SC1688
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 38 of 2018

BETWEEN:
WILLIE PETER
Appellant

AND
LUKE PANGO
Respondent

Waigani:  Dingake J
2018:  22 February, 5 July

PRACTICE AND PROCEDURE – Application for stay of the National Court Order granting declaratory relief in favour of the respondent – principles of grant of stay considered – applicant failed to meet the requisite test to obtain stay – application dismissed.

Cased Cited:

Gary McHardy v Prosec Security & Communication Ltd (2000) PNGLR 279.

Counsels:

Mr. T Yai, for the Appellant
Ms. Wurr, for the Respondent

5th July, 2018

1.    DINGAKE J:  The appellant applies for stay of an order of the National Court of the 22nd February 2018, and entered on the 6th April 2018, in which the Court granted declaratory relief in favour of the respondent, including on the main, a declaration that the respondent, the plaintiff in the lower court, is the owner of the 4 bedroom house, the subject of the proceedings in the lower court.

2.   The appellant/applicant relies on the affidavit of Willie Peter sworn on the 24 May and filed on the 25 May 2018.

3.  I have considered the supporting affidavit of the appellant and the submission of the parties.

4.    The appellant is aggrieved by the decision of the lower court declaring, that the respondent, the plaintiff, in the lower court, is the owner of a 4 bedroom house and other incidental orders thereto.  He has filed a notice of appeal in which he complains that the lower court erred in law in giving a narrower and incorrect definition of the word “chattels” thereby arriving at a conclusion that is wrong in law.

5.   The appellant also complains, in his notice of appeal, that the lower court ignored or failed to take into account a key affidavit.

6.   The complete grounds of appeal are captured in his notice of appeal.

7.   The principles on the granting or refusal of stay are set out in the leading case of Gary McHardy v Prosec Security & Communication Ltd [2000] PNGLR 279 (30 June 2000)) (McHardy case).

8.    The above authority, and many others delivered after it, enjoin the court to start from the premise that the judgment creditor is entitled to enjoy the benefit of the judgment (Kopalye v Mutual Ltd [2011] PGSC 16; SC 1113 (15 July 2011)).

9.   The case of McHardy outlines a number of principles the Court must take into account in considering a stay application.

10.  These principles are as follows:

i)	Whether leave to appeal is required and whether it has been obtained.
ii)	Whether there has been any delay in making the application.
iii)	Possible hardship, inconvenience or prejudice to either party.
iv)	The nature of the judgment to be stayed.
v)	The financial ability of the Applicant.
vi)	Preliminary assessment about whether the applicant has an arguable case on the proposed Appeal.
vii)	Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure.
viii)	The overall interest of justice.
ix)	Balance of convenience.
x)	Whether damages would be sufficient remedy.

11.   It is trite law that in considering the above factors/principles the Court does not simply tick the boxes, rather the Court is required to consider the totality of relevant factors in order to dispense justice in accordance with the circumstance of each case (Devis v Kaiwor (2011) PGSC 61; SC 1264 (12 August 2011)).

12.   At the end of the day the grant or refusal of stay is discretionary – and such discretion is to be exercised on sound principles and good reasons.

13.    I have taken into account all the principles enunciated in the McHardy case outlined above.

14.    In this case, leave to appeal is not required as the order of the Court, appealed against is final in nature.  The appellant has not delayed in making this application.

15.    I have considered all the grounds in the Notice of Appeal, and I have considered the record of the proceedings in the Court below in the context of the grounds of appeal and did not find any apparent error of law and or of procedure.

16.  On a preliminary assessment about whether the applicant has an arguable case on the proposed appeal, I have found none.  It cannot be credibly contended that the words “chattel” includes immovable property such as a house, as the applicant contends.  I find that the lower court considered all the relevant evidence placed before it in granting the Orders, the subject of this appeal.

17.   The appellant has not demonstrated any hardship, inconvenience or prejudice it stands to suffer if the order of the lower court is not stayed.
18.   The appellant did not address the issue of financial ability or balance of convenience in his affidavit and on the evidence I cannot say these two factors favour the appellant.

19.   I am of the considered view that this is a case in which damages would be sufficient remedy in the event the appellant ultimately succeeds to establish his entitlement to the house.

20.   Having regard to all the circumstances of this case, including that two factors favour the appellant, based on the totality of the factors enunciated in the McHardy case, in the exercise of my discretion, and the overall interests of justice, I refuse to grant the stay.

21.   The appellant shall pay the respondent costs of the application.
______________________________________________________________
Bristle Lawyers:  Lawyer for the Appellant	 
Public Solicitor:  Lawyer for the Respondent