Gunac (South Pacific) Ltd v Modern Aluminium Glass (Fiji) Ltd [2013] FJMC 127; Civil Action51.2012 (7 March 2013)

REPUBLIC OF FIJI ISLANDS

IN THE MAGISTRATE'S COURT
AT SUVA
CENTRAL DIVISION
CIVIL JURISDICTION

Civil Action No. 51 of 2012

GUNAC (South Pacific) Limited
Applicant
v.

Modern Aluminum & Glass (Fiji) Ltd
Respondent

For Applicant : Mr. W. Hiuare (HM Lawyers)
For Respondent : Parshotam Lawyers

Ruling

Introduction

In this matter the Applicant has filed a Notice of Motion seeking that "(i) leave out of time be granted to the appellant to appeal against the decision of the referee delivered on 13th August, 2012. (ii) that there be stay of all proceedings including small claim tribunal action no. 1366/2012 and present action 21 of 2012. (iii) that stay of writ of fiery facias execution and disposal or sale of the repossessed items as (a) 1 rack (b) 2 x primary desks (c) 2 drawer (cabinet) and 2 x chairs." The Applicant also filed an affidavit which they rely upon.

Parties were given time to file submissions on the application before this Court. Both sides have made written submissions.

History of the Matter

(a) Respondent obtained judgment in SCT on 13th August 2012 against the Applicant in the sum of $1873.73.
(b) Respondent executed Writ of FIFA, dated 19th October 2012.
(c) On 6th November 2012, Applicant filed Notice of Motion to appeal out of time.

The Law

In Chans Long Chang vs Yen Yain Kai (1999) FJ HC 107, 45 FLR 217, the general principles governing the grant of leave to appeal out of time are set out as follows:-

(1) The length of the delay.

(2) The reason for the delay.

(3) The chances of an appeal succeeding if the time for appealing is extended.

(4) The degree of prejudice would cause to the respondent if the application is granted.

Analysis

(1) Length of Delay -

The length of delay is about 3 months. The Applicants state that "in this case the appellant appeared in person through its Directors hence was not aware of the legal implications of the 14 days that required for the appeal."

The argument advanced by the Applicants is not acceptable. It seems like the Director is saying I did not know the implications. Ignorance of law is no defence. The Director of the Appellant Company is an authorized officer and acting for the Company and as such he should have knowledge and considered the implications of the 14 days rule. This Court notes that the leave to appeal was filed after the FIFA was executed. No action was taken by the applicant until the FIFA was executed.

(2) Reasons for Delay –

The reason the Applicant outlines for the delay was that it was of the "view that since his counter claim be considered parties might come to sort of settlement". For this part the Applicants are proposing after the Small Claims Tribunal Order was issued about some form of settlement. The SCT had given an order and it was for the Applicant to comply with the Order or Appeal in time and if it wanted to settle with the Respondent and it should have had discussions with them for settlement and not sat back until the FIFA was executed to start the process of appeal. Furthermore this Court has noted that the Referee has carefully and fairly considered all issues and documents before him in reaching his decision.

(3) The chances of an appeal succeeding if the time for appealing is extended –

This Court has noted the considerations of the Referee and finds that he considered all matters before him in reaching the decision. The Applicant relies on the counter claim which they are seeking leave now to file in this Court. The Applicant is at liberty to pursue the matter. But to bring it with leave to appeal out of time, and seeking leave to file counter claim is an abuse of process. From the material before it this Court finds that the Applicant has no chance of success if leave to appeal is granted.

(4) The degree of prejudice would cause to the respondent if the application is granted -

The Respondent is entitled to the fruits of its litigation. The FIFA has been executed. The Applicants have "woken up" after the FIFA was executed and filed this action. Further delays will prejudice the Respondent.

This Court Orders as follows:

(a) Leave to Appeal is refused.
(b) Cost to Respondent sum of $500.00 to be paid with 28 days.

Chaitanya Lakshman
Resident Magistrate
7th March 2013