Tokomaru Ltd v Port Denarau Marina Ltd [2005] FJHC 537; HBC0145.2004L (23 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0145 OF 2004L

BETWEEN:

TOKOMARU LIMITED
Plaintiff

AND:

PORT DENARAU MARINA LIMITED
Defendant

Mr. M. Daubney, QC with Mr. W. Clarke for the plaintiff
Mr. S. Kos with Mr. N. Barnes for the defendant

Date of Hearing: 8 September 2005
Date of Ruling: 23 September 2005

RULING

The plaintiff and defendants sought the determination of two preliminary points in these proceedings. By judgment delivered on the 29^th April 2005, I answered the two questions affirmatively, the result of which was that:

(a) The sale agreement dated April 1999 between the plaintiff as Vendor and the defendant as Purchaser was declared void ab initio for illegality pursuant to section 6 of the Land Sales Act?

(b) The plaintiff is thereby entitled to recover possession?

On the 12^th May 2005, the defendant filed a notice of appeal with the Fiji Court of Appeal. On the 29^th June 2005, the plaintiff filed a Summons which was called on the 8^th July 2005 in which it sought:

(1) That pursuant to Order 20 Rule (1), the plaintiff have leave to amend the Originating Summons dated 18 May 2004 as per draft exhibited at “SAS-1” to the affidavit of Shane Anne Sorby dated 27 July 2005;

(2) That an order be made as per the draft exhibited at “SAS-2” to the affidavit of Shane Anne Sorby dated 27 July 2005;

and directions for discovery. The amendment referred to in (1) above seeks to amend the Originating Summons by adding Clause 3 (a):

“A declaration that, in consequence of the fact that the said Sale Agreement was and is void, all leases, licenses and benefits obtained by the defendant under, pursuant to, or in reliance or consequence of the Sale Agreement are void and/or unenforceable, and such consequential orders as may be required to give effect to such declaration;”

This order was granted by consent.

The order referred to in (2) above seeks as order (3) that the defendant deliver up forthwith possession of the land it occupies pursuant to the sale agreement.

On the 22^nd July 2005, the defendant by Summons sought that the proceedings in this court be stayed pending judgment of the Court of Appeal.

The plaintiff opposes the application for a stay and submits that the judgment of the 29^th April 2005 was interlocutory and that therefore pursuant to section 12 (2) (f) of the Court of Appeal Act, Leave to Appeal is required and was not obtained and further that the time for obtaining such leave has passed.

The defendant submits that no stay was required until the orders referred to above were sought by the plaintiff’s Summons filed the 29^th June 2005 as the judgment of the 29^th April 2005 merely granted declaratory relief which results in their being nothing to stay.

A security for costs application was filed by the defendant with the Fiji Court of Appeal in accordance with the Court of Appeal Rules on the 12^th May 2005 and that application was heard on the 19^th May 2005 and the defendant was ordered to pay the sum of $1,000.00 which was paid on the 27^th May 2005.

It would seem to me that the Fiji Court of Appeal was seized of the appeal prior to the plaintiff seeking to amend the Originating Summons and seeking orders which include the order for possession which is the cause of the defendant’s stay application.

From this brief chronology it would appear that as the Fiji Court of Appeal is seized of the appeal it would be inappropriate for this court to consider the competence of the appeal, that is to consider if Leave to Appeal is required or not. That is a matter for determination by the Court of Appeal.

The proceedings before the Court of Appeal may take some time to resolve and may result in a further appeal to the Supreme Court. In these circumstances it seems inappropriate to make the orders sought in the plaintiff’s Summons filed on the 29^th June 2005 at this time and accordingly the Orders of the Court will be:

1. The plaintiff’s Summons filed on the 29^th June 2005 is adjourned sine die to be restored on 7 days notice after the expiration of 28 days from the delivery of judgment by the Fiji Court of Appeal with respect to the appeal lodged by the defendant on the 12^th May 2005.
   

2. The Defendant’s Summons filed on the 22^nd July 2005 is dismissed.

3. No order as to costs of either Summons.

JOHN CONNORS
JUDGE

At Lautoka
23 September 2005