A.)

On the affidavit evidence before me and on the submissions by counsel I find that there are "special circumstances" in this case. There is a Court order requiring the Plaintiff to pay the sum of $235,000 and if it is not paid then certain consequences flow; and it is the impact of this part of the judgment which is the gist of the appeal. The refusal of the application will no doubt render the appeal nugatory.

I do not accept Dr. Sahu Khan's argument that there is "nothing to stay" and "nothing to execute". What about the judgment and the Orders made therein? The answer to some extent lies in the following passage from the judgment of the Fiji Court of Appeal in K R LATCHAN BROS LTD v SUNBEAM TRANSPORT AND 2 ORS, CIV APP. Nos. 45, 51, 57, and 61 of 1983 at page 8 while discussing the general principles in regard to stay pending appeal:

"All the cases annotated under Order 59/13, and indeed the wording of (Rule 25) 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 should not be rendered nugatory. In the absence of a stay, money may be paid over, which given a reversal on appeal might be irrecoverable; An occupier of land might be dispossessed and buildings demolished; accounts might be taken which need not be revealed; the holder of patent or the proprietor of a secret process might be required to submit to inspection and so on. All these are positive steps which are encompassed by the words 'execution or proceeding' flowing as a consequence of a judgment ..."

Although this may not be a case that the Plaintiff "will be ruined" if stay is refused (LINOTYPE - HELL FINANCE LTD v BAKER 1992 4 AER 887) he has raised the point that certain serious consequences will flow if it is successful bearing in mind the triable issues raised by it.

In the exercise of its discretion the Court does a balancing exercise. On the one hand I have the defendant which has had the ship for sometime and has been and is still operating it and is entitled to all the proceeds and has nothing whatsoever to loose if the application is granted. In other words it will not be prejudiced at all. The business is as usual for it. On the other hand I have the Plaintiff which is dissatisfied with the judgment and has appealed, and if successful, it may not have to pay the said sum of $235,000 as ordered by me.

Therefore, since the defendant will not be prejudiced and considering the competing claims and interests of the parties, the balance of convenience dictates that there ought to be a stay pending the determination of the appeal.

For these reasons, in the exercise of my discretion I grant the stay of the orders sought by the Plaintiff until the determination of the Appeal but that it shall have the question in the appeal, so far as in it has, decided at the earliest possible opportunity by the Fiji Court of Appeal.

The Plaintiff is to pay the costs of this application to the Defendant to be taxed if not agreed.

D. Pathik
Judge

At Suva
28 June 1996

HBG0004D.92S