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Evans v Wong [2012] FJHC 1362; Civil Action 5.2012 (9 October 2012)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 05 of 2012

Bernard Robert Evans and Vera Heritage Evans aka Vila Heritage
Evans
Appellants

And:

Leslie Gee Way Wong and Marissa Wong both of Suva, Company
Directors respectively.
Respondents

Appearances: Mr S. Fa for the appellants
Mr Shelvin Singh for the respondents
Date of hearing : 06th August, 2012

JUDGMENT

1. The appellants have filed two summons before me. By the first summons dated 30 May, 2012, leave to appeal out of time my order of 10 February,2012, has been sought. In the other summons dated 6th August, 2012, the respondents has sought a stay of execution of the same order that provided that costs be taxed by the Master.
   
2. I will recapitulate briefly the background of this litigation, before considering this application.
   

The appellants had filed ex parte notice of motion in this court seeking an order for the issuance of a warrant for the arrest of the respondents. In the affidavit in support of the motion, the 2nd applicant stated that judgment was entered against the respondents by Master Amaratunga of the High Court in the sum of AUD $ 250,340.00. The appellants had then, instituted bankruptcy proceedings against the respondents in the Magistrate's Court and a receiving order had been made. A stay of the proceedings was subsequently made.

The affidavit in support proceeded to state that the 2nd respondent had resigned from her employment on the ground that she will be migrating shortly with her husband, the 1st respondent and that the respondents have discreetly organised the sale of their property(the property) at Ratu Sukuna Road.

On 10 January,2012, Justice Mr Kotigalage upon hearing the ex parte notice of motion, made order that the Registrar inform the Immigration authorities, not to permit the respondents to leave the country until 20th January, 2012. The respondents were ordered to appear in court on that day. On 20th January, 2012, the order was extended to 10th February, 2012, since there was no appearance by the respondents .

The 1st appellant,thereafter filed affidavit in opposition, stating that he is not migrating and that the 2nd respondent had resigned from her employment, in order to spend time with her children. It was averred further that, their personal liberty has been restricted and that the appellants had failed to disclose that they have a caveat over that property.

On 10 February,2012, the matter was argued before me. I discharged the order made on 10 January,2012, on the ground that there is no material before court to substantiate the claim, that the respondents intended to migrate. The hearing on the ex parte notice of motion was argued on 12 April,2012, and judgment is on notice.

In their affidavit in support of the summons seeking leave to appeal out of time, it is stated that the 2nd appellant, on 23rd March, 2012, had conducted a search of the properties of the respondents and learnt that the caveat over the property, had been removed in November, 2008, and that the 2nd respondent had left the country.

As regards the caveat, Mr Shelvin Singh submitted that this was not factually correct. An application had been made by the respondents for removal of that caveat.

The proposed grounds of appeal of the appellant, are as follows:

The learned Judge had erred in fact and in law and was misled when he dismissed the Prohibition Order on the basis of assertions and representations made by the Respondents that they were not migrating overseas when in fact the Respondents had been planning to migrate overseas as illustrated in the 2nd Respondent fleeing overseas after His Lordship had set-aside the Prohibition Order.

The learned Judge had erred in fact and in law and was misled when he dismissed the Prohibition Order on the basis of assertions and representations made by the Respondents that the Appellants had failed to inform the Court that they held caveats over 2 of the Respondents' properties since 2008 when in fact the Respondents had removed these caveats in late 2008.

3. The determination
   

In terms of section 12 (2) (f) of the Court of Appeal Act(cap 12),leave is required from any interlocutory order or interlocutory judgment made or given by a judge of the High Court, except in five types of cases, none of which applies here.

The following often quoted passage from the judgment of Murphy J Niemann v Electronic Industries Ltd [1978] VicRp 44; (1978) VR 431, at page 441 contains a useful exposition of the principles to be considered in an application for grant of leave:

" (1) whether the issue raised is one of general importance or whether it simply depends upon the facts of the particular case;

(2) whether there are involved in the case difficult questions of law, upon which different views have been expressed from time to time or as to which he has been" sorely troubled";

(3) whether the order made has the effect of altering substantive rights of the parties or either of them; and

(4) that as a general rule there is a strong presumption against granting leave to appeal from interlocutory orders or judgments which do not either directly or by their practical effect finally determine any substantive rights of eitherparty."(emphasis added)

It is trite law to say that only in exceptional circumstances will leave be granted to appeal an interlocutory order. Leave will not normally be granted, unless some injustice would be caused.

In Niemann v Electronic Industries Ltd, (supra)Murphy J stated further:

"Even if the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to effect a substantial injustice by its operation."

Mr Shelvin Singh has quite correctly submitted that the summons seeking leave to appeal has not prayed for an order for leave to appeal out of time, in the first instance. The caption in the summons however, makes it clear that the appellants eek this relief. Mr Shelvin Singh has also pointed out that no order has been made as to the party that has to bear costs. Accordingly, a stay does not arise for consideration in that regard and that summons is dismissed.

Mr Fa contends that my order would be cause substantial injustice to the appellants and affect their substantive rights. In the circumstances, I grant the application for leave to appeal out of time. I make no order as to costs.

A.L.B.Brito-Mutunayagam
Judge
9th October, 2012