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Cavuilati v Verevakawalu [2001] FJHC 247; HBC0489R.2000 (9 November 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 489 OF 2000

Between:

ADI SALOTE CAKOBAU CAVUILATI
Plaintiff

And

SAMUELA VEREVAKAWALU
a.k.a. SAMUELA CAVUILATI

MILIKA TAGI VEREVAKAWALU
a.k.a. MILIKA TAGI CAVUILATI
Defendants

Mr. S. Valenitabua for the Plaintiff
Mr. Eroni Veretawatini for the Defendants

DECISION

This is the defendants’ application by way of Motion for stay of judgment made by this Court on 4 July 2001 ‘pending the hearing and determination of the defendants’ Appeal to Court of Appeal’ and that leave be granted to the defendants to file their Notice of Appeal as the order made was an interim one.

In support of the motion two affidavits have been filed by Mr. Veretawatini’s clerk on his behalf. In gist this deponent, who has no personal knowledge of what transpired in Court before me, questions my decision of 4 July. The learned counsel also filed written submission in this application.

In response to motion and the affidavit the learned counsel for the plaintiff filed a Summons supported by an affidavit seeking, inter alia, an order that the defendants application be dismissed. I also have written submission on behalf of the plaintiff.

This is what I ordered in my decision of 4 July 2001:

It is ordered that the sum of F$10,000.00 held by the solicitor in his Trust account [per receipt number 0339 for F$5000.00 dated 7.12.2000 and Receipt No. 0372 for F$5000.00 dated 7.11.2000] be paid into Court within 5 days. I also award costs against the solicitor in the sum of $200.00 to be paid personally by him. I hope counsel behave more responsibly in future and not argue merely for the sake of arguing as Court’s time is precious.

The order is as clear as crystal. It is not Mr. Veretawatini’s money which is ordered to be paid into Court. It is the trust money which he is holding in his Trust Account. As I understand from the affidavit filed it is not the defendants who are complaining about the said Order but Counsel.

I reject outright Mr. Veretawatini’s submissions on this application for leave and stay which is devoid of any merits. As I said in my said decision ‘the matter is too plain for argument’. There is nothing to argue about and yet Mr. Eroni Veretawatini (the solicitor) persisted in resisting the plaintiff’s application’. The learned counsel for the plaintiff is seeking the following order:

Counsel for the Defendant pays forthwith into this Honourable Court the sum of US$5,000.00 (Five Thousand Dollars - US Currency) or any like sum paid to the said Counsel by the Defendants and/or their Agents as per the terms of the Bonds executed by Ms. Lusiana Tokalau and Ms. Sereana Tuilovoni on the 6th day of November, 2000 and filed in this Honourable Court on the same date.

In this case there is an order of this Court and it ought to be obeyed. If Mr. Veretawatini does not wish to comply with it then he is in contempt of Court Order for which he should be proceeded against. There is nothing to stay here. His application is an abuse of the process of the Court.

There is no real prospect of success on appeal at all and in this regard and I refer to the following statement of Sir Maurice Casey in Cyrus Motors Co. Ltd & Prem Kumar v Lumby Pty Ltd (Civ. App. No. ABU0031 of 1998 FCA 1998):

"This Court exercises a fresh discretion in respect of which there are some well settled guidelines. Generally a stay of execution on a judgement may be granted if there is an arguable appeal in the sense that it has some realistic possibility of success, and if execution would render it nugatory". (emphasis ours).

There is nothing in the decision which gives rise to an appeal. What is there to appeal against which in any way affects the rights of the parties or prejudice any party if the money as ordered is deposited into Court.

For these reasons the motion is dismissed with costs to the plaintiff’s solicitors which I fix at $350.00 to be paid within 7 days.

It appears that Mr. Veretawatini has not paid the $200.00 costs previously ordered and if that is so he is ordered to pay that within 7 days as well.

D. Pathik
Judge

At Suva
9 November 2001