Buksh v Pacific Timber Developments Ltd [1997] FJHC 239; Hbc0409x.94s (15 October 1997)

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

CIVIL ACTION NO. HBC0409 OF 1994

BETWEEN:

KARIM BUKSH
(f/n MADAR BUKSH)
of 1 RAGG AVENUE,SUVA
PLAINTIFF

-v-

PACIFIC TIMBER DEVELOPMENTS LIMITED
DEFENDANT

Plaintiff in person.
I. Fa for the Defendant

Dates of Hearing and
Submissions: 13th, 28th and 29th August 1997
Date of Ruling: 15th October 1997

RULING ON DEFENDANT'S APPLICATION FOR STAY
OF EXECUTION PENDING APPEAL

The facts of this matter are set out in my Interlocutory Judgment of 25th April 1997 and I shall not repeat them here.

At page 10 of my judgment I stated:

"It is now trite law that once a Defendant shows that he has some serious claim to resist an application under Section 169 an Order should not be made against it. However in my judgment if, as the Defendant claims, it has at all times been ready and willing to proceed with the purchase it should now provide tangible evidence not only of its willingness but also its ability to pay the balance of the purchase money."

Later on the same page and on top of page 11 I said:

"In my judgment it would be fair, and I now order, that the Defendant should pay into Court within 14 days of the delivery of this judgment the sum of $180,000.00. This is based on the Demand Notice to the Plaintiff of 23rd June 1994. On my own calculation it would appear that as at 24th October 1996, the date of the Plaintiff's last submission, the amount owing to the Bank is approximately $187,000.00. Allowing for any possible errors I will take this figure to be $180,000.00 to be paid into the Court within 14 days of this judgment. If that sum is not paid in then the Plaintiff will be at liberty to apply for further orders."

On the 12th of May 1997 the Defendant issued a Summons seeking leave to appeal from my judgment. It was supported by an affidavit of Greig Joseph Hill a Director of the Defendant who states in paragraph 3:

"That a stay of the said orders is necessary pending the hearing of the said appeal to ensure that irremediable damages is (sic) not occasioned to the Defendant."

The hearing of the Defendant's Summons was adjourned on various dates in the hope that the parties might reach a commercial solution to their dispute. But according to the Defendant's solicitors in their written submission dated 28th August 1997,

"It is unlikely that such a solution would be reached due to the divergent positions held by the parties."

The basis of the Defendant's grounds of appeal is that it claims it has shown sufficient cause in accordance with Section 172 of the Land Transfer Act for the Plaintiff's Summons to be dismissed. The Defendant therefore submits that the matter should proceed by way of Writ of Summons which would give both parties an opportunity to resolve "dispute of facts and other legal issues that arise from them".

I have no doubt that such a course would play right into the hands of the Defendant and give it what would probably be at least another twelve months before the action was set down for trial leaving the Plaintiff presumably to remain out of pocket while the Defendant remains in possession of the Plaintiff's property. In my view this can not be right or equitable. Reading the Defendant's submission and the various affidavits of the Defendant sworn by Greig Joseph Hill I am left with the view that all the Defendant wants is just for itself without any concern for the losses currently being sustained by the Plaintiff.

For example in paragraph 3 of his affidavit sworn on the 9th of May 1997 in support of the Defendant's Summons for Stay of Execution pending appeal he says that a stay of my order is necessary to ensure that irremediable damage is not occasioned to the Defendant. It seems to me clear from that statement that the Defendant's attitude is simply "Pity the poor Plaintiff!"

It seems to me that the Defendant is under a misapprehension as to the effect of my orders of the 25th of April. The effect of those orders is to allow a trial of all the facts in issue including whether there has been any waiver by the Plaintiff of his rights under the Contract of Sale. Here I repeat what I said on pages 7 and 8 of my judgment:

It is submitted that the Defendant is ready and willing to proceed with the Contract and paragraph 13 of the affidavit filed on behalf of the Defendant sworn by its General Manager Greig Joseph Hill on 11th November 1994 is cited to support this claim.

In my judgment this statement can hardly be supported on the facts as they are known and not disputed by the Defendant. No where in its submissions does the Defendant through its counsel deny the statement made on p.12 of the Plaintiff's first submission that as at 26th August 1995 the Fiji Development Bank had made a demand for $162,648.31; nor could it in my view because of paragraph 4.4 of the Defendant's submission that the Defendant had substantially paid out the liability to the Bank until July 1993."

In my view it is very arguable in this case that the Defendant purchaser is not ready and willing to carry out the Contract but is using this Court's process purely as a means of gaining time.

I remain unpersuaded that the amount which I ordered the Defendant to pay into Court is unreasonable.

As to ground 7 of the proposed Notice of Appeal my only comment is that no where in my order have I denied the Defendant the right to adduce further evidence or to cross-examine the Plaintiff on his affidavit evidence. Provided the Defendant complies with my order there will be a full trial on all issues of fact and law as I would have thought would have been obvious to any reasonable person.

I therefore refuse the Defendant's application for stay and I order it to pay whatever costs may be due to the Plaintiff under the rules of this Court. That of course may well turn out to be an empty order given the past history of the Defendant's inability to pay instalments under the Contract.

JOHN E. BYRNE
J U D G E

Cases cited:

No cases cited in ruling.

The following cases were mentioned in submissions:

Public Service Commission and Permanent Secretary for Education v. Epeli Lagiloa Civil Appeal No. ABU0038 of 1996.
HC16/94 Westpac Banking Corporation v. Fiji Forest Sawmilling Company Limited.

HBC0409X.94S