Fiji Fish Marketing Group Ltd v Great Pacific Seafood Ltd [2005] FJHC 66; HBG0011r.2001s (31 March 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ADMIRALTY ACTION NO. 11 OF 2001

Between:

FIJI FISH MARKETING GROUP LIMITED
Plaintiff

and

1. GREAT PACIFIC SEAFOOD LIMITED
2. WEST PACIFIC SEAFOOD LIMITED
3. THE MOTOR VESSEL “MARY M”
4. THE MOTOR VESSEL “HOLLY G”
5. THE MOTOR VESSEL “MARY Q”
Defendants
In Rem

Mr W. Clarke for the Plaintiff
Mr J. Apted for the 14th & 15th Interveners and for Defendants
Mr I. Tuberi for 1st & 2nd Interveners
Mr D. Sharma for 3rd & 5th Interveners and for 7th, 8th, 9th & 17th Interveners on instructions.
Mr T. Fa for 10th Intervener

Interveners:

1. INTERNATIONAL FREIGHT AND CLEARANCE SERVICE LTD
represented by Tuberi Chambers

2. AGAPE FISHING ENTERPRISE LTD represented by Tuberi Chambers

3. JOE’S FARM PRODUCE LTD – represented by R. Patel & Co.

4. UNITED MARINE S.P. LTD - “ “ “

5. SHELL FIJI LTD - “ “ “

6. SHUTTLEWORTH & INGERSOLL – represented by Munro Leys

7. SUNG JIN CO. FIJI LTD - represented by Sherani & Co.

8. TRIPACIFIC MARINE LTD - “ “ Patel Sharma & Associates

9. SOUTH SEA ENGINEERING LTD - “ “ Mitchell Keil & Associates

10. MARINE UNION OF FIJI - “ “ Tevita Fa & Associates

11. SEAMECH LTD - “ “ Tikaram & Associates

12. OFFICIAL RECEIVER “ “

13. FIJI FISH MARKETING GROUP LTD (Plaintiff) - represented by Howards

14. CLARKE E. MCLEOD (Mortgagee) - represented by Munro Leys & Co.

15. MS MARY QUASS (Mortgagee) “ “ “

16. DURGA PRASAD - represented by Maharaj, Chandra & Associates

17. CAPTAIN REA CHUN BAK represented by Sherani & Co.

DECISION
(Stay of Execution)

By Summons dated 4 January 2005 the 14th and 15th Interveners Clarke E. Mcleod and Ms Mary Quass respectively herein have applied for orders for a stay of execution and stay of all further proceedings to enforce the judgment of this court delivered on 4 January 2005 in this action being Admiralty Action No. 11 of 2001.

The applicants have appealed to Court of Appeal against the said judgment and have further sought an order for stay of the said judgment pending the determination of the appeal.

In my absence on long leave an interim stay was granted by Justice Singh until further Order of this Court. The matter was pending awaiting my return after I resumed work on 28th February 2005. I heard this application on 16 March.

The Court has before it for its consideration affidavits in support of the application and affidavits in opposition to stay from some Interveners.

On the hearing of the Summons counsel for the said applicant Interveners and counsel for the plaintiff, in addition to their written submissions have put forward oral arguments.

The applicants’ counsel also referred the Court to their Grounds of Appeal.

I have given due consideration to the arguments put forward by Counsel and principles governing a stay application.

Principles governing a stay

As far as principles governing a stay application are concerned I can do no better than refer to the following passage from the very recent judgment of Court of Appeal, Fiji Islands of 18 March 2005 in Natural Waters of Viti Limited and Crystal Clear Mineral Water (Fiji) Limited, Civil Appeal No. ABU/0011 of 2004S. which the Court quoted from the New Zealand text, McGechan on Procedure (2005).

“ On a stay application the Court’s task is “carefully to weigh all of the factors in the balance between the right of a successful litigant to have the fruits of a judgment and the need to preserve the position in case the appeal is successful”: Duncan v Osborne Building Ltd (1992) 6 PRNZ 85(CA), at p 87.

The following non- comprehensive list of factors conventionally taken into account by a court in considering a stay emerge from Dymocks Franchise Systems (NSW) Pty v Bilgola Enterprises Ltd (1999) 13 PRNZ 48, at p 50 and Area One Consortium Ltd v Treaty of Waitangi Fisheries Commission (1993) 7 PRNZ 200:

(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 proceedings.

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

Application of principles to this case.

This was a lengthy and hotly contested matter. As will appear from my said judgment herein a large number of issues were raised involving Admiralty Law particularly in relation to a mortgagee’s position especially on the facts of this case.

A number of issues have been raised in the Grounds of Appeal and I consider that the applicants should not be denied their right of appeal in the interests of justice. It is not for me to consider the merits or demerits of the appeal grounds.

The proceeds of sale of the vessels herein were deposited in Court as ordered.

If these moneys are paid out pursuant to my said judgment, no doubt there will be difficulty in recovering them and this will create problems. It will be better to let the status quo remain.

Also if paid out there is a grave risk that the appeal will be rendered nugatory.

Bearing in mind the abovementioned principles on stay application particularly in items (b), (c), (d) and (e) in the said passage from McGechan, the scale tips in favour of the applicants that a stray be granted. The Court has been assured that the appeal will be pursued with due diligence and that the appeal is likely to be heard in the next session of Court of Appeal.

It is to be noted that although I have given judgment in this case, there are a number of issues which still require clarification so that finality could be reached and orders made for payment out. Before deciding on those remaining issues it is only proper that this Court await the appeal Court’s decision.

There is one matter in which all parties have consented to payment out and that is the payment out to Admiralty Marshal the sum of $4500.00 as stated on page 38 of my judgment, to be paid out immediately.

Conclusion

For the above reasons, applying the principles applicable to a stay application I consider that on a balance of convenience the status quo remain.

The interest of justice leans in favour of a grant of stay as per the summons.

The application is therefore granted as prayed.

D. Pathik
Judge

At Suva
31 March 2005