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Civoniceva v Turtle Island and Landing Services [2014] FJMC 127; Civil Action 327.2011 (23 July 2014)

IN THE MAGISTRATE’S COURT
AT SUVA
IN THE CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS
CIVIL JURISDICTION


Civil Action No: 327 of 2011


Joseph Civoniceva
Plaintiff


v.


Suliasi Kudruvi trading as Turtle Island and Landing Services
Defendant


For Plaintiff : Ms. R. Lal Bale (Lal Patel Bale Lawyers)
For Defendant : Ms. M Rakuita (MRV Legal Consultancy)


Ruling - Stay


Introduction


In this matter the Plaintiff had filed a Writ of Summons seeking judgment in the sum of $17,900, general damages for breach of contract, interest and costs (all to be within the jurisdiction of the Court).


This Court on 19th March 2014 delivered a judgment in favour of the Plaintiff and ordered as follows:


(a) That the Defendant pay the Plaintiff the sum of $11, 900.00 for the Charter.
(b) That the Defendant pay the Plaintiff for the cost of food, supplies and other related miscellaneous expenses, sum being $6347.47.
(c) That the Defendant pays the Plaintiff for general damages for loss of business sum being $30,000.00.
(d) That the Defendant to pay costs to Plaintiff sum being $1500.00.
(e) The total sum to be paid by the Defendant is limited to the jurisdiction ($50,000.00) of this Court.

The Court also informed the parties if they were aggrieved with the judgment they had the right to appeal to the High Court within 28 days.


A writ of FIFA was issued on the 28th day of April 2014. On 1st May 2014 The Court Sheriffs executed the FIFA and after taking the inventory gave the Defendant 5 days to settle the claim failing which the vehicles would be seized. A notice of intention to appeal was filed on 28th March 2014. A Notice of Motion for Stay of FIFA pending appeal was filed on 8th May 2014.


The parties agreed to be heard by way of written submissions. Submissions had been made and have been considered by this Court.


The Law on Stay


In Estate Management Services Ltd v Pagenstecher [2012] FJHC 1175, Justice Balapatabendi laid down "The principles governing the grant or refusal of a Stay&#pplication pendipending appeal&#re wele well settled.The principles' governing a Stay has btated ihus in HalsbHalsbury's Laws of England (4th Ed. Vol. 37 para 696):


p>The >The Court considering a Stay should take account the fole following questions. They were the principles set out by the Court of Appeal anrovedtl entl applrequentluently inly in this Court. They were summarized in Natural Waters of Viti Ltd v td v CrystCrystal Clear Mineral Waters (Fiji) Ltd Ci160;A ABU0011.04S 18th March 2005. They are: are:<


"(a) Whether, if no st60;is granted, the applicpplicant's right of appeal will bdered nugatory (this(this is not determinative). See Philip Morris (NZ) Ltd v Liggett &s Tobacco Co (NZ) Ltd 1977 2 NZLR 41 (CA).


>

(b) Whether the successful party will be injuriously affected by the Sti>

(c) The bona bona fides of the Applicants as to the prosecution of the appeal.

(d) The efhe effect ond parties.

(e) The novelty and importance of questions involved.

<

(f) The public interest in the procgs.

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


Analysis


This Court has noted the submissions made for each party. This Court will address each question on the principles of stay pending appeal.


  1. Whether, if no stay is granted, theicppl's righ right of appeal wilrendeugd nugatory (this this is not determinative). –

This Court notes that the Defendant (Applicant in Stay) needs to seek leave of the High Court to appeal out of Acco to this Court nort no appe appeal is on foot. If the Defendant is successful in his appeal the Plaintiff (Respondent in Stay) will be required to re-pay the Defendant.


(b) Whether the successful party will be injuriously affected by the St8211;


If p>If stay is granted to the Defendant (Applicant) the Plaintiff (Respondent in Stay) will be deprived o fruits of its litigation. A successful litigant should not be deprived of the fruits of liof litigation.


(c) The bona fides of the Applicants as to the prosecution of the appea211;


T

The Defendant did not proceed to seek stay of judgment immediately and file notice of intention to appeal within time. Stay should have been sought immediately not whFA was issued. No appeal isal is on foot and as a result this Court cannot examine the merits of the appeal.


(d) The effect on third parties.


From the substantive action in this Court, this Court notes that the crew members and others were involved. They will be affected by not having their pay given to them. In any event if the Plaintiff (Respondent in Stay) has paid them why should he be denied the right to recover whatever he paid to the third party.


(e) The novelty and importance of questions involved and (f).The public interest in the proceedings.


This was a case involving contractual issues between the parties. While the case is important for both the parties it did not involve and novel or public interest issues.


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


The overall balance of convenience favours the Plaintiff (Respondent in Stay) The Plaintiff/Respondent has received a judgment in his favour. He has executed the Judgment. He has acted timely and without delays. The Defendant/Applicant for his part has not appealed within time. No appeal is on foot. He waited until FIFA was executed to seek stay.


For the foregoing reasons the Court orders as follows:


(a) Stay is refused.
(b) Applicant/Defendant to pay Plaintiff (Respondent in Stay) $500.00 costs within 7 days.

Chaitanya Lakshman
Resident Magistrate
23rd July 2014


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