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Housing Authority v Bulu [2003] FJHC 249; HBC0028d.1999S (12 September 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 28 OF 1999

Between:

HOUSING AUTHORITY
Plaintiff

and

PENIONI BULU as duly appointed
Trustee of Talau Housing Scheme
Defendant

Mr. I. Tuberi for the Applicant/Defendant
Mr. V. P. Maharaj for the Respondent/Plaintiff

DECISION

By summons dated 7 July 2003 the defendant makes application for an Order that execution of the decision made by this Court ‘on 23 May 2003 be stayed until the determination of the appeal in the case of Penioni Bulu v Housing Authority, Civil Appeal No. ABU0030 of 2003’ (being Civil Action No. 178/97).

An affidavit in support was filed by the defendant followed by an affidavit in reply by the plaintiff and the defendant replied thereto by an affidavit sworn 12 August 2003. As ordered, both parties filed written submissions with the last filed on 13 August 2003. I have given these submissions due consideration.

Background Facts

On 23 May 2003 I gave judgment in favour of the plaintiff in the following terms:-

On the evidence before me I find that the defendant has defaulted in making the required instalments under the terms of the agreement. The plaintiff has proved its claim against the defendant on a balance of probabilities and the debt now stands at $77,307.51 inclusive of interest as at 31 January 2002.

There will therefore be judgment for the plaintiff in the said sum of $77,307.51 with costs which is to be taxed unless agreed.

The defendant filed Notice and Grounds of Appeal in the said C.A. No. 178/97 on 14 July 2003. The defendant says in his affidavit in support of this summons that if his appeal in action No. 30/03 is successful he would be in a position to pay off the said sum of $77,307.51. But, he says, that if execution is not stayed the ‘plaintiff would probably execute the said judgment and I stand to lose my standing to be able to pursue my said appeal if the plaintiff proceeded with bankruptcy proceedings against me.’ He said that the two actions, namely, Civil Action No. 178/97 and Civil Action No. 28/99 are related.

The plaintiff opposes the application on the following grounds (as stated in its affidavit in reply):

(a) I am advised and verily believe that the appellant has no chance of succeeding in his appeal against Justice Pathik’s Judgment which His Lordship handed down on 23rd May 2003.

(b) I am advised and verily believe that Penioni Bulu did not give evidence in his Defence at the trial before Justice Pathik and as such Housing Authority's claim for the amount of loan advanced to Penioni Bulu went unchallenged.

(c) That the debt owed by Penioni Bulu to Housing Authority is substantial and any delay would mean that the amount would further increase when accrued interests is added on the Judgment sum.

(d) The plaintiff further submits that the defendant would not be in a position to pay his debt of $77,307.51. It denies that the HBC00178 of 1997 is in any way related to this action (HBC0028 of 1999) as alleged by the defendant.

Consideration of the application

The application before me is an application for stay of execution pending the hearing and determination of the appeal in the said C.A. 178/97 which was a separate action altogether brought by Penioni Bulu (as the plaintiff) against the Housing Authority (as the defendant) for unlawful dismissal. The decision was given by Singh J on 19 May 2003 dismissing the defendant’s claim.

From the affidavit evidence before me, I cannot see the connection between the subject-matter of the said two actions between the parties. They are two separate and independent actions involving separate issues for Court’s determination. If there was a linkage justifying consolidation of these actions, I am sure that would have been done. Both actions proceeded independently and judgments were given.

In these circumstances I cannot see how I can stay execution of my judgment as prayed.

The principles governing stay of execution are fully set out in the Notes to Or.59 r.13/1 (The Supreme Court Practice 1979 p.909). It states, inter alia, that the Court does not “make a practice of depriving a successful litigant of the fruits of his litigation, and locking up funds to which prima facie he is entitled”, pending an appeal. (The Annot Lyle (1886) 11 P.D. at p.116, C.A.; (Monk v Bartram [1891] UKLawRpKQB 15; (1891) 1 Q.B. 346).

It also has to be considered that “when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal, if successful, is not nugatory”. Where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay. [Wilson v Church (No. 2) (1879), 12 Ch.D. at pp 458, 459, C.A.].

The grant or refusal of a stay is a discretionary matter for the Court [AG v Emberson (1889), 24 Q.B.D., pp 58, 59]. It will be granted where the special circumstances of the case so require. In exercising its discretion the Court will weigh considerations such as balance of convenience and the competing rights of the parties before it [Emberson (supra)].

It has been held that:

“A stay of execution of a judgment pending an appeal to the Full Court will not be made under O. LVIII, r. 17, of the Rules of the Supreme Court unless there are special circumstances justifying the stay; such special circumstances exist where there is a real risk that the appeal, if successful, would prove abortive if the applicant were not granted a stay. A judge, other than the trial judge, may grant such a stay. (Scarborough v Lew’s Junction Stores Pty Limited [1963] VicRp 20; [1963] V.R. 129)

No special circumstances exist in this case.

The defendant does owe a huge sum of money to the plaintiff under the judgment which I delivered. There is no indication as to how the defendant will pay this debt. In any case there is no appeal against this decision.

There is no indication whether there is an application for a stay of Singh J’s judgment. It was held in Linotype-Hell Finance Ltd v Baker (1992) 4 All E.R. 887 that.

“Where an unsuccessful defendant seeks a stay of execution pending an appeal to the Court of Appeal, it is a legitimate ground for granting the application that the defendant is able to satisfy the court that without a stay of execution he will be ruined and that he has an appeal which has some prospect of success”.

Conclusion

In all the circumstances of this case in exercising its discretion the Court does a balancing exercise. On one hand there is the plaintiff who is a successful plaintiff fully entitled to the fruits of its victory and on the other hand there is the unsuccessful defendant owing a very substantial sum of money with no prospect of that being paid to the plaintiff.

In the outcome, for these reasons in the exercise of the Court’s discretion the scale tips in favour of the plaintiff and its interest needs greater protection than that of the defendant as it would suffer greater prejudice if stay was granted.

Therefore the application for stay of execution is refused with costs in the sum of $250.00 to be paid within 21 days.

D. Pathik
Judge

At Suva
12 September 2003