Pautogo v Goldenwest Enterprises Ltd [2005] FJHC 595; HBF0013.2003 (5 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBF0013 OF 2003

BETWEEN:

TIMOCI PAUTOGO
PETITIONER

AND:

GOLDENWEST ENTERPRISES LTD
RESPONDENT

Ms N Khan for the Petitioner
Mr H A Shah for the Respondent

Date of Hearing: 1 July 2005
Date of Ruling: 05 August 2005

INTERLOCUTORY RULING OF FINNIGAN J

I have before me a summons filed on 4 May 2005 by the Respondent Company for a stay of orders that I made on 5 April 2005 pending determination of an appeal against those orders.

I doubt my jurisdiction to entertain this application without the involvement of the liquidator but I shall proceed on the merits, as argued by Counsel.

The Respondent relies on the affidavit of Carol Van one of its Directors. There is very little substantive fact in the affidavit. It amounts to a claim that the Petitioner had misappropriated large sums of money from the company and that if the deponent and another Director had not been prevented “by unforeseen circumstances” from attending the winding up hearing they would have presented evidence that the Petitioner’s removal from being a Director was not unjust. There is actually a Director resident in Fiji. She states also that refusal to grant a stay would put at risk the livelihood of several workers and “the Company’s Status as a viable Company would be seriously jeopardized in the event the Appeal succeeds”. Nothing more than that. Annexed to the Affidavit is a notice of appeal which also is devoid of substantive information.

On this unimpressive evidentiary foundation Mr Shah has mounted an attractive submission. It is concise, based on authorities and logical. I accept those submissions. Put briefly, and with the authorities omitted, they amount to this; the Court has an absolute and unfettered discretion as to granting or refusing the stay and as to its terms. The Court does not act to deprive a successful litigant of the fruits of his litigation without principled reason. The Court will however grant a stay where special circumstances of the case require it. The circumstances need not be exceptional. An appeal should not be rendered nugatory. In the present case the Official Receiver has begun to dispose of the assets of the company and this process will continue until all assets are liquidated. The consequences will be not only dissolution of the company itself but also the loss of what I presume is claimed to be profitable business and the loss of gainful employment by its employees. However, I am not sure that the affidavit of Carol Van goes that far. I have not been told very much in these proceedings about any employees or about the viability and profitability of the company.

For the Petitioner Ms Khan made submissions that were just as compelling. She pointed out that the grounds stated for both the appeal and the stay are not strong. She submitted that if it grants a stay the Court may deprive the Petitioner of the fruits of his litigation. I must say I am not sure what they are.

Decision:

I am not at all satisfied that there is merit in the stay application or in the appeal. I am not sure that the company itself is enabled to make this application. In any event, the remedy was in the hands of the Respondent itself. All the Petitioner had wanted since his lawyers first wrote to the Respondent on 12 December 2002 was an offer to purchase his shares. The Respondent for its part remained passive throughout these proceedings and one of the Directors now seeks relief by way of stay and appeal on grounds that do not impress. I am sure that my discretion, exercised according to the principles which I must apply, with or without jurisdiction, must incline towards refusing this application. There is simply insufficient fact supplied as a basis for it, in any events. It is refused accordingly.

I assess costs in the Petitioner’s favour at $500.00.

After preparing this judgment I had delivered to me two affidavits filed on 18 July 2005 and 2 August respectively. I was not expecting them, did not require them, and have not taken them into account. From a quick glance, it seems they purport to be affidavits when they are in essence submissions.

D.D. Finnigan
JUDGE

At Lautoka
05 August 2005