IN THE MAGISTRATE’S COURT
AT SUVA
IN THE CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS
CIVIL JURISDICTION

Civil Action No: 327 of 2011

Joseph Civoniceva
Plaintiff

v.

Suliasi Kudruvi trading as Turtle Island and Landing Services
Defendant

For Plaintiff : Ms. R. Lal Bale (Lal Patel Bale Lawyers)
For Defendant : Ms. M Rakuita (MRV Legal Consultancy)

Ruling - Stay

Introduction

In this matter the Plaintiff had filed a Writ of Summons seeking judgment in the sum of $17,900, general damages for breach of contract, interest and costs (all to be within the jurisdiction of the Court). 

This Court on 19th March 2014 delivered a judgment in favour of the Plaintiff and ordered as follows:

(a)	That the Defendant pay the Plaintiff the sum of $11, 900.00 for the Charter.
(b)	That the Defendant pay the Plaintiff for the cost of food, supplies and other related miscellaneous expenses, sum being $6347.47.
(c)	That the Defendant pays the Plaintiff for general damages for loss of business sum being $30,000.00. 
(d)	 That the Defendant to pay costs to Plaintiff sum being $1500.00.
(e)	 The total sum to be paid by the Defendant is limited to the jurisdiction ($50,000.00) of this Court.

The Court also informed the parties if they were aggrieved with the judgment they had the right to appeal to the High Court within 28 days. 

A writ of FIFA was issued on the 28th day of April 2014. On 1st May 2014 The Court Sheriffs executed the FIFA and after taking the inventory gave the Defendant 5 days to settle the claim failing which the vehicles would be seized. A notice of intention to appeal was filed on 28th March 2014. A Notice of Motion for Stay of FIFA pending appeal was filed on 8th May 2014. 

The parties agreed to be heard by way of written submissions. Submissions had been made and have been considered by this Court.

The Law on Stay

In Estate Management Services Ltd v Pagenstecher [2012] FJHC 1175, Justice Balapatabendi laid down "The principles governing the grant or refusal of a Stay Application pending appeal are well settled.The principles' governing a Stay has been stated thus in Halsbury's Laws of England (4th Ed. Vol. 37 para 696):

"Two principles have to be balanced against each other as to whether a Stay  of Execution pending  the appeal  should be granted: first that a successful litigant should not be deprived of the fruits of this litigation, and secondly, that an appellant should not be deprived of the fruits of a successful appeal ."

The Court considering a Stay should take into account the following questions. They were the principles set out by the Court of Appeal and approved subsequently and applied frequently in this Court. They were summarized in Natural Waters of Viti Ltd v Crystal Clear Mineral Waters (Fiji) Ltd Civil Appeal  ABU0011.04S 18th March 2005. They are:

"(a) Whether, if no stay is granted, the applicant's right of appeal  will be rendered nugatory (this is not determinative). See Philip Morris (NZ) Ltd v Liggett & Myers Tobacco Co (NZ) Ltd 1977 2 NZLR 41 (CA).

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

Analysis

This Court has noted the submissions made for each party. This Court will address each question on the principles of stay pending appeal.

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

This Court notes that the Defendant (Applicant in Stay) needs to seek leave of the High Court to appeal out of time. According to this Court no appeal is on foot. If the Defendant is successful in his appeal the Plaintiff (Respondent in Stay) will be required to re-pay the Defendant. 

(b) Whether the successful party will be injuriously affected by the Stay –

If stay is granted to the Defendant (Applicant) the Plaintiff (Respondent in Stay) will be deprived of the fruits of its litigation. A successful litigant should not be deprived of the fruits of litigation.

(c) The bona fides of the Applicants as to the prosecution of the appeal –

The Defendant did not proceed to seek stay of judgment immediately and file notice of intention to appeal within time. Stay should have been sought immediately not when FIFA was issued. No appeal is on foot and as a result this Court cannot examine the merits of the appeal.

(d) The effect on third parties.

From the substantive action in this Court, this Court notes that the crew members and others were involved. They will be affected by not having their pay given to them. In any event if the Plaintiff (Respondent in Stay) has paid them why should he be denied the right to recover whatever he paid to the third party.

(e) The novelty and importance of questions involved and (f).The public interest in the proceedings.

This was a case involving contractual issues between the parties. While the case is important for both the parties it did not involve and novel or public interest issues. 

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

The overall balance of convenience favours the Plaintiff (Respondent in Stay) The Plaintiff/Respondent has received a judgment in his favour. He has executed the Judgment. He has acted timely and without delays. The Defendant/Applicant for his part has not appealed within time. No appeal is on foot. He waited until FIFA was executed to seek stay. 

For the foregoing reasons the Court orders as follows:

(a)	Stay is refused.
(b)	Applicant/Defendant to pay Plaintiff (Respondent in Stay) $500.00 costs within 7 days. 

Chaitanya Lakshman
Resident Magistrate
23rd July 2014