Kelton Investments Ltd v Lami Investments Ltd [2005] FJHC 218; HBC0078.2005 (11 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0078 OF 2005

BETWEEN:

KELTON INVESTMENTS LIMITED
PLAINTIFF

AND:

LAMI INVESTMENTS LIMITED t/a
FOOD FOR LESS SUPERMARKETS
DEFENDANT

Ms B. Narayan for Plaintiff
Mr. V. Kapadia for Defendant

RULING EX-TEMPORE

This court has a discretion to grant stay pending appeal either conditionally or unconditionally. The list of factors generally taken into account when considering stay were stated in Natural Waters of Viti Levu Limited v. Crystal Clear Mineral Water Limited – ABU0011 of 2004 as follows:

“(a) Whether, if no stay is granted, the applicant’s right of appeal will be rendered nugatory (this is not determinative). See Philip Morris (NZ) Ltd. v. Liggett & Myers Tobacco Co. (NZ) Ltd. [1977] 2 NZLR 41 (CA).

(b) Whether the successful party will be injuriously affected by the stay.

(c) The bona fides of the applicants as to the prosecution of the appeal.

(d) The effect on third parties.

(e) The novelty and importance of questions involved.

(f) The public interest in the proceeding.

(g) The overall balance of convenience and the status quo.”

If I refuse stay, the appellant will need to close the supermarket and vacate the premises by 21st August 2005. Within the limited time available, it will need to find alternative premises if it is to relocate. This would be quite a task. If it fails to relocate and is forced to vacate, it would mean loss of employment for the employees. Even though the exact number of employees is not told, I consider it would be a significant number. The defendant’s business would also be seriously disrupted.

Should the defendant succeed on appeal, it would be rendered nugatory if it is forced out and the premises re-rented to someone else as obviously the plaintiff intends to do. The nature and scale of operations carried out by the defendant is a significant factor which favours stay.

The plaintiff’s concerns that it would lose out on rent can be easily resolved if the appeal is unsuccessful. Obviously in such a case the defendant would need to pay the difference between the Public Incomes Board approved rent and current rental it is paying.

The records of the proceedings are short and can be quickly prepared and transmitted to the Court of Appeal. It is not always easy for a primary judge to assess the chances of success of appeal. There are times when the appellate court does show us to be wrong. I have looked at the grounds of appeal and to me at least some of them particularly issue of acquiescence and estoppel are clearly arguable grounds of appeal.

I am of the view that the overall justice and balance of convenience favour that I grant stay pending appeal. I accordingly grant stay of execution pending appeal. No order as to costs.

[ Jiten Singh ]
JUDGE

At Suva
11th August 2005