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Thai Brickworks (Fiji) Ltd v Sun Enterprises Ltd [1992] FJHC 59; Hbc0283r.92s (25 November 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 283 OF 1992

Between:

1. THAI BRICKWORKS (FIJI) LTD.
2. PATTAMIKA DAMPRAPHA
Plaintiffs

- and -

1. SUN ENTERPRISES LTD.
2. KENNETH JOSEPH SEETO
Defendants

Mr. J. Howard for the Plaintiffs
Mr. V. Parmanandam for the Defendants

RULING

On the 27th of August 1992 this Court granted to the plaintiffs a 'mandatory injunction' sealed in the following relevant terms:

"(i) that a Mandatory Injunction is granted ordering the defendants or any of them to forthwith deliver up to the plaintiffs in the person of the second plaintiff or her authorised representative the brick-making machine set complete with accessories ..."

The order with an appropriate Penal Notice endorsed was served on the second defendant personally and on his then solicitors on the 3rd of September 1992.

It was made conditional however on the plaintiffs paying into Court a sum of $6,880. This was paid on the 10th of September 1992 as evidenced by a Fiji Revenue receipt issued in favour of Tavua Brickworks Ltd. Notice of payment into Court was served on the second defendant on the 14th of September 1992.

In the meantime however the defendants changed their solicitors and filed an inter partes summons seeking various injunctions and a stay of execution of the above order. This summons was later amended on the 23rd of September to include an application for leave to file a Notice of Appeal against the above order to the Fiji Court of Appeal.

Then on the 18th of September the defendants filed a Notice of Motion seeking leave to file an amended Statement of Defence, Set-off and Counterclaim which was allowed by the Court at the hearing of the present application.

To date nearly 3 months after the courts 'mandatory injunction', the brick-making machine has still not been delivered to the plaintiffs despite several attempts by the second plaintiff to obtain its release from the defendants' premises. Neither has the 'Payment into Court' been uplifted by the defendants nor have they requested or demanded payment of the sum as they are clearly entitled to.

Against that background I come to consider the defendants application for leave to file a Notice of Appeal and for a 'stay of execution' of the Court's order of 27th August 1992.

Section 12(2)(f) of the Court of Appeal Act (Cap.12) provides inter alia that:

(2) No appeal shall lie -

(f) without the leave of the judge or of the Court of Appeal from any interlocutory order ... made or given by a judge ..., except in the following cases, namely:-

(ii) where an injunction ... is granted or refused."

From the above it is clear that the leave of this Court is not required having regard to the nature of the particular 'interlocutory order' sought to be appealed against. In the circumstances and erring on the side of caution leave is granted to the defendants to file a Notice of Appeal.

In doing so I make the observation that the defendants amended Statement of Defence and 'grounds of appeal' raised in the defendants proposed Notice includes "a claim by way of lien and/or bailment for award (sic) in respect of the storage and installation of the said machine ...". With all due respect to the defendants' present counsel neither issue was raised in the defendants' original Statement of Defence or in the defendant's previous counsel's submissions to the Court. Indeed the defendant's amended Statement of Defence appears to confirm this fact.

I say no more about the defendants' 'grounds of appeal' and turn to the more important application for a 'stay of execution'.

In this regard Rule 25 of the Court of Appeal Rules provides:

"(1) Except so far as the Court below or the Court of Appeal may otherwise direct -

(a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the Court

below;

(b) no intermediate act or proceeding shall be invalidated by an appeal."

In this latter regard it may be noted that pending the hearing of this application which had to be adjourned on a previous occasion due to the absence of counsel for the defendants, the plaintiffs have issued no less than 3 applications seeking to enforce the Court's order, namely, by way of 'committal proceedings' against the second defendant for contempt; a Writ for Specific Delivery and a Writ of Assistance.

The defendants in their affidavit filed in support of the application for a 'stay of execution' seek to raise 'new grounds' and 'fresh evidence' for opposing the grant of the order in the first instance.

More relevantly the defendants depose to their fear that the removal of the machine would result in the loss of any prospect of recovering any damages from the plaintiffs of whom the second-named is a foreign national and who are alleged to "... have insufficient security and/or asset backing to meet a claim for damages". There is no evidence however from which it might be inferred that the first plaintiff company is insolvent or that the second plaintiff is preparing to leave Fiji.

In opposing the application the plaintiffs have filed an affidavit in reply denying the various matters raised in the defendants affidavit. In particular the plaintiffs depose that the brick-making machine the subject matter of the Court's order "... will remain in Fiji" and further "that the defendant was not owed anything apart from the reasonable costs and expenses of storage and that in furtherance there has been a payment into Court".

In my view the principle to be applied in the exercise of the Court's unfettered discretion on an application for a 'stay of execution' pending appeal is one of fairness to all parties bearing in mind the well known observations concerning "the fruits of litigation" on the one hand and "rendering rights of appeal nugatory" on the other.

In this regard if the question were simply one of allowing the defendants to continue to use the machine productively pending an appeal then I would be inclined to rule in their favour.

Several factors however weigh heavily against the defendants in this particular case in which the very basis of their possession and continued retention of the machine is strenuously disputed and denied. Additionally the defendants themselves are not using the machine and as this Court has already observed damages would be an adequate remedy in the event they should succeed in establishing the existence of an enforceable agreement.

Indeed counsel for the defendants appeared to concede as much at the hearing of this application in the event the plaintiffs paid the sum of $48,000 into Court.

In all the circumstances of the case balancing as best I can the various competing factors involved, I would exercise my discretion and refuse the stay of execution with costs to the plaintiffs.

(D.V. Fatiaki)
JUDGE

At Suva,
25th November, 1992.

Hbc0283r.92s