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Shahim v Chand [2005] FJHC 273; HBC0300.2001 (2 December 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0300 OF 2001L

BETWEEN:

RAKESH CHAND f/n Jagjiwandas
Plaintiff/Respondent

AND:

MOHAMMED SHAHIM f/n Imam Mohammed
Defendant/Applicant

Mr. R. Chaudhary for the plaintiff/respondent
Mr. S. Maharaj for the defendant/applicant

Date of Hearing: 2 December 2005
Date of Ruling: 2 December 2005

EX TEMPORE RULING

The applicant/defendant applies by way of Notice of Motion filed on the 1^st December 2005 for leave to appeal to the Fiji Court of Appeal against the decision of this Court of the 2^nd November 2005, where I granted a stay on condition that the judgment debt be paid into Court.

The applicant/defendant also seeks a stay of the Court’s order of the 2^nd November 2005 until the determination of the appeal.

The Notice of Motion is supported by an affidavit sworn by the Claims Officer of the insurer of the defendant. Annexed to the affidavit relevantly is a copy of the proposed grounds of appeal which are two fold.

“1. That the learned judge erred in law and fact in the exercise of his discretion in not granting unconditional stay of the execution of judgment by taking into account irrelevant considerations unsupported by any evidence at all.

2. That the learned judge failed to consider properly the solvency of the defendant and the ability of it to satisfy the judgment in due course if unsuccessful on appeal having regard to all the evidence before it.”
   

A relevant consideration is the likelihood of success on appeal. I must say I fail to see any chance of either ground being successful. There is nothing in the ruling that deals with the solvency or insolvency of the defendant nor for that matter of the defendant’s insurer. It is indeed a very relevant consideration in considering a stay to consider whether the plaintiff will ultimately be in a position to receive the fruits of his judgment. It is perhaps the most important issue for the consideration of the Court on a stay application.

The Leave Application

Section 12 (2) (f) of the Court of Appeal Act requires leave to be granted on appeal from any interlocutory order or interlocutory judgment.

The test as to whether an order or judgment is interlocutory or final was expressed by the Full Court of the Supreme Court of Victoria in Niemann v Electric Industries Ltd [1978] VicRp 44; [1978] V.R. 431 as depending on the nature of the order or judgment and not on the nature of the application. The test advanced by Lord Alverstone CJ in Bozson v Altrincham Urban District Council [1903] UKLawRpKQB 44; [1903] 1 K.B. 547 at 548-549 is:

“Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.”

The application that was before the Court and is the subject of the ruling sought to be appealed was an application for a stay of execution of the judgment of this Court. That application was finally dealt with in the judgment of the 3^rd November 2005. That ruling finally disposes of the rights of the parties with respect to that stay application and accordingly, it is in my opinion not an interlocutory order and as such leave is not required.

The Stay Application

Counsel for the Applicant/Defendant has referred the Court to several authorities with respect to the application for a stay. Those authorities include Peter Elsworth & Anor v Yanuca Island Ltd – HBC0157 of 1997L where Mr. Justice Gates canvassed the relevant authorities with respect to the granting of stay applications.

The Court is also referred to the decision of the Fiji Court of Appeal in Natural Waters of Viti Limited v Crystal Clear Mineral Water (Fiji) Limited – Civil Appeal No. ABU0011 of 2004S delivered on the 18^th March 2005. In that decision Their Honours set forth the principles to be considered on stay application as they are expressed in the New Zealand text, McGechan on Procedure (2005). Those principles might be summarized as:

“(a) Whether, if no stay is granted, the applicant’s right of appeal will be rendered nugatory (this is not determinative).

(b) Whether the successful party will be injuriously affected by the stay.

(c) The bona fides of the applicants as to the prosecution of the appeal.

(d) The effect on third parties.

(e) The novelty and importance of questions involved.

(f) The public interest in the proceeding.

(g) The overall balance of convenience and the status quo.”

Dealing with the principles seriatim, if no stay is granted, the applicant’s right of appeal will certainly not be rendered nugatory.

The successful party, that is the judgment creditor, might be injuriously affected by the stay not being granted. He may be affected in that funds may not be available to meet the judgment debt when it is required in due course.

There is nothing before me to suggest a lack of bona fides of the applicant as to the prosecution of the appeal. However as I have said, it appears to have little chance of success.

The effect on third parties of the grant of the stay has not been addressed by counsel but on the material before the Court, I am unable to see any adverse effect.

There is no novelty in the question involved and similarly there is no public interest in the proceedings. The principal proceedings are proceedings for personal injury arising from a motor vehicle accident and accordingly the balance of convenience and the status quo in this matter lie in favour of the stay being refused.

It is submitted by Counsel for the Applicant that the material contained in the affidavit in support of the Notice of Motion including 3 pages of financial statements of the defendant’s insurer as at 31^st December 2004 is such as to satisfy the Court that the judgment debt would be able to be paid to the plaintiff if and when required in the future. It is nonsense to suggest that the 3 pages of financial information, currently 12 months old, has any bearing whatsoever on the ability of the defendant to meet the judgment debt at some unknown future date.

Conclusion

Based upon the material placed before the Court and the authorities to which I have referred and for the reasons that I have detailed above, I am of the opinion that leave to appeal is not required and accordingly, leave is refused. I am also of the opinion that on a proper assessment of the principles it is appropriate that the stay sought of the order on the 2^nd November 2005 should be refused and accordingly the Notice of Motion is dismissed.

The defendant/applicant is to pay the plaintiff/respondent’s costs of the Motion which I assess in the sum of Five Hundred Dollars ($500.00).

JOHN CONNORS
JUDGE

At Lautoka
2 December 2005