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Buksh v Pacific Timber Developments Ltd [1997] FJHC 256; Hbc0409j.94s (27 November 1997)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. HBC0409 OF 1994

BETWEEN:

KARIM BUKSH
(f/n Madar Buksh) of
257 Princess Road, Tamavua
Plaintiff

AND

PACIFIC TIMBER DEVELOPMENTS LIMITED
Defendant

S. Inoke for the Plaintiff
I. Fa for the Defendant

Date of Hearing: 27th November 1997
Date of Judgment: 27th November 1997

JUDGMENT

I have before me a Summons seeking leave to issue a Writ of Possession against the Defendant in respect of the land comprised in C.T. 26549 known as Deuba Block 1, being Lot 1 on DP 6510 comprising 0.8091 square metres and improvements thereon.

The application is opposed. Counsel for the Plaintiff submits that, as found by Dillon J.A. in his decision handed down this morning, the Defendant has failed to comply with Rule 17 of the Court of Appeal Rules for fixing Security for Costs as required.

His Lordship refused the Defendant leave to file a Summons for Security for Costs out of time and refused the Defendant a Stay of Execution pending appeal, thus confirming my ruling of 15th October 1997. In what can only be described as a disgraceful display of blustering and shouting by counsel for the Defendant Mr. Fa stated that "I want to be heard by the full bench of the Court of Appeal to dispute Dillon J.A.'s judgment on the stay and Rule 17."

Counsel for the Plaintiff submitted that in view of the Defendant's failure to comply with Rule 17(1) of the Court of Appeal Rules I should refer this matter to the Court of Appeal to be listed for its next or any subsequent sitting for a formal order of dismissal. Rule 17(2) is in the following terms:

"In the event of non-compliance with paragraph (1) or in the event of any security required to be given not being given, or being only partly given, within the time directed, or within such extended time as a judge of the Supreme Court may allow, all proceedings in the appeal shall be stayed, unless the Court of Appeal shall otherwise order, and the appeal shall be listed for the next, or any subsequent, sitting of the Court of Appeal for a formal order of dismissal."

I accept this submission. In my judgment the Defendant has forfeited its rights to appeal because of its non-compliance with Rule 17(1) and I therefore order that a Writ of Possession be issued in terms of the Plaintiff's Summons of 23rd October 1997.

The Defendant has to pay the Plaintiff's costs of this application to be taxed if not agreed.

In view of the behaviour of counsel for the Defendant which I have mentioned above I put him on notice that any repetition of such behaviour before me will result either in my depriving him of his right of audience before me or citing him for contempt of Court or both should I consider such action necessary.

JOHN E. BYRNE
J U D G E

Legislation referred to in judgment:

Court of Appeal Act Section 20.
Court of Appeal Rule 17.

No other authorities were cited in argument.

HBC0409J.94S