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Durst v Petroleum Products Supplies Ltd [2007] WSSC 84 (1 November 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

CHRISTIAN DURST and BARBARA DURST
of Ululoloa, Restaurateurs
Plaintiffs

AND:

PETROLEUM PRODUCTS SUPPLIES LIMITED
a duly incorporated company carrying on business at Sogi
Defendant

Counsel: Mrs Drake for plaintiffs
Mr S Leung Wai for defendant

Hearing: 29 October 2007
Judgment: 01 November 2007

ORDER BY JUSTICE VAAI

Introduction

(1) By judgment dated the 27th July 2007 the defendant was ordered to pay damages and costs totalling $166,238.80 to the plaintiffs following the hearing of a claim in negligence whereby the plaintiffs, of German nationality, who operated a restaurant in Apia, sought damages against the defendants for loss of earnings as a result of conditions they suffered when their stationary vehicle was struck from behind by the defendants petroleum tanker.

(2) The defendant has appealed to the Court of Appeal against that judgment. As the Court of Appeal sits once annually and usually towards the latter part of the year, the defendant seeks a stay of execution of the judgment pending the determination of the appeal. The grounds upon which the stay is based are:

1. The amount is substantial and the appellants are unlikely to reimburse the defendant in the event the appeal is successful.
2. The plaintiffs still operate the restaurant on the same hours and days as previously and it is unlikely they will suffer any hardship while awaiting the outcome of the appeal.

100. The plaintiffs are not citizens of Samoa and there is the risk they will leave Samoa permanently for Germany.

4. The plaintiffs do not accept the judgment sum awarded and have filed a cross appeal. They are therefore not satisfied with the fruits of their judgment.
5. In the event the appeal is not successful then the defendant will be able to abide with the decision.
   

(3) The plaintiffs oppose the stay. They say the appeal is directed at the quantum of damages only so that the plaintiffs are still entitled to some compensation, the amount of which may be increased or reduced by the Court of Appeal. They are now entitled to the fruits of their judgment rather than sit out the outcome of the appeal which will be determined towards the end of next year. They were obliged to file a cross appeal in response to the defendant’s notice of appeal. On the balance of convenience the plaintiffs say the stay of execution should be refused.

The Law

(4) Section 58 Judicature Ordinance 1961 provides that an appeal to the Court of Appeal shall not operate as a stay of execution unless the Supreme Court otherwise orders.

(5) The principles, which the court is to apply in determining whether to grant a stay of execution, are not in dispute. Both counsels rely on the statement of the New Zealand Court of Appeal in Duncan v Osborne Buildings Ltd (1992) 6PR NZ 85, at 87:

"In applications of this kind, it is necessary carefully to weigh all the factors in the balance between the right of a successful litigant to have the fruits of a judgment and the need to pressure the position in case the appeal is successful. Often it is possible to secure an intermediate position by conditions or undertakings and each case must be determined on its own circumstances.

(6) In Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PR NZ 48 Hammond J in the New Zealand High Court suggested that several factors should be considered on such an application.

• (a) whether, if a stay is not granted, the right of appeal will be rendered nugatory;
• (b) whether the successful party will be injuriously affected by the stay;
• (c) the bona fides of the applicant as to the prosecution of the appeal.
• (d) the effect on third parties
• (e) the public interest in the proceeding
• (f) the overall balance of convenience.
  

Those suggested considerations were endorsed by the New Zealand Court of Appeal in: NZ Insulators Ltd v ABB Ltd unreported; 4th December 2006; CA215/06

(7) Mr Leung Wai for the defendants submitted that if the Court of Appeal upholds the defence of illegality the plaintiffs will not be entitled to damages for loss of earnings totalling $140,078. But the success of the defence of illegality rests on a finding of fact whether the plaintiffs at the time of the accident were living in Samoa as illegal immigrants. At the relevant time the plaintiffs’ passports were with the Chief Executive Officer of the office of the Immigration Division for processing of extension of visas and permanent residence status. After the hearing of the evidence, and before the hearing of counsels’ submissions, counsel for the plaintiffs advised the court that the plaintiffs’ application for extension of visitors permit has been granted. After all the plaintiffs have been operating the restaurant since 1995 and have had their visitors and work permits renewed since. To insist on the defence of illegality in the light of the evidence given is in my view an indication of the lack of bona fide by the defendant. The plaintiffs were not illegal immigrants.

(8) It is of great significance that other than the defence of illegality, the rest of the appeal challenges the quantum of damages as excessive. On the other hand the plaintiffs in their cross appeal say the damages awarded are insufficient. Whether excessive or not the plaintiffs are entitled to an award of damages.

(9) In considering the overall balance the over riding factor in my view is the ability of the plaintiffs to reimburse the defendant in the event the appeal succeeds and the quantum of damages is reduced. As visitors they have no fixed assets. As restaurant operators their gross annual income was about $20,000.00. They can leave the country any time at their will. But they are at the same entitled to the fruits of their judgment as they have expenses and medications for the conditions they suffered to pay. A stay will injuriously affect the plaintiffs. A refusal of stay will also injuriously affect the defendant.

(10) In balancing the competing right of the plaintiffs to the fruit of the judgment in their favour and the need of the defendant to be reimbursed if the appeal succeeds, I have come to the conclusion that the overall balance of convenience requires a partial stay of execution.

Order

(1) The sum of $66,238.80 shall be paid to the plaintiffs within 14 days.

(2) The balance totalling $100,000 shall be paid within 14 days to the Law Trust Account and the Registrar shall immediately place the said sum on an interest bearing deposit with a bank of his choice.

(3) I made no order as to costs.

JUSTICE VAAI