National MBF Finance (Fiji) Ltd v Pickering [1999] FJHC 152; HBC0341D.1997 (9 August 1999)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 0341 OF 1997

BETWEEN:

NATIONAL MBF FINANCE (FIJI) LIMITED
Plaintiff

AND:

DONALD PICKERING AND EILEEN PICKERING
Defendants

Counsel: Ms P. Narayan for the Plaintiff
Mr Ratuvili for the Defendants

Hearing: 6th August 1999
Decision: 9th August 1999

DECISION

This is an application by the Defendants for leave to appeal the decision of the court of 15th July 1999, refusing to set aside default judgment, and for stay of the default judgment until the hearing of the appeal.

Section 12(2)(f) of the Court of Appeal Act provides that no appeal shall lie without the leave of the Judge or of the Court of Appeal from any interlocutory order or interlocutory judgment made or given by a Judge of the High court.

At the outset, I must say that the order refusing to set aside default judgment under Order 13 of the High Court Rules 1988, does not appear to be an interlocutory one.

Section 12(3) of the Court of Appeal Act provides that an order “refusing unconditional leave to defend an action shall not be deemed to be an interlocutory order within the meaning of this section”.

Furthermore the order refusing to set aside default judgment effectively disposed of the proceedings between the parties except, of course in respect of the enforcement of writ of fieri facias.

In the circumstances, and this was conceded by counsel for the Respondent, I hold that the appeal is not an interlocutory one, and that there is no need for the Appellants to apply for leave.

The remaining issue is that of stay.

Mr Ratuvili for the Appellants submitted that a refusal to grant a stay of the default judgment and writ of fifa would in effect render the appeal nugatory. Ms P. Narayan for the Respondent submitted that in the absence of a payment of the judgment debt of $31,549.18 into court, the court should refuse to grant a stay. She further submitted that the grounds of appeal were simply in respect of the exercise of a judicial discretion and had no merit. She agreed that if the Defendants are not prepared to pay the judgment debt into court, the Plaintiff will be grossly prejudiced by the delay before the appeal is heard.

Clearly the issue at this stage is to consider whether a refusal to grant stay will frustrate the appeal.

As this appeal is against the refusal of the court to set aside judgment in default, a refusal of stay would mean that the Defendants would be subject to a writ of fieri facias which would lead to a seizure of their chattels. The Plaintiff on the other hand stand to have the judgment debt delayed in payment.

On a balance I am of the view that a refusal of this application would render the appeal nugatory.

As such despite the Defendants’ inability to pay the amount in question into court, I order stay of my order of 20th July 1999, pending the outcome of the appeal.

[Nazhat Shameem] Ms
JUDGE

At Suva
9th August 1999