2) &nbssp;&nnsp;&&nsp; tsp; the Learned Judge erned in dismissing the Appellant’s claimclaim by confining himself to the summons
for ejectment without considerin Appe’s cl
3) p;&nbbsp;&&bsp; &bsp; &nbbp;&nnbsp; &nb/span>Than>Than>That thet the Learned Judge took into accountlevanters and failed
to take relevant matters into account;
4) &nbbsp; &nsp; &nbbp;&nnbp;& &nbbsp; &nbp; That thened Jued Judge failed to properly consider the evidence, and that the decision is unreasonable.
It appears that, in effect there is one ground of appeal, and that is that the Learned Judge failed to consider the Appellant’s other
claims against the Respondent in considering the application for vacant possession under section 169 of the Land Transfer Act.
This application for stay was argued before me on 9th March 2001, in Byrne J’s absence fromcountry. Counsel for the Appellant submitted
that the appeaappeal would be rendered nugatory if stay were not granted, and that the appeal had merit. Counsel for the Respondent
submitted that the appeal had no merit, and that on a balance of convenience the service could not be expected to lie idle for an
indefinite period while the appeal was pending. It was agreed by Counsel that the Appellant had voluntarily vacated the premises
on 27th February 2001, and that any stay would affect the Respondent’s ability to offer a sub-lease to some other prospective tenant.
The principles relating to stay applications are now well-settled. As Gates J said in Atul Kumar Ambalal Patel -v- Krishna Murti Civil Action HBC 0225/99L:
“Once successful, the litigant should nghtly be deprived of the fruits of his successful litigation: The Annot Lyle [1886] UKLawRpPro 31; (1886) 11 PD 114 at 116 CA; Monk -v- Bartram [1891] UKLawRpKQB 15; (1891) 1 QB 346. The power of the court to grant a stay is discretionary ....... and it is “an unfettered discretion” Winchester Cigarette Machinery Ltd. -v- Payne and Anor (No. 2) (1993) TLR 647 AT 648.
If a stay was not granted by the Court at the timmaking the order now appealed against, the applicant must show that special circumstances
eces exist as to why a stay should now be imposed, and the successful litigant in effect held back from his remedy: Tuck -v- Southern Counties Deposit Bank [1889] UKLawRpCh 149; (1889) 42 Ch. D. 471 at 478 per Kay J.”
In Linotype-Hell Finance Ltd. -v- Baker (1992) 4 ALL ER 887, it was held that a stay may also be granted where the Applicant shows that it will be ruined if a stay is not granted.
The Appellant does not suggest that he will be ruif a stay is not granted. He says, in his affidavit of 27th of February 2001 that
he will bell be severely prejudiced if he is forced to vacate the premises. However he has already vacated the premises and there
appears to be no question of financial “ruin.”
There can be no doubt that the Respondent’s writ of possession greatly diminishe purpose of the Appellant’s appeal. His appeal is
renderendered nugatory in the sense that the Respondent will simply proceed to execute a sub-lease with a third party while the appeal
is pending.
However the Appellant left the premises himself. In any event I am not persuaded that there is merit in the appeal. The pending “actions”
in the High Court in relation to existing debts in respect of supplies of petroleum products, do not assist the Appellant in satisfying
the requirement of section 172 of the Land Transfer Act of showing cause by proving “a right to the possession of the land.” A section 169 application is limited in its terms, and is a
summary procedure.
As Pathik J said in Tradewinds Marine Ltd. -v- Tevita Fa Civil Action No. HBC0389J/93S, pending actions in thrt in respect of the same pame parties and the same premises do not prevent the
court from considering a section 169 application.
In Shyam Lal -v- Eric Martin Schultz 18 FLR 152, Gould VP said:
“....... I am in sympathy with the proion that complicated questions of fact (particularly where there are allegations of fraud) aud)
cannot adequately be investigated and dealt with on a summary proceeding in Chambers. The present case however, involved initially
no contested relevant fact and the learned Judge in my opinion rightly entertained and dealt with it.”
I am not persuaded given these authorities, that the appeal has merit. However, even if it had merit, the balanceonvenience clearly
favours ours the Respondent. This appeal may not be heard this year. The Appellant has vacated the premises, and the Respondent cannot
be expected to allow the premises to lie idle pending the hearing of the appeal.
For these reasons this application for stay pending appeal is refused. The Appellant must pay the Resnt $300 as costs of this application.
Nazhat Shameem
JUDGE
At Suva
14th March 2001
Hbc0431d.00s
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2001/11.html
