Padayachi v Devi [2000] FJHC 207; HBA0022D.1998S (1 February 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO: HBA 0022 OF 1998

BETWEEN:

ARMOGAM PADAYACHI f/n Adimullam Padayachi
Applicant
(Original Respondent)

AND:

ANITA DEVI f/n Hari Ram
Respondent
(Original Applicant)

COUNSEL: Mr E. Veretawatini for Applicant
: Mr A. Singh for Respondent

Hearing: 27th January 2000

Decision: 1st February 2000

DECISION

This is an application for stay of a costs order, and taxation of costs, sealed on 16th December 1999 pending the appeal to the Fiji Court of Appeal.

The decision made by this court was that the decision of the Nausori Magistrates Court of 29th April 1998, to grant custody of a child Parheen Pratishna Padayachi had not been reached without a proper consideration of the guidelines of the Fiji Court of Appeal in Rajendra Nath -v- Madhur Lata FCA 11/84. The decision was set aside and a re-hearing ordered. The Respondent was to pay the Appellant’s costs.

The principles guiding a decision to stay execution of judgment pending appeal are that the applicant must show exceptional circumstances, and whether the either party will suffer greater harm from the grant or refusal of stay pending appeal (Pathik J in Fiji Bus Operators Association -v- Kelton Investments Civil Action No. 0024 of 1999). Whilst there has been some departure from requiring the applicant to show “exceptional circumstances”, the court must consider whether the successful party should be deprived of the fruits of his judgment pending appeal, on a balance of all factors.

In this case, any payment of costs in the High Court can be taken into account at the Court of Appeal if that Court makes an order for costs. Indeed, if the Applicant succeeds in the Court of Appeal, he will normally be entitled to costs from the Respondent.

In the circumstances I see no reason why the costs order should be stayed in the High Court pending appeal. The Deputy Registrar may proceed with taxation forthwith. The Applicant is to pay the Respondent the costs of this application which I fix at $50.00.

Nazhat Shameem
JUDGE

At Suva
1st February 2000