Olmi v Credit Corporation Finance Ltd [2019] PGSC 35; SC1808 (10 May 2019)

SC1808

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 54 OF 2019

BETWEEN
AIWA OLMI
First Appellant

AND
KOTS INVESTMENTS LIMITED
Second Appellant

AND
CREDIT CORPORATION FINANCE LIMITED
First Respondent

AND
SAVVANA LIMITED
Second Respondent

Waigani: Dingake J
2019: 10^th May

SUPREME COURT – practice and procedure – application for stay – principles of stay application in McHardy case – consideration of – grounds of stay not in favour of grant of stay – application for stay dismissed

Cases Cited:

McHardy v Prosec Security and Community Ltd [2000] PNGLawRp 279.

Counsel:

Mr. Philip Ame, for the Appellants
Mr. Justin Haiara, for the Respondents

10 May, 2019

1. DINGAKE J: This is an urgent application to stay the orders granted by the National Court made on the 16^th of April, 2019.
2. The application is made pursuant to Section 19 of the Supreme Court Act and Section 155(4) of the Constitution.
3. The application for stay filed on the 18^th April, 2019 sets out the grounds upon which the application is founded. A Notice of Appeal is also filed of record capturing the grounds of appeal.
4. The ground that looms large in the said application is that the learned Judge decided on a Cross Claim when there was no Cross Claim instituted under the National Court Rules.
5. The applicant/appellant also complains that the manner in which the learned Judge dealt with the Cross Claim was unfair and violated the rules of natural justice. The learned Judge is also faulted by the applicant for relying on affidavits that she should not have relied on.
6. The applicant avers that he wanted to give evidence in rebuttal in particular in the form of letter of the 5^th of September, 2018, but was denied such opportunity.
7. The applicant has not attached the Orders of Thompson J complained of or any transcript, with the result that I am unable to verify his averments with respect to what really transpired in Court.
8. I have found the affidavits filed in support of the application least helpful in many respects on account of the paucity of the averments. Firstly, the applicant does not aver, explicitly, the circumstances that render this matter urgent and why he cannot be afforded redress in due course.
9. In my mind, and on the evidence before me, the application is not urgent and is liable to be dismissed on this ground alone.
10. However, in the event I may be wrong in holding as I do that the application fails to establish urgency, I turn to a consideration of whether the application has met the requirements of the granting of stay.
11. The requirements on stay pending appeal were set out in the leading case of McHardy v Prosec Security and Community Ltd [2000] PNGLawRp 279.
12. The following are the principles which the Court hearing an application for stay is required to consider and have regard to in the exercise of its discretion whether or not to grant a stay:
    1. The judgment creditor is entitled to the benefit of judgment.
    2. Whether leave to appeal is required and it has been obtained.
    100. Whether there has been any delay in making the application.
    4. Possible hardship, inconvenience or prejudice to either party.
    5. The nature of Judgment sought to be stayed.
    6. The financial ability of the applicant.
    7. Preliminary assessment about whether the applicant has an arguable case on a proposed appeal.
    8. Whether on the face of the record of the Judgment there may be apparent error of law or procedure.
    9. The overall interest of justice.
    10. Whether damages would be sufficient remedy.
13. The first consideration, namely, that the judgment creditor is entitled to the benefit of judgment, favours the second respondent.
14. Leave to appeal in this matter is not required and there has been no delay in making the application.
15. On the evidence a stay would prejudice the second respondent who is entitled to enjoy the fruits of the judgment.
16. The nature of the judgment sought to be stayed is not clear. The judgment or orders of the Court have not been attached to the application; nor has any transcript of the proceedings been attached.
17. The applicant does not say in its papers why it could not attach the transcript of the proceedings leading to the decision complained of.
18. The financial ability of the applicant is not canvassed and or proven in the supporting affidavits.
19. Without the transcript it is difficult to say whether the application has an arguable case or not. There is also no basis to say the Court below committed any error.
20. Given the inadequate supporting evidence in this application, the overall interests of justice require that the evidence direct its fate, namely, that given the paucity of the averments, the application ought to fail.
21. The view I take of the entire application is that the applicant has failed to establish, on a balance, the requirements necessary to grant him stay.
22. There is insufficient evidence to evaluate whether damages would be sufficient remedy or not, although on the surface, it would seem that damages may well be sufficient remedy.
23. In the result, this application is without merit.
24. In the premises:
    1. The application for stay is dismissed with costs.

___________________________________________________________
Ame Lawyers: Lawyers for the Appellants
Haiara’s Legal Practice: Lawyers for the Respondents