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Magistrates Court of Fiji |
MAGISTRATES’ COURT
NAUSORI
CIVIL JURISDICTION
Civil Action No. 88 of 2015
SCT Claim # 194 of 2015
BETWEEN :
Mahendra Prasad of Buiduna, Nausori, Fiji.
[Respondent in Motion]
Claimant – SCT Matter
AND :
Anal Rajan Chetty t/a Aanvis Restaurant of Nadi, Fiji.
[Applicant in Motion]
Respondent – SCT Matter
COUNSELS : Ms. Anjaleen Lata -(West Law) for the Applicant in Motion
Mr. Kunal Singh for the Respondent in Motion
RULING
(Application for Stay Pending Determination Leave to appeal out of time and leave be granted to file a notice of appeal and grounds out of time)
Introduction
On 10th February 2016, the Applicant filed a notice of motion with an affidavit of the Applicant seeking following Orders:
"i). that the execution of the Order dated 25th of May 2015 be stayed pending the determination of the appeal out time filed herewith.
ii). That leave be granted to file a Notice of appeal and grounds of appeal out of time, and or
iii). Any other orders this honourable Court deems just and proper.”
On 9th May 2015 the Claimant/Respondent in Motion filed an affidavit in opposition The parties agreed to have hearing by way of written submissions.
History of the Matter in The Small Claims Tribunal
7th May 2015 Claim filed in SCT.
Affidavit of service was filed with the SCT Registry of service of the Claim on the Respondent. The Respondent acknowledged that it was served on him on 14th May 2015. The matter was set for hearing on 25th May 2015.
On 25th May 2015 the matter was called before the Referee the Claimant was present and the Respondent was absent. The Referee ruled in favour of the Claimant being satisfied on the documents submitted that the claim was in order and properly served on the Respondent.
The Respondent applied for a rehearing on 8th June 2015. This was approved by the Referee. On 29th July 2015, Mr. Waisea Duwai, the ACO served the Claimant a notice of hearing. No notice of hearing was served on the Respondent. However a note is contained in the file by Mr Duwai that the Respondent was called and notified of the re-hearing. No affidavit of service on the Respondent is in the file.
On 17th August 2015 the Referee restored the Orders of 25th May 2015 after it noted that the Respondent having applied for re-hearing failed to appear.
The Law on Stay
In Estate Mane Management Services Ltd .v. Pagenstecher [2012] FJHC 1175, the Coue Court stated that "the principles governing the grant or refusal of a stay application ipendppeal&peal are well settled. Theciplesiples' governing a stays been stated thus ihus in Halsbury's Laws of England (4th Ed. Vol. 37 para 696):
"Two princ havee bal against eact each other as to whether a stayy of execution ng the appeaappeal s160;should be gra first thst that a successful litigant should not be deprived of the fruits of this litigation, and secondly, that an appellant should e dep of tuits of a successful&#ful appeal.”Natural Waters of Viti Ltd v Crystal ClearClear Mine Mineral Waters (Fiji) Ltd Civil Appeal A1.04S Math March /b>. are. are:
"("(a) Wha) Whether, if no stay is granted, the apnt'carigh right of appeal will ndnugatthis is not deot determinative). See Philip Morris (NZs (NZ) Ltd) Ltd v Liggett & Myers Tobacco Co (NZ) Ltd 1977 2 NZLR 41 (CA).(ethersuccessful party arty will be injuriously affected by the&#the s160;stay.
(c) The) The bona fides of the Applicants as to the prosecution of the appeal.
>(d) The efhe effect on third parties.(e) The novelty and importance of ques involved.
(f(f) The public interest in the proceedings.
(g) The overall balance of convenience and the status quo."".
Analysis
This Court has noted the principles set out by the Court of Appeal&#nd approved subsequbsequently and applied frequently by the Court’s
and these have been summarized in Natural Waters of Ltd v Crystal Clear Mineral Waters (Fiji) Ltd Civil Appeal𧄋.04S 18th Marh Marc March 2005.
In relating the principles of stay and even before moving to it this court has noted an issue of service of the re-hearing. Having perused th File this Court finds that that the Respondent was not properly served a notice to attend hearing. The ACO has noted that he called to notify the Respondent. However no affidavit of service was filed for any form of service on the Respondent. The Respondent did not appear for the hearing and his position is that he was never notified of any dates for the re-hearing. The benefit of doubt goes to the Respondent as the file does not contain any affidavit of service that the Respondent was served the re-hearing notice.
On an analysis of the materials before it the Court finds that the overall balance of convenience and the status quo would favour granting of stay.
For the foregoing reasons the Court orders as follows:
(a) Stay granted.
(b) SCT Orders set aside and parties are to immediately (which is after this case) to see the ACO of the Small Claims Tribunal and take a date for the hearing of the matter.
(c) Matter to be re-heard with 21 days.
(d) No separate notifications or service of the claim will be made on any party when the dates are given by the ACO of the SCT. Therefore there would be no need now to file an affidavit of service.
(e) No order as to costs.
Chaitanya Lakshman
Resident Magistrate
26th September 2016
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URL: http://www.paclii.org/fj/cases/FJMC/2016/197.html