| Fiji Islands - NBF Asset Management Bank v Charan-Katonivere Holdings Ltd - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO: HBC 585 OF 1999
BETWEEN:
NBF ASSET MANAGEMENT BANK
Appellant
AND:
CHARAN-KATONIVERE HOLDINGS LIMITED
Respondent
Mr W. Clarke for Appellant
Mr H. Nagin for Respondent
Hearing: 16th October 2000
Judgment: 18th October 2000
JUDGMENT
The Appellants have filed an appeal against my decision of 4th May 2000 that judgment in the sum of $140,909.09 be entered for the
Respondent, being the sum paid to the Appellant by the Respondent as the amount payable as the VAT component of the purchase price
on properties sold to the Respondent.
The Appellant now seeks a stay of execution of the judgment pending appeal to the Fiji Court of Appeal.
The grounds advanced for stay are that there are good prospects of success and that the Respondent may not be in a position to pay
the Appellant in the event that the appeal is successful.
The Respondent opposes the application saying that there is no merit in the appeal, that the Respondent is in a good financial position
and will be able to pay the Appellant if it succeeds on appeal, and that the Appellant is in fact in a precarious financial position
and “is now on the verge of closing down.”
The Action
On 9th December 1999, the Respondent filed originating summons in the High Court with supporting affidavit seeking an order for the
refund by the Appellant to the Respondent the sum of $140,909.09 plus interest and costs. The Respondent had tendered for two properties
in a sum of money which the Respondent said included VAT. After sale had been perfected, and the money paid, the Respondent discovered
that the sale was tax-exempt. The Respondent claimed a refund. The Appellant said that “VIP” meant VAT if payable, and that if VAT
was not payable the purchase price excluded such a component.
An order was granted for the Respondent, and perfected on 16th May 2000.
The Appellant’s grounds of appeal are set out at Annexure C of the affidavit of Robert Escudier sworn on 20th September 2000, in support
of this application.
Stay
As a preliminary issue, counsel for the Appellant submitted that Rule 25 of the Court of Appeal Rules Cap 12, which provided
that: “Except so far as the court below or the Court of Appeal may otherwise direct - (a) an appeal shall not operate as a stay of
execution of proceedings under the decision of the court below;” had now been repealed by Rule 10 of the Court of Appeal (Amendment)
Rules 1999. He submitted that this meant that a stay followed automatically when an appeal was filed and that it was the Respondent
who now had to apply for execution of judgment pending appeal.
Counsel for the Respondent said that this interpretation of the Rules flew in the face of the common law principle that all litigants
were entitled to the fruits of their success unless there were exceptional circumstances.
A single Judge of Appeal may under section 20(f) of the Court of Appeal Act Cap 12; “stay execution or make any interim order to prevent prejudice to the claims of any party pending appeal” in the same way
as the Court of Appeal. Of course this application is made to the court of first instance, and not to a Judge of Appeal, so the reference
in the Application to section 20(f) which is relevant to single Judges of Appeal, is not appropriate.
Although Rule 25 has been repealed Rule 34 appears to be an identical provision (as amended in 1985) and it provides:
“(1) Except so far as the court below or the Court of Appeal may otherwise direct-
(a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below;
(b) no intermediate act or proceeding shall be invalidated by an appeal.
(2) On appeal from the Supreme Court, interest for such time as execution has been delayed by the appeal shall be allowed unless the Court
of Appeal otherwise orders.”
The statutory provision regarding stay pending appeal therefore remains unchanged.
As a general principle, a successful party to litigation is deprived of the results of judgment in the most exceptional circumstances.
These circumstances may be that an appeal would be rendered nugatory if the Appellant had to “deliver” the results of the judgment
before the appeal is heard. Another example would be the ruin of an Appellant if the judgment is not stayed. The grant or refusal
of stay pending appeal is a discretionary matter, but stay is only granted where the applicant has shown, at least, compelling grounds
for stay.
The affidavits sworn in respect of this Application show me that each party believes that the other will be unable to pay on the outcome
of the appeal. I note that the Applicant has shown that the Respondent has some properties which are heavily encumbered, and that
the Respondent claims that the Applicant is closing down operations as the debt-collecting branch of the Bank.
The Respondent should not be deprived of the judgment sum lightly. This appeal will certainly not be heard this year and may not be
heard until February next year. Nor do I find the Appellant’s submission that the State would take over its debts in the event that
the Bank is unable to, compelling. The Respondent should not have to pursue the fruit of its judgments
to the State if the appeal is unsuccessful, and the Bank is unable to pay.
However, if the Applicant succeeds, and the Respondent does not pay, the Applicant will need to spend time and resources pursuing
debt recovery. This would render the appeal nugatory.
In all the circumstances, in the interests of justice, stay of execution of judgment pending appeal is granted on the condition that
the Applicant must pay into court the sum of $140,909.09 within 14 days.
Costs are in the cause.
Nazhat Shameem
JUDGE
At Suva
18th October 2000
Hbc0585x.99s
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