DN v CW [2015] FJMC 159; File No 10-SUV-0385 (30 September 2015)

IN THE FAMILY DIVISION OF THE MAGISTRATE’S COURT AT SUVA

FILE No: 10/SUV/0385

BETWEEN:

DN

Applicant

AND:

CW

Respondent

______________________________________________________________________
APPEARANCES/REPRESENTATIONS

Mr Niubalavu for the Applicant
Respondent - Absent and Unrepresented

Introduction

1. The Applicant filed a Form 9 Application on 4^th November, 2014 seeking an order that the interim order delivered by the learned Resident Magistrate Mr. Tomasi Bainivalu dated 16^th November 2010 be stayed permanently.
   
2. As per record, the Respondent was duly served by a way of substitute service. The Respondent failed to appear before the court and was unrepresented. The matter proceeded on formal proof on 1st July 2015 and Counsel for the Applicant filed evidence in chief and subsequently filed written submission with the leave of the Court. The Applicant also relied on his Form 9 Applications for Final Orders.

The Facts

3. The Applicant stated that the applicant and the Respondent were legally married and then divorced. After their dissolution of marriage, the Respondent, moved abroad and settled with someone else. The Respondent has never contacted the Applicant after the dissolution of marriage and is now living with her new partner.
   
4. The Respondent filed a Form 12 and 23 applications before the Court seeking that the property situated at Verata, being Lot 00Sec 111, DP 126 containing 1 rod in Freehold title number 227710 be restrained from selling, transferring, gifting or being encumbered or disposed off by the applicant.
   
5. The property in question initially belonged to the Applicants late father RN who passed away leaving a Will in which the Applicants mother SW and the Applicant are the beneficiaries. The property in question was not bought by the Applicant in the course of his marriage to the Respondent rather was bequeathed to him through his late father’s estate.
   
6. The Respondent restrained the Applicant from disposing off the property through an interim Order was made against the Applicant without his knowledge and he only came to find out about the order when the same property was subjected to proceedings in the High Court.
   
7. The Applicant mother SW filed an action against Applicant to give her share of the property in question to her through a civil case number 14 of 2011. Through the same action the Court had delivered a Judgment on the 1^st day of August 2013.
8. The Judgment was delivered it was brought to the Applicants solicitors and the High Court’s attention by the Plaintiffs’ counsel that there was an interim order imposed on the property or dispose off the property in question. The Applicant now seeks to permanently stay the interim order.
   

The Determinations

9. The applicant submits that the interim order made by the family Court in which the applicant was restrained disposing off the property in question should be permanently stayed. The Applicant relies on his Form 9 filed in Court and also on the fact that the Application is followed with an Affidavit of service. The respondent has shown no interest to appear in court to oppose the orders sought by the Applicant therefore the application at hand remains undefended.
   
10. That through the same action the High Court had delivered a Judgment on the 1^st day of August 2013 inter alia as follows:
    1. That within 28 days from the Judgment, the Plaintiff appoints a valuer to carryout valuation of the property. The valuer to be acceptable to the Defendants solicitors
    2. The cost of the valuation to be shared between the parties.
    3. The opportunity should be given to the defendant to purchase half a share of the Plaintiff within 90 days from the date of valuation
    4. In the event of Defendant not being able to purchase half the share of the Plaintiff, the Plaintiffs solicitors shall advertise the property for the sale by written tender in an at least two issues of a newspaper circulating in Fiji.
    5. Tender shall be opened in the presence of the Defendants solicitors.
    6. Sale shall be to the highest tenderer who is to pay all costs and disbursements a transfer usually paid by the purchaser.
    7. On a tender being accepted transfer shall forthwith be prepared by the defendant’s solicitors who shall obtain his clients execution thereto and shall forward some of the Plaintiffs solicitors who shall hold it until purchaser of the property is in a position to settle.
    8. Forthwith upon settlement the Defendants Solicitors shall pay into Court the Settlements moneys and furnish an account of disbursement and costs incurred by the Plaintiff in the sale of the property.
    9. Within one month after payment into Court of the said moneys, each party to furnish to the other and file in Court his or her claim in respect of the sale moneys supported by documentary evidence of payments alleged to have been made or expenses incurred in the purchase of the property.”
11. The applicant further submitted that if the Court believes that the Respondent might have an interest in the property then the Respondent may file any application to show her interest in the property.
    
12. The Court also noted after perusing the court record that on 10 December 2010 that the respondent lady “informed the Court that she does not wish to have the property (Form 9) substantive matter proceeded. She only wish to have the interim order made on the 16 November 210 continue.”
    
13. The Court also notes that the respondent has not made any substantive application to claim her interest in the property and after the interim order to restrain the disposing off the property was made the Respondent has made no attempts to file any applications for her share (if any) to be given to her.
    
14. Furthermore, the respondent has failed and neglected to move the court for any property distribution in the property in question as such the respondent has shown no interest in the property and therefore has not made any applications for her share of the property under matrimonial property.
    
15. The principles' governing a Stay has beened thus in Halsburysbury's Laws of England (4th Ed. Vol. 37 para 696):

The Court considering a Stay should intount tle fong queg questions. They were the principles set out by the Court of&#16f App0;Appeal and apd suesequently anliednlied ently in this Court. They were summarized in Natural Waters of Viti Ltd v Crystalystal Clea Clear Mineral Waters (Fiji) Ltd Civil&#16eal&#ABU0011.04S 18th March 2005. They are:

p>"(a) whether, if no stay isted, pplicpplicant's righ right of ap#160;will be rendered nugd nugatory (this is not determinative). See Philip Morris (NZ) Ltd v Liggett & Myers Tobao (NZ 1977LR 41 (CA).

(b) Whether ther the suhe successful party will be injuriously afly affected by the Stay.

(d) The effect on third parties.

(e) The novelty and importance of questions involved.

(f) The publicublic interest in the proceedings.

i>(g) The overall balance of convenience and the status quos quo."

16. In the present case there is no issue in respect of a pending Appeal.
    
17. The applicant refers to the case of Jennings Construction Limited v Burgundy Royale investments Pty Ltd 161 CLR Page 681 which dealt with an application for a stay when special leave was been asked for to appeal to the High Court of Australia. In that case the High Court gave a stay saying that if a stay is not granted the security the liens in that case gave to the applicant for payment of monies would be lost as the respondent would sub divide the land and sell the same.
    
18. The high court in Jennings case also held that it is relevant to consider the following:-
    
    1. Whether there is substantial prospect that special leave will be granted.
    2. Whether the applicant has failed to take steps to seek a stay from the court where the matter is pending.
    100. Whether the grant of a stay will cause loss to the Respondent.
    4. Where the balance of convenience lies.
       
19. I am of the view that the applicant should have raised about interim restraining order in the High Court before the Judgment or else should have sought for a stay before the said Judgment was delivered but the applicant submits that he has filed his application as soon as practical upon finding out there was an interim order made by the court.
    
20. As already noted the applicant submits that in this case stay should be granted as there is no application filed by the respondent seeking her share in the property in question as such there is no “significant prospect” that the respondent may succeed in her application to have the interim orders made final.
    
21. Also the stay would not cause irreparable loss or damage to the respondent.
    
22. The balance of convenience required that the status quo as existed prior to the interim Order be maintained. The High Court Judgment was being non functus if a stay is not granted in this matter.
    
23. A stay will not cause any irreparable loss to the Respondent as she has left the application in abeyance and there is no application to seek final orders filed by the Respondent. Having noted the principles on stay in relation to this application this Court finds that for the reasons given here above the balance of convenience is in favour of a stay being granted and the subject matter of litigation being preserved.
    

ORDER

1. The Application for Stay granted.
   
2. Parties to bear their own costs.
   

Right of Appeal – 30 days.

LAKSHIKA FERNANDO (MS)

RESIDENT MAGISTRATE

DATED AT SUVA on this 30^th day of September 2015.