&nbs> THE ATTORNEY-GENERAL OF FIJIp class=MsoNormal align=center style="text-align: center; mer; margin-top: 1; margin-bottom: 1"> Defendant
(now the Applicant)
Mr S. Parshotam for Plaintiff
Mr S. Kumar for Applicant
Hearing: 11th October 2000
Decision: 17th October 2000
Decision on Application for Stay/p>
of Judgment Pending Appeal
On 20th June 2000 I delivered judgment in this case, finthat the Commissioner of Stamp Duties could not require registration of the
variation of moof mortgages, that the Commissioner had acted incorrectly in refusing to grant exemption from stamp duties on the
Mortgage lodged for stamping by the Plaintiff (now the Respondent) and that the Plaintiff was entitled to conditional exemption from
stamp duties on the Mortgage lodged by him at the Stamp Duties Office.
The Attorney-General has appealed against the decision,now asks for stay of the judgment on the grounds that there are merits in the
appeal.
The Respondent opposes the application on the ground that the appeal has no prospects of success, that a stay would cinconvenience
to the publicublic.
At the hearing of the stay application, counse the Applicant submitted that a stay was a matter of public importance because the State
wote would lose revenue if it were refused. He further argued that members of the public dissatisfied with a decision of the Commissioner
of Stamp Duties could simply apply to the Minister for Finance in the interim administration. Both counsel confirmed that the Respondent’s
mortgage had been stamped for exemption, and that a stay order would affect all other members of the public who applied for exemption
from stamp duties on variation of mortgage.
The principles relevant to an application for stnding appeal are set out in the decision of Pathik J in Attorney-General -v- FITB anTB and Pacoil Fiji Ltd. Civil Act No. 496 of 1992. At page 6 of his decision he said:
“The grant or refusal of a stay is a discretionary matter for the Court (A-G -v- Emberson (1889) 24 QBD pp 58-59). It will be granted where the special circumstances of the case so require. In exercising its discretion
the Court will weigh considerations such as balance of convenience and the competing rights of the parties before it (Emberson (supra).) Also where there is a risk that if a stay is granted and the assets of the applicants will be disposed of, the Court may,
in the exercise of its discretion refuse the application.”
In Linotype-Hell Finance Ltd. -v- Baker (1992) 4 ALL ER 887, it was further said that a ground for stay may be that the applicant would be ruined if the stay were refused, and that there was
some prospect of success. A phrase commonly used in applications for stay pending appeal, is that the appeal would be rendered “nugatory”
if the stay application is refused.
The only ground for this application according to the motion is “prospects of success.” The grounds of appeal are that thas an error
of law on the bthe basis of a non-consideration of the Schedule to the Stamp Duties Act, and on the fact that the Plaintiff was not entitled to exemption because the mortgage was lodged after six months since the original
mortgage was registered. These grounds were ventilated at the hearing of the summons, and Ground (2) relates only to the exemption
ordered in respect of the Respondent’s mortgage. Since the Respondent’s mortgage has already been stamped for exemption for the applicant,
the prospects of success on that ground have little relevance to this stay application.
Ground (1) however is capable of affecting members of the public who wish to have their mortgage documents stamped for exemptionr
variation on the basis ofis of further advances.
Counsel for the Applicant says that all such members of the public may simply make an application to the Minister if the Commission
refuses to grant exemption. Members of the public applying for exemption for variation, would (if this stay is granted) would have
the choice of either submitting a variation document to the Commissioner, or applying to the Minister for extension of time. As counsel for the Respondent commented, this
would appear to cause a much greater inconvenience to the public than compliance with the decision until and unless it is set aside
on appeal.
Furthermore the argument the Government will lose revenue if members of the public are grantedption without evidence of variation,
fails to be compellinglling. If the appeal is unsuccessful, all such members of the public would have wrongly been compelled to pay
stamp duty. Moreover, it presupposes a refusal of exemption even after the production of variation documents. Finally, no evidence
has been put before me of levels of revenue affected.
The judgment was delivered on 20th June 2000, and was perfected on the 23rd of June. From the 23rd of June to resent day, the Commissionesioner
has presumably been stamping mortgages for exemption on variation without documentary proof of variation. This included the stamping
of the Respondent’s mortgage. A change in policy four months later is unlikely to result in added convenience and certainty for the
public.
Whilst I accept that Ground (1) of the grounds of appeals raises a matter of law which will determine the Commissioner’s powers on
being requested for exemption from stamp duties in the case of a variation of a mortgage already stamped for exemption, I am not
satisfied that a stay is justified in all the circumstances. This is particularly so because the Commissioner has complied with the
judgment of the High Court since June 2000.
In all the circumstances including the nature and prospec success of the appeal the inconvenience to the Commissioner and to the public
and the effe effect of the success of the appeal on the Commissioner, I refuse this application for stay.
Costs are in the cause.
p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> Nazhat Shameem
JUDGE
At Suva
Hbc0141d.00s
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