Navo Development Ltd v Toyota Tsusho (South Sea) Ltd [2005] FJHC 534; HBC0337.1993 (16 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0337 OF 1993

BETWEEN:

NAVO DEVELOPMENT LIMITED
PLAINTIFF

AND:

TOYOTA TSUSHO (SOUTH SEA) LIMITED
DEFENDANT

DAYALS QUARRIES LIMITED
THIRD PARTY

Messrs Suresh Maharaj & Associates for the Plaintiff
Messrs Howards Lawyers for the Defendant
(City Agents Messrs Gordon & Co).

Date of Hearing: 8 July 2005
Dates of Submissions: 22 July, 5 August and 12 August 2005
Date of Ruling: 16 September 2005

INTERLOCUTORY RULING OF FINNIGAN J

This is an Interlocutory Application by a successful Plaintiff for payment out of the fruits of a judgment in its favour while the Defendant’s appeal against that judgment is pending in the Court of Appeal.

The Plaintiff at the time of the judgment in its favour was a Company in liquidation but the Winding Up Order has since been permanently stayed under Section 252 of the Companies Act Cap 247 and the Company has been re-instated to the Companies’ Register. The Plaintiff does not seek payment in full. It seeks 50% of the judgment and 50% of the costs that were awarded to it. I have myself made an order in this circumstances for payment of 50% of a judgment to a successful Plaintiff pending appeal with the other 50% to be paid into Court. That course was followed also by Gates J in Elsworth & Another –v- Yanuca Island Ltd Civil Action HBC0157 of 1997L Ruling delivered 5 June 2001.

I have before me Affidavits in Support filed by the Plaintiff which were sworn on 25 August 2004 and 20 June 2005 together with a Supplementary Affidavit sworn on 3 August 2005. I have the written submissions of Counsel for both parties. The Third Party has taken no steps.

The Plaintiff has an additional hurdle in this case. Execution of the judgment was stayed by an order made in this Court on 27 October 2004. What the Plaintiff seeks is not just an order for payment out but an order removing and setting aside unconditionally the stay of execution. The Court having already granted relief to the Defendant is now being asked to reverse its own order.

The grounds put forward by Counsel for the Plaintiff in my view doe not raise any grounds on which the Court would be justified in reversing the steps it has already taken. The order made in the Elsworth case (above) and the order which I made in Henry –v- Lautoka City Council HBC0025 of 1993 Ruling 30 June 2005 was done in the course of ruling on a Defendant’s application for stay of execution. In the present case what the Plaintiff seeks is something that was already open to the Court when it granted the stay of execution on 27 October 2004.

As I apprehend them, the Plaintiff’s grounds for seeking a similar order now are (1) that the Plaintiff is no longer in liquidation and is able to trade (2) that the Defendant is dragging its feet in prosecuting the appeal. As for the second ground I am satisfied that it is the Court which is causing delay in prosecution of the appeal. After Counsel appeared on 8 July 2005 I located without difficulty the seven tapes of recorded evidence which had been put away in a drawer after the substantive hearing. I have since arranged for the Chief Registrar of the Court at Suva to have these tapes typed up because the Court at Lautoka has no capacity to absorb such a task. As for the second ground, it appears to me to add very little to the merits that the Plaintiff may have in this application. As Counsel for the Defendant points out the Plaintiff has given no indication whatever of the result of its re-instatement on the Companies Register and has given no evidence at all on which to base a conclusion that any money paid to it could readily be re-paid if the Defendant’s appeal succeeds.

In a case of this sort the sympathies of the Court lie strongly in the Plaintiff’s favour. That is what the authorities require. The Plaintiff should have its money if that can be done without rendering the appeal nugatory. I am not satisfied however that this would be the case and must refuse this application.

I therefore dismiss the Plaintiff’s application for payment out of 50% of the judgment and costs. I fix costs in respect of the application for the Defendant at $500.00.

D.D. Finnigan
JUDGE

At Lauotka
16 September 2005