Singh v Goundar's Western Coach Builders [2002] FJHC 304; HBA004.2001 (26 July 2002)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

ACTION NO. HBA004 OF 2001

BETWEEN:

JAGDISHWAR SINGH
Appellant

AND

GOUNDAR’S WESTERN COACH BUILDERS
Respondent

Dr. M.S. Sahu Khan for the Appellant
Mr. Ronald Gordon for the Respondent

Date of Hearing: 21 September 2001
Date of Ruling: 26 July 2002

RULING
[On application for stay pending appeal.]

The Appellant seeks a stay on the execution of a judgment pending appeal. On 22 December 2000 the Plaintiff had obtained judgment in the Lautoka Magistrate’s Court for $13,114 and $250 costs for repair works to 2 buses.

On 27 August 2001 the Appellant took out a summons seeking stay and filed in support the affidavit of Philip Jagdishwar Singh, sworn the same day. For the Respondent, one Perumal swore and filed an affidavit in opposition on 17 September 2001. - 2 -

I have received assistance from counsel also in the form of helpful written submissions.

The burden of proving the necessity for stay lies on the Applicant: Barker v Lavery [1885] UKLawRpKQB 32; (1885) 14 QBD 769. The principles to be considered for imposing stay have undergone little change over the years. Normally the successful litigant is to keep his success unless special circumstances are shown. In Atul Kumar Ambala Patel v Krishna Murti (unreported) Civil Action HBC0225.99L 8 March 2000 in ruling against stay, I said (at pp 2-3):

“Once successful, the litigant should not lightly be deprived of the fruits of his successful litigation: The Annot Lyle [1886] UKLawRpPro 31; (1886) 11 P.D. 114 at 116 CA; Monk v Bartram [1891] UKLawRpKQB 15; [1891] 1 QB 346. The power of the Court to grant a stay is discretionary The Attorney-General v Emerson and Others [1889] UKLawRpKQB 190; (1890) 24 QBD 56; and it is “an unfettered discretion” Winchester Cigarette Machinery Ltd v Payne and Anor. (No. 2) (1993) TLR 647 at 648.

If a stay was not granted by the Court at the time of making the order now appealed against, the applicant must show that special circumstances exist as to why a stay should now be imposed, and the successful litigant in effect held back from his remedy: Tuck v Southern Counties Deposit Bank (1889 )42 Ch/D. 471 at 478 per Kay J; Atkins v G.W. Railway (1886) 2 TLR 400; Barker v Lavery [1885] UKLawRpKQB 32; (1885) 14 QBD 769. In the Winchester Cigarette case (supra) at 648 Lord Justice Hobhouse put it “The appellant had to show some special circumstances which took the case out of the ordinary.”

Special Circumstances

What are special circumstances? Amongst other things they have been held to be that the Appellant will be ruined if a stay were not granted Linotype-Hell Finance

Ltd v Baker [1992] 4 ALL ER 887, or that the appeal will be rendered nugatory in some way such as by the Respondent’s impecuniosity or inability to repay the judgment monies if the appeal were successful: Wilson v Church No. 2 [1879] UKLawRpCh 233; (1979) 12 Ch.D. 454 at p458. If additionally the grounds of appeal appear to have “some prospect of success” Linotype-Hell (supra at p888g) and cannot all be described as “obviously destined to fail or obviously merely for purposes of delay” Sewing Machines Rentals v Wilson [1975] 3 All ER 553 at p555b, or “wholly unmeritorious or wholly unlikely to succeed” (at p555c) then the court can go on to consider the balance of advantage to the parties.

The Appellant’s deponent says the company has “net assets of over $100,000.00 and will be in a position to pay the judgment amount once the appeal decision is given although it does not currently have the sum of $13,114.00.......”

Financial embarrassment however is not the same thing as financial ruin. No evidence has been adduced by the Appellant that ruin will follow enforcement of the judgment if a stay be not granted. Financial embarrassment is a factor to be taken into consideration once special circumstances have been established and the balance of advantage comes to be weighed.

The Appellant’s deponent says nothing of the impecuniosity of the successful Plaintiff, the Respondent, nor provides evidence as to why the Respondent might not be able to repay the judgment monies if the appeal succeeds. Compare the more detailed evidence adduced by the Appellant in Peter Elsworth and Another v Yanuca Island Ltd (unreported) Lautoka High Court Civil Action HBC0157.97L; 5th of June 2001.

Perumal, who trades as Goundar’s Western Coach Builders works, at 30 Vesi Crescent Industrial Area, Lautoka according to a letter exhibited in the Magistrate’s Court proceedings. This business address should have been stated in Mr. Perumal’s affidavit:

Buckley and Others v Sutton and Others (unreported) Lautoka High Court Civil Action HBC350 of 2001L; 8th of July 2002 at pp3-4. The Respondent’s whereabouts were known to the Appellant and there is no suggestion that Mr. Perumal is about to migrate. The burden anyway is not on the successful Plaintiff to prove his financial worthiness.

This case is not one where several litigants are to be paid who may then disperse across the globe rendering them untraceable to the Appellant (see Wilson supra at p459). Of the burden on the Appellant in such matters the Earl of Selbourne L.C. in Barker v Lavery (supra at p770) said:

“Evidence ought to have been adduced to show, that the plaintiff would be unable to repay the costs if he should be unsuccessful before the House of Lords. As to the request for time to make an affidavit about the plaintiff’s means, we cannot accede to it; those, who apply for a stay of execution, must come before us prepared with all necessary materials.” (Emphasis added)

As was said by Byrne J. in Jones and Another v Chatfield and 2 Others (unreported) Suva High Court Civil Action 7 of 1990; 4th of July 1991, the burden will not be discharged unless the Applicant “condescends to particulars”. Though this is not always an easy task for an Appellant to do, no attempt has been made to do so in this case.

The grounds of appeal

Grounds of appeal were filed on 11th of January 2001. They listed 3 grounds which were:

1. That the learned Trial Magistrate did not properly and/or adequately evaluate the evidence for the Respondent on the (one) hand and the evidence of the Appellant on the other.
   
2. That the learned Trial Magistrate erred in law and in fact in admitting in evidence and relying on hearsay evidence.
   
3. That the verdicts and findings of the learned Trial Magistrate are unreasonable having regard to the evidence as a whole.
   

In his statement of defence the Appellant admitted that the Respondent had agreed to carry out the repair works, but says these were not carried out as agreed, nor satisfactorily. He denied the monies claimed were owed and put the Respondent to strict proof. The $13,114.00 claimed was the balance said to be owing for works done costing $23,996.50 in all. Repairs were carried out between 1996 and November 1997. The Appellant had been making payments by instalments from 1996 to 17.6.99.

The trial Magistrate found there to have been no complaint in writing to support the allegation of unsatisfactory repair works, and instalment payments had been made right up to June 1999. Having carefully reviewed the evidence of the Appellant the Magistrate rejected the Appellant’s version. He gave further reasons for preferring the Respondent’s account which included the Respondent’s well kept accounting record books, and that he found the Appellant had been satisfied with the repairs. The Respondent’s accounts clerk said that he had received no complaints orally or in writing from the Appellant, a person who he knows. The Appellant’s witness, the Manager of the Bus Company testified. He said there was no problem with the repairs after delivery, but later problems developed. He said he did not deal with the accounts clerk or Mr. Gounder, only a foreman called Mani who now works for him. However he did not call Mani to confirm any of this. He said he did not pay since the garage was closed.

This appears to be one of those cases where the Magistrate has to accept either the Plaintiff’s version or the Defendant’s on a balance of probability. On the face of it, he chose rationally and that was the Plaintiff’s version. There is nothing in the record which suggests these grounds are arguable, let alone compelling. I am not satisfied there are special circumstances here justifying a stay.

Whatever the difficulties at the Lautoka High Court, no letters were exhibited to the Appellant’s affidavit suggesting the Appellant’s solicitors had at least tried to obtain a hearing date for the appeal. This delay may have been neutralized by the delay in proceeding to enforce the judgment on the Respondent’s part.

In the result, I decline to grant stay and order the Appellant to pay the Respondent’s costs which I fix summarily at $400.00 exclusive of disbursements which are to be taxed if not agreed.

A.H.C.T. GATES
JUDGE

Solicitors for the Appellant - Messrs Sahu Khan and Sahu Khan
Solicitors for the Respondent - Messrs Gordon & Co.