Thao v Earthmovers (Solomons) Ltd [2001] SBHC 152; HC-CC 184 of 1998 (29 October 2001)

IN THE HIGH COURT OF SOLOMON ISLANDS

Case No. 184 of 1998

Between:

SAMUEL THAO AND OTHERS
(T/A Aola Timbers Export Agency)
Plaintiffs

-and-

EARTHMOVERS SOLOMONS LTD
Defendants

Hearing 5th October 2001
Judgment given 29th October

Mr Ashley for the Plaintiff
Mr Nori for the Defendants

Registrar Chetwynd - This is an application by the Defendant Company for a stay of execution of the judgment entered on 27th July. During the application by Mr Nori it became clear that this was an application to stay enforcement of the judgment pending appeal. Between the time that the summons was lodged and the application heard a notice of appeal has been filed in the Court of Appeal. That notice is dated 1st October and was filed on 3rd October.

There was no disagreement that an appeal in itself does not operate as a stay of execution. Mr Nori was concerned that if judgment was enforced and the appeal was successful then the Plaintiff’s would be unjustly enriched. Mr Ashley was concerned that this was merely delaying tactics and reminded me, quite rightly, of the basic premise that a litigant was entitled to enjoy the fruits of his litigation.

I have considered this matter at length but I feel I can dispose of the issue quite shortly. The judgment in this case has come about because of an “unless” order or guillotine order. The facts are set out in Palmers J’s judgment of 18th September but I can say in short that an unless order made on 20th June became effective on or about 4th July and judgment was signed 27th July. The Defendant’s sought orders from the Court following my refusal to list an application to vary the order of 20th June. Those applications were refused and the judgment remains.

Normally I would have no hesitation in refusing a stay. In this case I believe I can depart from the norm and grant a stay. The High Court case has not been decided on it’s merits. The judgment we are dealing with is akin to a default judgment. Not only that, I am aware (from my position as Registrar of the Court of Appeal) that there are several cases involving the effect of unless orders which will be heard by the Court of Appeal at it’s next sitting. I am also aware that the Court is set for the second week in December. I do not feel that, given the time that this case has taken to get this far, the Plaintiffs would be unduly prejudiced by having to wait for some 5 weeks until the Court of Appeal has dealt with this issue. There is no suggestion that the Defendant is taking any steps to divest itself of assets. A writ of Fi fa has already been issued and it will be a simple matter for the Sheriff to execute that writ once the Court of Appeal has made it’s judgment known.

In the circumstances I make an order that:-

1. Execution of the judgment be stayed pending the Defendants Appeal in respect of the Notice of Appeal dated 1st October 2001 and filed on 3rd October 2001.
   
2. Costs of the application be paid to the Plaintiff by the Defendant, such costs to be taxed if not agreed.
   

Dated this 29th day of October 2001

R D Chetwynd
Registrar High Court