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Stinson Pearce Ltd v Jamnadas Sports (Fiji) Ltd [1992] FJHC 60; Hbc0462d.91s (30 November 1992)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 462 OF 1991

BETWEEN:

STINSON PEARCE LIMITED
(heretofore called PACIFIC MERCANTILE COMPANY LIMITED)
having its registered office at Motibhai Buildings, Industrial Road, Nadi
Plaintiff

AND

JAMNADAS SPORTS (FIJI) LIMITED
having its registered office at McGowan Building, Thomson Street, Suva
Defendant

Mr. J.G. Singh: For the Plaintiff
Mr. H.K. Nagin: For the Defendant

Date of Hearing: 25th November 1992
Date of Ruling: 30th November 1992

RULING

On the 2nd of September 1992 I gave Judgment in favour of the Plaintiff on a Summons for Summary Judgment for Possession of premises consisting of two shops and part of another shop in the ground floor of a building at the corner of Marks, Margaret and Cumming Streets, Suva sub-let by the Plaintiff to the Defendant under a Sub-Lease Agreement originally dated the 5th of May 1983 which was renewed to the 30th of June 1991.

On the 16th of September 1992 the Defendant filed a Notice of Motion for Stay pending appeal to the Court of Appeal and I heard argument on this motion on the 25th of November.

Although normally an Applicant for a stay must file an affidavit in support of its motion in this case this was not done because on the 23rd of October the Plaintiff swore and filed an affidavit in opposition to the Defendant's motion, the Defendant then swearing and filing an Affidavit in Reply with a further Affidavit in Reply being filed by the Plaintiff on the 9th of November. The Defendant seeks a stay principally on the ground that to refuse a stay would render its appeal nugatory. It also claims that since the judgment appealed from is a summary judgment it should be given an opportunity to ventilate the matter in the Court of Appeal and that on the balance of convenience the status quo should be maintained. It also says that were I to refuse a stay it would be forced to seek alternative premises from which to carry on business and that, contrary to the Plaintiff's submissions, damages will not provide an adequate remedy for it should its appeal be successful.

On the other hand the Plaintiff says that the Defendant has taken a debenture to the National Bank of Fiji in October 1992 over its assets and undertakings and the Plaintiff therefore fears that it has no safeguards to recover the arrears of rent and mesne profits and damages which it is suffering and which are continuing to mount each day the Defendant remains in occupation of the Plaintiff's premises. The Plaintiff also says that it is being deprived of carrying out long-delayed plans and development to the property as a result of the Defendant's refusal to yield up possession. The Plaintiff says that the balance of convenience clearly lies in refusing the stay pending appeal and that it is entitled to the fruits of its judgment.

The rental under the lease is $718 per month but none of this has been paid since the 1st of July 1991 although one month's rent was tendered by the Defendant to the Plaintiff but rejected on the ground that the Plaintiff is determined to obtain possession and did not want in any way to be assumed to possibly renewing the tenancy by subsequent payment of rents.

It is agreed that an arbitration award substantially increasing the rent has been made but this is subject of an appeal to this Court.

In my Ruling in Judicial Review No. 16 of 1991, State v. Transport Control Board and Vatukoula Express Service, Ex-parte: Sunbeam Transport Limited delivered on the 30th of December 1991 I considered several of the authorities relevant to the question of when a stay of execution pending an appeal will be granted. The golden thread running through these decisions is that a stay of execution will normally only be granted in cases where failure to grant it could result in the Appellant's appeal, even if successful, being rendered nugatory. See - Khairul Nisha and Mohammed Alim Khan and Another v. Ba Meat Company, Lautoka Civil Action No. 114 of 1980 in which Dyke J. considered some of the relevant authorities, and Civil Appeal No. 29 of 1990 Anup Kumar v. Ashok Kumar Makanji, a decision of Sir Moti Tikaram RJA, and Wilson v. Church (No. 2) [1879] UKLawRpCh 233; (1879) 12 Ch. D. 454 at pp.458-9. In the latter case Cotton, L.J. with whom Brett, L.J. agreed said that in deciding whether or not to grant a stay the Court of Appeal had to recognise that if the House of Lords should reverse their decision (and the Court had to consider that possibility), the appeal ought not to be rendered nugatory.

Counsel for the Defendant before me ventured to say that most judges consider their decisions right and tend to look somewhat askance at an appeal from any of their judgments.

I would have to join issue with such a statement because some of the great judges of the past including to name three, Lord Atkin, Sir Owen Dixon and Lord Denning knew what it was to be over-ruled. Indeed one of Sir Owen Dixon's favourite quotations, which he even dared to apply to a State Chief Justice - was Cromwell's advice to the clergy of Scotland, "I beseech you, in the bowels of Christ, think it possible you may be mistaken." Conscious of that advice, and with I hope, all due humility, I now turn to the question before me.

Counsel for the Plaintiff first submitted that before the Defendant could be given a stay I had to be satisfied that the Defendant had been completely frank with the Court. He reminded me of my Ruling on an application for stay of execution on Judgment in Action No. 7 of 1990 Peter Ernest Jones and Algar Keith Tozer v. Maurice Leicester Chatfield, Richard Ernest Yates and Warwick George Mathieson which I delivered on the 4th of July 1991. One of the reasons why I refused to grant a stay in that case was that I was strongly persuaded that the Defendant had not been completely frank with the Court as to his means of satisfying the judgment. Counsel referred me to the assertion by the Defendant in paragraph 17 of his Affidavit in Reply in the present case that City Rates were never payable by the Defendant but by the Landlord which is Plaintiff in this case. Counsel referred me to a letter dated 14th September 1982 from the Defendant to the Plaintiff in which the Defendant had offered to pay among other things a proportionate share of the rates levied on the building and to paragraph 11 of a document dated 29th October 1982 entitled "Heads of Agreement" between the Plaintiff and the Defendant. Paragraph 11 of this document reads: "Jamnadas will pay its proportional share of all rates levied on the building and will pay for all electricity, water, gas and other utilities consumed."

I think there is some force in this claim but on its own it does not satisfy me that it is sufficient reason for refusing the Defendant's present application. Then Mr. Singh referred me to some remarks of Mr. Justice Young in the Supreme Court of New South Wales in Milchas Investments v. Larkin (1989) 96 F.L.R. 464 at 478 which I quoted with approval in the Ruling I delivered on the 30th of December 1991 in Judicial Review No. 16 of 1991, State v. Transport Control Board and Vatukoula Express Service, Ex-part: Sunbeam Transport Limited In that case I refused a stay of execution on a judgment refusing the Applicant leave for Judicial Review of decisions of the Transport Control Board but my principal reason for refusing leave was that I held the application for Judicial Review to be premature. Milchas Investments v. Larkin was an action in the expedition list of the Supreme Court of New South Wales for the removal of a caveat lodged in respect of the Plaintiff's land. In a cross-claim the Defendant claimed specific performance of a contract by which he said he had purchased the property in question for $10.2m. An auction of the property in issue was to be held nine days after the hearing in the Supreme Court began and six days after His Honour delivered his judgment. The judge rejected the Defendant's cross-claim whereupon the Defendant applied for a stay of the order removing the caveat. The basis of the application was that the Defendant wished to consider whether he should lodge an appeal and under the Rules of the New South Wales Supreme Court he had twenty-eight days to make that decision. Mr. Justice Young refused the application for a stay and in the course of doing so made the remark which I quoted with approval in my Ruling in Judicial Review No. 16 of 1991 namely:

"Another factor is that prima facie the judgment I have just given is correct and the successful party should not be deprived of the fruits of that victory."

Whilst I considered that remark appropriate for the facts of the case then before me in my view it is only one of the matters which the Court should consider on application for a stay.

Immediately before the words I quoted from Mr. Justice Young he had said this:

"It must not be forgotten that the present case was one in the expedition list, which was commenced on 19 May and finally determined on 8 June because it was a matter of great urgency that each party knew where they stood because the auction was scheduled for 14 June. It seems to me that when a case is in that category then a stay pending considerations of an appeal is less likely to be given than in other types of litigation because if a time longer than it has taken for the whole case to come on for trial and to be disposed of is granted to consider an appeal, then the whole purpose of the expedition list is thwarted. That is one factor to be taken into account."

Immediately after the passage I quoted in Judicial Review No. 16 of 1991 Mr. Justice Young concluded his remarks on the subject by saying:

"In the instant case, there is also to be taken into account the fact that the cross-claimant can bid at the auction or take steps before the auction to purchase the property and that if his appeal is successful and he has purchased the property, even for a price higher than $10.2 million, his claim will really come down to a damages claim."

In my opinion the facts of this case are sufficiently different to justify my granting the stay requested by the Defendant. It was put to me by the Defendant's counsel that position is all important, and probably the most important factor in a businessman deciding where he is to set up his business. In the present case the Defendant is now well established in the Plaintiff's premises and undoubtedly will suffer some loss and certainly inconvenience in having to vacate those premises. It may well be that it could be compensated by an award of damages but certainly there could be no question of an auction of the property as there was in Milchas Investments v. Larkin.

I am not satisfied on the material that the Defendant is seeking to abuse the process of the Court. In all the circumstances I consider it would be fair to allow him to contest my judgment in the Court of Appeal but this right must be subject to two conditions:

(1) That the Defendant pay to the Plaintiff within fourteen days of the date of this Ruling rent at the rate of $718 per month from the 1st of July 1991 to 1st of January 1993 an amount which I calculate as $12,924 and thereafter rental at the rate of $718 per month until this litigation is concluded.

(2) The Defendant pay the Plaintiff's costs of this Motion.

There will be orders accordingly.

JOHN E. BYRNE
J U D G E

HBC0462D.91S