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DN v CW [2015] FJMC 153; File No 10-SUV-0385 (8 September 2015)

IN THE FAMILY DIVISION OF THE MAGISTRATE’S COURT AT SUVA

FILE No: 10/SUV/0385

BETWEEN:

D N

Applicant

AND:

C W

Respondent

______________________________________________________________________
APPEARANCES/REPRESENTATIONS

Mr Niubalavu for the Applicant
Not Present and Unrepresented for the Respondent

Introduction

1. The Applicant filed a Form 9 Application on 4^th November, 2014 seeking an order that the Applicant be granted seeking that interim order delivered before the learned Resident Magistrate Mr. Tomasi Bainivalu dated 16^th November 2010 is stayed permanently.
   
2. As per record, the Respondent was duly served. (Substitute service). The Respondent absent and unrepresented. Subsequently the matter proceeded formal proof on 1st July 2015 and Counsel for the Applicant filed affidavit evidence in chief with the leave of the Court. The Applicant also relied on his Form 9 Applications for Final Orders.

The Facts

3. The Applicant stated that the applicant and the Respondent were legally married and then divorced. After the divorce of the parties, the Respondent “moved abroad and settled with someone else.” The Respondent has never contacted the Applicant after the divorce and is now living with her new partner.
   
4. The Respondent had filed Form 12 and 23 applications before the Court seeking that the property situated at Verata, being Lot 00 Sec 111, DP 126 containing 1 rod in Freehold title number 227710 be restrained from selling, transferring, gifting or being encumbered or disposed of by the applicant.
   
5. The property in question initially belonged to the Applicants late father “RM” who passed away leaving a Will in which the Applicants mother S W and the Applicant are the beneficiaries. The property in question was not bought by the Applicant in the course of his marriage to the Respondent rather was bequeathed to him through his late father’s estate.
   
6. The Respondent restrained the Applicant from disposing off the property through an interim Order was made against the Applicant without his knowledge and he only came to find out about the order when the same property was subjected to proceedings in the High Court.
   
7. The Applicant mother “SW” filed an action against Applicant to give her share of the property in question to her through a civil case number 14 of 2011. Through the same action the Court had delivered a Judgment on the 1^st day of August 2013.
   
8. The Judgment was delivered it was brought to the Applicants solicitors and the High Court’s attention by the Plaintiffs’ counsel that there was an interim order imposed on the property or dispose of the property in question. The Applicant now seeks to permanently stay the interim order.

The Determination

9. The applicant submits that the interim order made by the family Court in which the applicant was restrained disposing off the property in question should be permanently stayed. The Applicant relies on his Form 9 filed in Court and also on the fact that the Applications are followed with an Affidavit of service. The respondent has shown no interest to appear in court to oppose the orders sought by the Applicant therefore the application at hand remains undefended.
   
10. That through the same action the Hugh Court had delivered a Judgment on the 1^st day of August 2013 inter alia as follows:
    
    1. That within 28 days from the Judgment, the Plaintiff appoints a valuer to carryout valuation of the property. The valuer to be acceptable to the Defendants solicitors
    2. The cost of the valuation to be shared between the parties.
    3. The opportunity should be given to the defendant to purchase half a share of the Plaintiff within 90 days from the date of valuation
    4. In the event of Defendant not being able to purchase half the share of the Plaintiff, the Plaintiffs solicitors shall advertise the property for the sale by written tender in an at least two issues of a newspaper circulating in Fiji.
    5. Tender shall be opened in the presence of the Defendants solicitors.
    6. Sale shall be to the highest tenderer who is to pay all costs and disbursements a transfer usually paid by the purchaser.
    7. On a tender being accepted transfer shall forthwith be prepared by the defendant’s solicitors who shall obtain his clients execution thereto and shall forward some of the Plaintiffs solicitors who shall hold it until purchaser of the property is in a position to settle.
    8. Forthwith upon settlement the Defendants Solicitors shall pay into Court the Settlements moneys and furnish an account of disbursement and costs incurred by the Plaintiff in the sale of the property.
    9. Within one month after payment into Court of the said moneys, each party to furnish to the other and file in Court his or her claim in respect of the sale moneys supported by documentary evidence of payments alleged to have been made or expenses incurred in the purchase of the property.”
       
11. The applicant further submitted that if the Court believes that the Respondent might have an interest in the property then the Respondent may file any application to show her interest in the property.
    
12. The Court also noted after perusing the court record that on 10 December 2010 that the respondent lady “informed the Court that she does not wish to have the property (Form 9) substantive matter proceed. She only wish to have the interim order made on the 16 November 210 continue.”
    
13. The Court also notes that the respondent has not made any substantive application to claim her interest in the property and after the interim order to restrain the disposing off the property was made the Respondent has made no attempts to file any applications for her share (if any) to be given to her.
    
14. Furthermore, the respondent has failed and neglected to move the court for any property distribution in the property in question as such the respondent has shown no interest in the property and therefore has not made any applications for her share of the property under matrimonial property.
    
15. The principles' governing a Stay has been stated ihus lsburysbury's Laws of England (4th Ed. Vol. 37 para 696):

The Court considering a St60;should take into accouaccount the following questions. They were the principles set out by the Court of Appeal and ved suently and appliedplied frequently in this Court. They were summarized in Natural Wate Waters of Viti Ltd v Crystal Clear Mineraers ( Ltd Civil Appeal ABU0011.8th March 2005. Th5. They are:

"(ai>"(a) Whe) Whether, if no stay is granted, the applicantgh right of appeal will beered nugatory (this(this is not determinative). See Philip Morris (NZ) Ltd v Liggett &Myerscco Co (NZ) Ltd 1977 2 NZLR 41 (CA).

(b) Whether the successful parl party wity will be injuriously affected by the Stay.(c) The bona bona fides of the Applicants as to the prosecution of the appeal.