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Quadrant Developments Fiji Ltd v Davis [2010] FJHC 9; HBC138.2009L (22 January 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 138 of 2009L

BETWEEN:

QUADRANT DEVELOPMENTS FIJI LIMITED
Plaintiff

AND:

BRUCE WILLIAM DAVIS
1st Defendant

AND:

BURROWES INVESTMENTS LIMITED
2nd Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing:Ms T. Draunidalo for the Plaintiff
Mr B. Singh for the Defendants

Solicitors: Tupou Draunidalo Law for the Plaintiff
Babu Singh & Associates for the Defendants

Date of Hearing: 9 December 2009
Date of Judgment: 22 January 2010

INTRODUCTION

[1] On 30 September 2009, I ordered that the Defendants pay to the Plaintiff within 3 days the sum of $75,422.81 and interest thereon and costs of $800 within 14 days. The Order was sealed on 9 October 2009.

[2] On 21 October 2009, the Defendants filed a Motion for stay of my Judgment of 30 September 2009 pending appeal and leave to appeal. When the Motion was called on 30 October 2009 I was informed that my orders in my Judgment had not been complied with. Counsel for the Plaintiff did not press for contempt of Court by the Defendants but I took a dim view of it and ordered that the moneys be paid into Court within 7 days before the Defendants’ application could be heard. The application was adjourned to 10 November 2009 for mention pending compliance by the Defendants.

[3] On the day before the mention the Defendants’ solicitors paid into Court the principal sum but not the interest component. That is to say, the Defendants were 2 days late and did not fully comply with my Court Orders. The interest component still remains unpaid into Court. I urge Mr Singh to impress upon his clients that I view his clients’ contempt very seriously. No explanation has been given as to why the Court Orders have not been fully complied with. I therefore take it that their disobedience is deliberate. I remind them of the seriousness of their contempt for the reasons given by Sir Moti Tikaram PA in Kelton Investments Ltd v Civil Aviation Authority of Fiji [1995] FJCA 15; Abu0034d.95s (18 July 1995):

Every Judge must be allowed to protect and maintain the dignity and authority of his Court. Otherwise the judicial system will fall into disrepute and the authority of the Courts will be compromised and their influence diminished. This is neither in the public interest nor in the interest of legal practitioners. The Courts derive their authority and respect largely from the sanctions that attach to orders they make.

[4] I will therefore re-order that they pay the outstanding interest into Court. If they fail to comply with this Order strictly this time, they will be summoned to appear before me to explain why they did not comply and be dealt with accordingly, which may include this Court refusing to hear them and allowing the Plaintiff to prove its claim in their absence.

[5] On 29 October 2009 the Plaintiff filed a Motion for orders to stop the Defendants from continuing construction of the residence at 26 Marina Point, Denarau Island.

[6] The Master gave Directions for the filing of affidavits and eventually both applications came before me for hearing on 9 December 2009. This is my Judgment.

THE PLAINTIFF’S APPLICATION FOR INJUNCTIONS

[7] I will first deal with the Plaintiff’s application. In my Judgment of 30 September 2009, I said that I did not think that damages are not an adequate remedy and refused to grant the injunctive relief sought by the Plaintiff. I am still of the same view and therefore dismiss the Plaintiff’s Motion filed on 29 October 2009.

THE DEFENDANTS’ APPLICATION FOR LEAVE TO APPEAL

[8] My Judgment of 30 September 2009 is an interlocutory judgment so the Defendants need leave to appeal: Goundar v Minister for Health [2008] FJCA 40; ABU0075.2006S (9 July 2008) and Section 12(2)(f) of the Court of Appeal Act.

[9] The time limited for appeals from interlocutory orders is 21 days: Rule 16(a) of the Court of Appeal Rules.

[10] It runs from the date the judgment is sealed: Pacific Agencies (Fiji) Ltd v Spurling [2008] FJSC 27; CBV0007.2008S (17 October 2008) – the Supreme Court overruling Raj v Shell Fiji, Civil Appeal No. ABU0039 of 2007S.

[11] The Order was sealed on 9 October 2009 so 21 days from that day fell on 30 October 2009. The Defendants’ application was filed on 21 October 2009 so it was within the time limited by the Rules and this Court therefore has jurisdiction under Rule 27 of the Court of Appeal Rules to hear the application and extend the time to file the Notice of appeal should leave be granted.

THE LAW

[12] The law is well settled. Leave is granted only in exceptional circumstances: per Sir Moti Tikaram PA in Kelton Investments Ltd v Civil Aviation Authority of Fiji [1995] FJCA 15; Abu0034d.95s (18 July 1995):

Principles on which leave is normally granted or refused

I am mindful that Courts have repeatedly emphasised that appeals against interlocutory orders and decisions will only rarely succeed. As far as the lower courts are concerned granting of leave to appeal against interlocutory orders would be seen to be encouraging appeals (see Hubball v Everitt and Sons (Limited) [1900] UKLawRpKQB 17; [1900] 16 TLR 168).

Even where leave is not required the policy of appellate courts has been to uphold interlocutory decisions and orders of the trial Judge - see for example Ashmore v Corp of Lloyd's [1992] 2 All ER 486 where a Judge's decision to order trial of a preliminary issue was restored by the House of Lords.

The following extracts taken from pages 3 and 4 of the written submissions made by the Applicants' Counsel are also pertinent:

5.2 The requirement for leave is designed to reduce appeals from interlocutory orders as much as possible (per Murphy J in Niemann v. Electronic Industries Ltd [1978] VicRp 44; (1978) VR 431 at 441-2). The legislature has evinced a policy against bringing of interlocutory appeals except where the Court, acting judicially, finds reason to grant leave (Decor Corp v. Dart Industries 104 ALR 621 at 623 lines 29-31).

5.3 Leave should not be granted as of course without consideration of the nature and circumstances of the particular case (per High Court in Exparte Bucknell [1936] HCA 67; (1936) 56 CLR 221 at 224).

5.4 There is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. The appellant contends the Order of 10 May 1995 determines substantive rights.

5.5 Even "if the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to effect a substantial injustice by its operation" (per Murphy J in the Niemann case at page 441). The appellant contends the order of 10 May 1995 determines substantive rights.

5.6 In Darrel Lea v. Union Assurance (169) VR 401 at 409 the Full Court of the Supreme Court of Victoria said:

"We think it is plain from the terms of the judgment to which we have already referred that the Full Court was stating that error of law in the order does not in itself constitute substantial injustice, but that it is the result flowing from the erroneous order that is the important matter in determining whether substantial injustice will result."'

APPLICATION OF THESE PRINCIPLES TO THE CASE

[13] The Proposed Grounds of Appeal fall into two main categories, first, want of jurisdiction to hear and determine this action, and second, that I was wrong in ordering payment of $75,422.81 when the amount is said to be disputed.

[14] I will deal first with the second category of Grounds of Appeal. The moneys that I ordered to be paid to the Plaintiff have now been paid into Court. It is often a condition for leave to appeal and stay pending appeal that the judgment sum is ordered to be paid into Court pending determination of the appeal. The Defendants are therefore not in an unusual or a position of disadvantage. So, if I have made an error of law in ordering payment, which I do not accept, there is no substantial injustice to them if I refuse leave to appeal. If they succeed at the trial their moneys will be paid back to them. On the other hand if they lose then the moneys will be paid to the Plaintiff. This Court can make an order for payment of interest in either case to compensate for being deprived of the funds whilst awaiting trial.

[15] Conflicting affidavit material is not a sufficient ground for granting leave to appeal. It does not constitute exceptional circumstances.

[16] As to the second main category of Grounds of Appeal, the jurisdiction point, that can be taken up after trial. If the Defendants lose at the trial and wish to take up the point on appeal, an appropriate order for stay would protect their interests. On the other hand, the delay that would be caused by allowing the point to be taken on appeal now, considering the limited sittings of the Court of Appeal, could be considerable. It may well be that the appeal would not be heard until 2011. For a commercial matter such as this, I think the long delay would be quite unacceptable to both parties.

[17] I think the time that would be taken up on an appeal of my interlocutory Judgment would be better utilised by the parties getting themselves ready for an early hearing which I will accommodate, despite the already heavy list for this year.

[18] Taking all these matters into account I think considerable injustice to the parties and inefficient use of judicial resources would result if the appeal is allowed to proceed. I therefore refuse leave to appeal.

[19] It is therefore not necessary for me to consider the stay application.

COSTS

[20] Neither party has effectively won so I make no order as to costs.

ORDERS

[21] The Orders are therefore as follows:

1. The Plaintiff’s application by Motion filed on 29 October 2009 for injunctions is refused.
   
2. The Defendants’ application by Motion filed on 21 October 2009 for leave to appeal and stay pending appeal is refused.
   
3. The Defendants shall pay into Court within 7 days interest on the principal sum of $75,422.81 calculated according to clause 73 of the Contract from 9 June 2009 to the date of payment.
   
4. The moneys paid into Court by the Defendants shall be held pending final determination of this action or until further order of the Court.
   
5. There is no order as to costs.
   

............................................................
Sosefo Inoke
Judge