Scan Systems Investments Pty Ltd v Mudgway [2011] FJHC 574; HBC110.2010 (7 June 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 110 of 2010

BETWEEN:

SCAN SYSTEMS INVESTMENTS PTY LIMITED a duly incorporated company having its registered office at 112 Main Street, Blacktown, NSW 2148, AUSTRALIA
Plaintiff

AND:

CRAIG MUDGWAY of New Zealand and of Lot 31 The Cove, Denarau Island, Nadi, Company Director
Defendant

Appearances:
Mr. Peter Lowing for the Defendant

ORDER
(On Ex parte Notice of Motion)

1. The Defendant by his Ex parte Notice of Motion filed on 2nd June 2011 with supporting affidavit of Nemani Vakacakau a Solicitor seeks the stay of the orders of the final judgment of this Court delivered on 23rd May 2011.
   
2. By the said judgment this Court granted the Plaintiff mortgagee possession of the mortgaged property and ordered the Defendant to give vacant possession forthwith to the Plaintiff.
   
3. However though the Plaintiff has sealed the orders on judgment on the 25th May 2011 the Plaintiff has not yet obtained possession.
   
4. This application for stay is made ex parte though it ought to have been made inter parte as it is after judgment and parties are represented. However the urgency has necessitated the support of this matter ex parte by the Defendants Counsel.
   
5. The Defendant has set out various grounds of appeal in the "Grounds of Appeal" annexed as "C" to their affidavit. In the 6th ground of appeal the Defendant refers to paragraph 14 and 15 of the judgment and seeks the basis and reasons for same. At paragraph 14 therein this Court refers to a general principle in English Law that "the Creditor should seek out the Debtor". At the hearing of this application the Court brought to the attention of learned counsel for the Defendant Mr. Lowing OBE., the case of Comber vs. Leyland and Bullins [1898] UKLawRpAC 29; (1898) AC 524, where at page 528 Earl of Halsbury L.C. quoted the said principle by reference to it though it was not applied for reasons given therein. Even in Charles Duval & Co. Ltd vs. Gans and another (1904) KB 685 at 687 & 688 reference is made to the existence of such a general principle in English law. Learned Counsel has not submitted any authority to the contrary.
   
6. Most of the other grounds of appeal refer to the interpretation of the terms of the mortgage bond, which appear to be questions of fact rather than of law, however the Court of Appeal may differ and as such it is not for this Court to examine the grounds of appeal too closely.
   
7. The Defendants learned counsel Mr. Lowing OBE, in his written submissions refer to para 339 of the Halsbury Laws of England Ed.3 Vol. 27. However what is stated therein and reproduced in the written submissions appears to be more in support of the judgment of this Court than against it. Be that as it may such matters are for the Court of Appeal to decide, and at this moment what is urgently sought to be decided is whether the intended appeal of the Defendant would be rendered nugatory if the execution of the orders on judgment of this Court is not stayed, and whether such a stay would cause prejudice to the Plaintiff judgment creditor (mortgagee). On losing possession the intended appeal of the Defendant mortgagor would no doubt be rendered nugatory.
   
8. This Court is mindful that a judgment creditor should not be deprived the fruits of the judgment in his favour, lightly, as the execution of all judgments cannot be stayed pending appeal for the mere asking. The Defendant mortgagor does not provide proof of payment of the minimum installments under the mortgage up to date either. The Defendant among other matters urge that if possession is given to the Plaintiff a mortgagee sale would follow that would not fetch the best price. There is no evidence or reasons offered for this Court to arrive at such a conclusion and in any event such an event does not suffice by itself for the Court to stay execution pending appeal. The Court would well be functus officio after delivering the judgment if not for the execution proceedings thereafter.
   
9. However there is an element of irreparable loss when a mortgagor loses possession, nevertheless such irreparable loss should be identified by the Defendant for this Court to take cognizance of it.
   
10. It is also noted that no security as such is offered by the Defendant except the mere statement that he has properties within the jurisdiction to the value of $2,000,000. The affidavit in support too is not that of the Defendant himself but that of a Solicitor of the firm of Solicitors for the Defendant which this Court is of the view is not appropriate.
    
11. Therefore given the weak nature of this application as above this Court is of the view that it is more appropriate for the Defendant to obtain a stay of execution of the orders on judgment of this Court, pending appeal, from the Court of Appeal upon supporting such an application, and at the most this Court may stay execution pending the support of such an application before the Court of Appeal for a limited period of time so as to cause minimum prejudice to the Plaintiff, given the urgency and concern expressed by learned counsel for the Defendant.
    
12. The Defendants counsel indicating that such an application could be supported before the Court of Appeal within 2 weeks, this Court is reluctantly disposed to stay the execution of the judgment and orders of this Court delivered on 23rd May 2011 for a limited period of 3 weeks subject to the deposit by the Defendant of the sum of $6000/= as security for damages in favour of this case with the Registry, and such stay to automatically expire on the 27th of June 2011 at 4pm.
    

ORDERS;

1. execution of the judgment and orders of this Court delivered on 23rd May 2011 is stayed for a limited period of 3 weeks subject to the deposit by the Defendant of the sum of $6000/= as security for damages in favour of this case with the Registry, and such stay to automatically expire on the 27th of June 2011 at 4pm.
   
2. no order as to cost.
   

Hon. Justice Yohan Fernando.
JUDGE.

High Court of Fiji
At Lautoka
7th June 2011.