Carpenters (Fiji) Ltd v Karan [1998] FJHC 184; Hbc0247d.95s (26 May 1998)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 247 OF 1995

Between:

CARPENTERS (FIJI) LIMITED
Plaintiff

and

VIRENDRA KARAN
s/o Ram Karan
T/A VIRENDRA MOTOR REPAIRS
Defendant

Mr. H. Lateef for the Plaintiff/Respondent
Ms. Tamara Jayatilake for Defendant/Applicant

DECISION

This is the defendant's summons seeking an order that all further proceedings and execution of the judgment delivered in this action on 10 December 1997 be stayed pending the finalization of the his Appeal to the Fiji Court of Appeal.

In support of the summons an affidavit has been filed which does not say anything of much relevance except that Notice of Appeal No. 5 of 1998 dated 21 January 1998 is attached.

Mr. Lateef says that if the defendant deposits 50% of judgment amount which is about $20200.00 he would consent to the application.

Ms. Tamara says that the defendant is unable to pay anything.

Apart from the Grounds stated counsel for the defendant has not made any submissions to persuade the Court to make the order sought. There is no other material before me to rely upon. The Defendant had, exercising his right, neither appeared at the trial nor gave evidence.

The filing of Notice of Appeal in itself does not operate as a stay. There is no undertaking that the defendant will take all reasonable steps to expedite the Appeal as at the time of the hearing of this Summons no application for the nature and amount of the security had been made and which 'shall' be done within 30 days of service of the Notice of Appeal (Rule 17, Court of Appeal Act Cap. 12).

On the principles applicable for a stay of execution pending appeal DAWSON J in FEDERAL COMMISSIONER OF TAXATION v MYER EMPORIUM LTD (No. 1)(1986) [1986] HCA 13; 160 CLR 220 at 222-3 said:

"It is well established by authority that the discretion which it confers to order a stay of proceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal: see, e.g. The Annot Lyle (1886) 11 P.D.114, at p.116; Scarborough v. Lew's Junction Stores Pty. Ltd. [1963] VicRp 20; [1963] V.R. 129, at p.130. Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory: see Wilson v. Church (No.2)(1879) 12 Ch.D.454, at p.458; Klinker Knitting Mills Pty. Ltd. v. L'Union Fire Accident and General Insurance Co. Ltd. [1937] V.L.R.142. Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance.

However, special circumstances are not limited to that situation and will, I think, exist where for whatever reasons, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed: see McBride v. Sandland (No.2)(1918) [1918] HCA 59; 25 C.L.R. 369, at p.375."

In all the circumstances of this case in the exercise of my discretion I will grant a stay pending appeal on condition the defendant deposit $10,000.00 in Court within 21 days of this decision pending the hearing and determination of the Appeal.

D. Pathik
Judge

At Suva
26 May 1998

HBC0247D.95S