IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 496 OF 1992

Between:

PACOIL FIJI LIMITED
Plaintiff/ Respondent

and

1. ATTORNEY-GENERAL OF FIJI &
MINISTER FOR JUSTICE

2. FIJI TRADE AND INVESTMENT BOARD
Defendants/ Applicants

Mr. G. P. Shankar for the Plaintiff
Mr. D. Singh for the Defendants

DECISION

By Notice of Motion dated 26 April 1999 supported by an affidavit sworn by Mr. Daniel Singh, counsel for the defendants/applicants, an order is sought pending the determination of an appeal to Court of Appeal for a stay of execution of the judgment of this Court herein on the assessment of damages delivered on 16 April 1999, which said judgment was perfected on 19 April. 

Both counsel made written submissions and also argued orally before me.

Applicants' submission

Mr. Singh submitted that in this case if money is paid out to the respondent there will be no reasonable prospect of recovering it in the event of appeal succeeding (Atkin v Great Western Railway Co. Ltd (1886) 2 T.L.R. 400). It will be all the more difficult to recover because bulk of the damages will go to the Receiver/Manager of the respondent's property. But then there are numerous other creditors. On the other hand, Mr. Singh admits, as held in The Annot Lyle (1886) 11 P.D. 114 at p.116 C.A. and Monk v Bartram [1891] 1 Q.B. 346 that Court does not make a practice of depriving a successful litigant of the fruits of his litigation and locking up funds to which prima facie he is entitled pending appeal.

Mr. Singh does not deny that the respondent is entitled to seek further interim payment pursuant to Or.29 r10(5) of The High Court Rules and that the Court is entitled to award such interim payment as it considers just.

Respondent's submission

Mr. G.P. Shankar submits that the respondent is entitled to fruits of the judgment. He says, although he opposes stay, alternatively the whole sum must be paid into Court and the respondent and/or its Receiver can then apply for payment out.

Counsel argues that this is one of those cases which requires refusal of stay and release of the funds to pay off the creditors to avoid and eliminate accruing loss and damages i.e. inter alia, Receiver's charges and interest.

Mr. Shankar further submits that in considering this application, the Court is entitled to consider the prospect of success of appeal which he says is nil in respect of proposed grounds of appeal 1 to 5. These grounds pertain to award of interest which Mr. Singh submits should not have been awarded as it has not been pleaded. Ground 6 is in respect of award for economic loss and this ground is unmeritorious as on authorities this item of loss is recoverable.

It is the respondent counsel's submission that (1) stay be refused and (2) alternatively, the whole sum be paid into Court with liberty for respondent (by its Receiver/Manager) to apply for it to be paid out to eliminate and avoid further damages and (3) costs with counsel undertaking to refund if appeal is successful in the sum of $25,000 or such sum as court may consider fair.

Determination of the issue

During the hearing of the application Mr. Shankar has agreed to the grant of stay upon deposit of full amount of judgment into court.

Mr. Singh on the other hand will be satisfied with an order for $2,265,066 to be deposited into Court being made up of the amounts shown in items (b), (c), (d) and (g)(b) of the judgment (in assessment) as more particularly stated on pages 68 and 69 thereof. He would like 28 days within which to do that as it will take time to obtain the necessary approval for it from the Ministry of Finance.

Upon a careful consideration of the evidence before me and applying the principles involved on an application of this nature I grant the application upon payment into Court within 28 days of this decision the said sum of $2,265,066 and I so order. In doing so I have also considered the proposed grounds of appeal which in substance is against the award of interest in items (b), (c) and (g)(a) in respect of economic loss. Like Mr. Shankar I see no prospect of success in the Appeal as the respondent is entitled to interest and economic loss suffered based on the authorities referred to in the judgment.

I further order that the applicants pay to Mr. Shankar solicitor's costs in the sum of $12,000.00 on the counsel's undertaking to refund same should the situation arise that he is bound to repay. In regard to costs I have been informed that although costs have been awarded to the respondent previously nothing has been paid so far. This amount of $12,000.00 is also to be paid within 28 days of this decision.

For these reasons I grant stay of execution of the judgment on assessment of damages herein upon payment into Court by the applicants the said sum of $2,265,066.00 (two million two hundred and sixty-five thousand sixty-six dollars) within 28 days of this decision and which said sum the Chief Registrar is directed to place on interest bearing term deposit for a short term pending the hearing and determination of the appeal with costs to respondent which I fix at $300.00.

D. Pathik
Judge

At Suva
18 June 1999
HBC0496D.92S