Osborne v Kumar [2016] FJMC 162; Civil Action 108.2012 (27 June 2016)

Magistrate’ Court

Civil Action # 108 of 2012

Sitting At Nausori

Between: Muniamma Osborne [Plaintiff/ Respondent in Stay]

And: Nishil Kumar

[Defendant/ Applicant in Stay]

Appearances/Representations:

For Plaintiff: MA Khan

For Defendant: Mr Sunil Kumar

___________________________________________________________

Ruling – Stay Application

Introduction

The Applicant in this matter has filed an application for stay pending the determination of the Defendants appeal. The motion was filed with an affidavit of the Defendant.

The Parties agreed to have the matter heard by way of written submissions.

The Law on Stay

In Estate Management Services Ltd .v. Pagenstecher [2012] FJHC 1175, the Court stated that "the principles governing the grant or refusal of a stay application pending appeal are well settled. The principles' governing a stay has been stated thus in Halsbury's Laws of England (4th Ed. Vol. 37 para 696):

"Two principles have to be balanced against each other as to whether a stay of execution pending the appeal should be granted: first that a successful litigant should not be deprived of the fruits of this litigation, and secondly, that an appellant should not be deprived of the fruits of a successful appeal.”

The Court considering a stay should take into account the following questions. The principles set out by the Court of Appeal and approved subsequently and applied frequently by the Courts. They were summarized in Natural Waters of Viti Ltd v Crystal Clear Mineral Waters (Fiji) Ltd Civil Appeal ABU0011.04S 18th March 2005. They are:

"(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."".

Analysis
This Court has noted the submissions made for each party. This Court has noted the principles set out by the Court of Appeal and approved subsequently and applied frequently by the Court’s and these have been summarized in Natural Waters of Viti Ltd v Crystal Clear Mineral Waters (Fiji) Ltd Civil Appeal ABU0011.04S 18th March 2005 and are as follows:

(a) Whether, if no stay is granted, the applicant's right of appeal will be rendered nugatory (this is not determinative).

(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 and the public interest in the proceedings.

(g) The overall balance of convenience and the status quo.
The above listed factors are not exhaustive and the consideration of 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' is not lost sight of by this Court.

The matter that was before the Court was one on issue of money given to the Defendant. The Court determined in the matter whether it was given as a gift or under an agreement. The Applicant seeking stay has not put arguable material before this Court on the issue how if no stay is granted, the applicant's right of appeal will be rendered nugatory, apart from incorrectly stating that the appellant is abroad and if successful the appeal will be nugatory. In fact the appellant is the Defendant, who is in Fiji, while the Plaintiff, the respondent in this application stays overseas. Similarly, the applicant has not shown to the Court whether the successful party will be injuriously affected by the stay. The affidavit of the Applicant does not contain any evidence on these very crucial issues. Simply annexing the grounds of appeal and stating that the Applicant has merit and likely to succeed is not enough. On an analysis of the materials before it the Court finds that the overall balance of convenience and the status quo would be against granting of stay.

Having considered all the above factors the Court refuses stay.

For the foregoing reasons the Court orders as follows:

(a) Stay refused.

(b) No order as to costs.

Dated at Nausori this 27^th day of June 2016.

.....................................

Chaitanya Lakshman

Resident Magistrate