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Heaven on Earth in Kadavu Ltd v iTaukei Land Trust Board [2019] FJHC 517; HBC380.2018 (29 May 2019)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 380 of 2018

BETWEEN
HEAVEN ON EARTH IN KADAVU LIMITED
PLAINTIFF

AND
ITAUKEI LAND TRUST BOARD

DEFENDANT

APPEARANCES/REPRESENTATION
PLAINTIFF : Ms R Lal [Lal/Patel/Bale Lawyers]

DEFENDANT : Ms. Vakanavanua [Legal Department, iTaukei Land Trust Board]

RULING OF : Acting Master Ms Vandhana Lal

DELIVERED ON : 29 May 2019

INTERLOCUTORY RULING
[Stay of Execution of Judgment]

1. The Defendant seeks orders for stay of execution pending the determination of their summons dated 14 March 2019 for setting aside the Default Judgment.
   

According to them, the Plaintiff will not be prejudice by stay Order. The Defendant will be adversely affected if stay is not granted. The amount demanded by Plaintiff is quite substantial.

The Defendant is a statuary body mandated to administer all i-Taukei land within the Fiji Islands for benefit of the i-Taukei land owning units.

If stay is not granted, its finances will be impacted to the extent of affecting its operation and meeting its administrative and financial commitments.

The Default Judgment was obtained irregularly as the claim was for $1,375,000.00 claiming for loss of hotel operation without pleading the breakdown of the loss.

If stay is not granted, the Defendant’s application to set aside the Default Judgment will be rendered nugatory.

2. Ms. Lal counsel for the Plaintiff stated the application is opposed.
   

The proposed Statement of Defence puts the burden on the Plaintiff stating its Plaintiff’s faults. There is a no defence in the Statement of Defence.

The claim of loss arises from a Court of Appeal Judgment. The Plaintiff had a resort on the property the lease for which was cancelled by the Defendant.

3. Order 45 rule 10 of the High Court Rules reads:
   

“Without prejudice to Order 47, Rule 1 a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since which have occurred since the date of judgment or order and the Court may by order grant such relief, and in such terms, as it thinks just”.

4. Kamal J (as he was then) in Naidu v Fiji Forest Industries Limited a Labasa High Court Civil Action No. HBC 39 of 2011 (delivered on 13 October 2014) had outlined the Law in relation to stay of execution.
   

He held that “it is well established and undisputed that the Courts have unfettered discretion to either grant or refuse stay of execution. However, the discretion should be exercised judicially and in the interest of justice depending on circumstances of excess case”.

He cited the case of Chand vv. Lata a Labasa High Court Civil Action No. 38 of 2001 (delivered on 18 July 2008) which identified the principles of governing stay of execution:

1. The grant or refusal of a stay is a discretionary matter for the Court: , citing Emberson (1889(1889) 24 QBV 58, 58, 59
tyle='text-indent:0pt; margin-top:0pt; margin-bottom:0pt;' pt;' value='2' value="2"> The Court does not make a practice of depria sucul litigant of thof the fruits of litigation by locking up g up funds to which prima facie the litigant is entitled, pending an appeal: Fiji Sugar Corporatioiteimited v. Fiji Sugar & General Workers’ Union, citing Supreme Court Practice, p. 909; The Annot #160;(1886(1886) 11 PD, at 116 (CA); Monk v. Bartram&#160(189>(1891) 1 QBV 346
3. When a party is appealing, exercising aoubted right of appeal, the Court ought to see that the appe appeal, if successful, is not nugatory: Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union, citing Wilson v. Church (No.879) 12 ChD, at 459t 459 (CA)
4. If there is a risk the appill prove abortive if successful and a stay is nois not grat granted the Court will ordinarily exercise its discretion in favour of granting a stay: Fiji Sugrporation Limiteimited v. Fiji Sugar & General Workers’ Union, citing Scarborou Lew’s Ju;s Junction Stores Pty Ltd [1963] VicRp 20; (1963) VR 129, at i>
5. In exercising its discretion the Court will weigh cogh considerations such as balance of convee and the competing rights ghts of the parties before it: Fijar Corporation Limiteimited v. Fiji Sugar & General Workers’ Union, citing AG verson <
6. A s A stay will be granted where the special circumstances of the case so require, that is, they justify departurm the ordinary rule that a at a successful litigant is entitled to the fruits of the litigation pending the determination of any appeal: Prasad v. Prasad&#16>[1997] FJHC 30; Hbc0307d.96s (6 March 1997), citing Annot Lyle 18886) [1886] UKLawRpPro 31; 11 PD 114, at 116; ScarborougLev. LewRwRw’s Junction Stores Pty Ltd (1963) VR at 130; and sand see also Figar Corporation Limiteimited v. Fiji Sugar & General Workers’ Union<
7. In exen exercising its discretion the Court will weigh considerations such as balance of convenience and the competing rights of the parties before it: Fiji Sugar Corporatioiteimited v. Fiji Sugar & General Workers’ Union, citing AG v. Emberson
8. As a general rule, the only only ground for a stay of execution is andavit showing that if the damages and the costs were paid taid there is no reasonable probability of getting them back if the appeal succeeds: Fiji Sugar Corion Limiteimited v. Fiji Sugar & General Workers’ Union, citing Atkins v. GW Ry;> (1886) 2 TLR 400
9. Where there is a risk that if a stay is granted and the assets of the Applicant we disposed of, the Court may, in the exercise of its discreiscretion, refuse the application:
   

His Lordship also cited the case of Naturaers of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd a td a Fiji Court of Appeal, Civil Appeal No. ABU 0011 of 2004S ( delivered on 18 March 2005), where the Court of Appeal also discussed the principles of stay of execution: