On 11th April 2000, I refused the Plaintiffs’ application for an injunction aining the Defendant Bank from proceeding with the sale
on e on mortgage on property at 8 Niranjan Street, Tamavua. The property contains a dwelling house, which the Plaintiffs bought in
1987 for $55,000.00. The property was under mortgage to the Defendant Bank, which also lent further sums of money, (purportedly under
the terms of the same mortgage) to Unique Marketing South Pacific Ltd.
The application for injunction having been refused, the Plaintiffs then a Notice of Appeal, and an application for stay of all proceedings
until the determinationation of the appeal. The Respondent opposes the application for stay.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The grounds for the application are set out in ffidavit of John Thomas Low dated 14th August 2000. They are that there are reasonable
chan chances of success in his appeal, and that a refusal of the stay order would result in the loss of his home which houses his
family.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The Respondent opposes stay on the ground that a stay would be more prejudicial to the Bank because the propertnot be inspected by
legitimgitimate buyers and that the appeal has no merit.
The grounds of appeal are as follows:
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2. & &nsp; &bspp; p; Tpan>That her LadysLadyship erred in fact and in law in holding that the balance of convenience favours the Respondent and not the
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3. p; &&bsp;;&bspp; &nnsp; &nbp;&nbs; Ter Lap ship erred rred in law and in fact in holdint thellantateme Claiks cl of tuse of action.”
The principles relevant to the grant or refusal otay pending appeal are firstly whether a refusal would render the appeal, if successful,
nul, nugatory, secondly whether the appeal has any merit, and thirdly whether there are any special circumstances justifying the
grant of a stay (Reddy’s Enterprises Ltd. -v- The Governor of the Reserve Bank FCA Appeal 67/90.
In this case, the Applicants have a right of appeal from the decision to refuse an injunction to prevent the Bank from selling his
hous they succeed in the appealppeal, and this application for stay is refused, the purpose of the appeal would be frustrated. The
appeal would thereby be rendered nugatory.
As to the grounds of the appeal, I have no reason to believe that this appeal lacks bona fides. In the circumstances I consider it
just to grant a stay of proceedings until the hearing of the appeal.
However, I consider that there is a need to imconditions on the stay order which would go some way to protect the Respondent’s interests.ests.
The Applicants do not dispute a debt of $18,351.86 to the Respondent. They dispute the further advances.
In the circumstances I order that the stay of all proceedings is conditional on the payment into court of $18,351.86 by the Applicantsther
I see no reason why thhy the Applicants should not permit the Bank to facilitate inspection of the premises, and I order inspection
as an additional condition of the stay order.
Costs, however, are in the cause.
Nazhat Shameem
JUDGE
At Suva
