SC1084

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA No. 149 of 2010

BETWEEN:

PIJA GRANNIES LIMITED
First Appellant

AND:

REX W. EMBAHE
Second Appellant

AND:

RURAL DEVELOPMENT BANK LIMITED
Respondent

Waigani:	Sawong, J
2010:	 15th November & 1st December

SUPREME COURT – practice and procedure – application for stay of judgment of National Court - grant or refusal of stay is discretionary and must be exercised on proper principles and on proper grounds - leave is not required in this appeal - there has not been any undue delay in making this application - issues raised in the grounds of appeal do raise arguable case – stay order granted – ss.5 & 19 Supreme Court Act

Held:

1.	 Leave is not required in this appeal as the appeal is based on questions of mixed law and fact (s. 14(1)(b) of the Supreme Court Act)

2.	There has not been any undue delay in the making of this application by the Appellant.

3.	The balance of convenience favours both parties

4.	The grounds of appeal demonstrate an arguable case. 

5.	Order to stay judgment is granted. 

Cases cited in the judgment:

Gary McHardy v. Prosec Security & Communications Limited Trading as Protect Security (2000) PNGLR 279.

Counsels:

Ms. G. Salika, for the Appellants
Mr. T. Cooper, for the Respondent

RULING

1st December, 2010

6.	SAWONG, J:	The Appellants apply for a stay of the judgment of the National Court sitting at Waigani, made on 4th October 2010. The application is made pursuant to ss. 5 and 19 of the Supreme Court Act, Ch. 37. The Respondent opposes the application. 

7.	The application is supported by the Affidavit of Rex Embahe sworn and filed on 26th October 2010. Counsel for the Appellant has filed written submissions. She has also made brief oral submissions. Counsel for the respondent, Mr. Cooper has also made brief oral submission. I have considered those submissions and the Affidavit material. 

8.	The principles on grant or refusal of stay are set out in Gary McHardy v. Prosec Security & Communications Limited Trading as Protect Security (2000) PNGLR 279 (McHardy case). The grant or refusal of stay is discretionary and must be exercised on proper principles and on proper grounds. The Court must start from the basic premise that the judgment creditor is entitled to enjoy the benefit of the judgment. There are ten (10) other considerations which are set out in that case which a Court should consider in determining an application for stay. 

9.	Counsel representing the Appellants made submissions on the application of each of the considerations in the McHardy's case. I have read and considered those submissions by both counsel.

10.	There are five (5) grounds of appeal. Grounds (1) and (2) of the grounds of appeal raise issues of mixed law and fact.

11.	Grounds (3), (4), and (5) of the grounds of appeal raise some alleged errors of law.

12.	Applying the considerations in McHardy's case to the present case, I am satisfied that leave is not required in this appeal as the appeal is based on questions of mixed law and fact, pursuant to s. 14(1)(b) of the Supreme Court Act.

13.	I am also of the view that there has not been any undue delay in the making of this application by the Appellant.

14.	As to the issue of prejudice, I am of the view that the Appellants would be prejudiced in that whilst the stay is on and the appeal is on foot, the loan amount with accumulated interest would be accruing on a daily basis and thus the loan amount would or could easily exceed the original loan. The Respondent would also be financially prejudiced, in that, in the event the appeal is unsuccessful, the potential financial loss would be significant.

15.	Furthermore and following on from that, is that the Appellant has not offered any evidence of their financial ability. There is no evidence from the Appellant to meet their loan commitments either now or in the future. 

16.	Furthermore, the Appellant has not given any undertaking as to damages. The balance of convenience, in my view favours both parties, in that, if a stay order is granted, the Appellant's financial liability will certainly increase. Thus, in my view the balance of convenience favors the refusal of a stay order. It goes without saying that if the Appellant is unsuccessful in its appeal, the potential financial loss to the Respondent and the Appellants would be significant. 

17.	On the other hand, the grounds pleaded in the Notice of Appeal which are based on questions of mixed fact and law raise on the face of it, arguable case. The issues raised in the grounds of appeal do raise arguable case. The issues raised in the grounds of appeal are not speculative. In saying that, I am not for a moment considering the merits of the arguments. On the contrary, I am of view that, a closer consideration of the grounds of appeal do indeed demonstrate an arguable case. 

18.	In the circumstances, I would grant a stay. I would order that costs be in the cause.

________________________________________________
Young & Williams Lawyers: Lawyers for the Appellants
Rageau Manua & Kikira Lawyers: Lawyers for the Respondent