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Magistrates Court of Fiji |
Magistrate’ Court
Civil Action # 108 of 2012
Sitting At Nausori
Between: Muniamma Osborne [Plaintiff/ Respondent in Stay]
And: Nishil Kumar
[Defendant/ Applicant in Stay]
Appearances/Representations:
For Plaintiff: MA Khan
For Defendant: Mr Sunil Kumar
___________________________________________________________
Ruling – Stay Application
Introduction
The Applicant in this matter has filed an application for stay pending the determination of the Defendants appeal. The motion was filed with an affidavit of the Defendant.
The Parties agreed to have the matter heard by way of written submissions.
The Law on Stay
In Estate Management Services Ltd .v. Pagenstecher [2012] FJHC 1175, the Court stated that "the prie principles governing the grant or refusal of a stay applicatio0;pending appeal&peal are well settlee principlesiples' governing a s160;has been stated thus ihus in Halsbury's Laws of England (4th Ed. Vol. 37 para 696):
"Two principles have to be balanced against eaher awhether a st60;stay of exec pend16gg the #160;appealouldhbe grantgranted: first that a successful litigant should not be deprived of the fruits of this litigation, and secondly, that an appellant should not be deprived of the fruits of a succes#160;l.”
>T
The Court considering a stay ld take into accouaccount the following questions. The principles set out by the Court of Appeal;and approved subsequbsequently and applied frequently by the Courts. They were summarized >Natural Waters of Viti Ltdi Ltd v Crystal Clear Mineral Waters (Fiji) Ltd Civil Appeal ABU001118th March 20055. They are:
"(a) Whether, if no sta0; is granted, the the applicant's right of appeal will bdered nry (ts not deot determinative). See Philip Morris (NZ) Ltd Ltd v Ligv Liggett & Myers Tobacco Co (NZ) Ltd 1977 2 NZLR 41 (CA).
(bther uccesparty wrty will be injuriously affected by thehe st60;stay.
(c) The) The bona fides of the Applicants as to the prosecution of the appeal.
<(d) The efhe effect on third parties.(e) The novelty and importance of questinvolved.
(f)i>(f) The public interest in the proceedings.
(g) The overall balance of convenience and the status quo."".
Analysis
This Court has noted the submissions made for each party. This Court has noted the principles set out by the Court of Appeal andoved
qubsequently and apnd applied frequently by the Court’s and these have been summarized in Natural Waters of Viti Ltd v Crystal Clear Mineral Waters (Fiji) Ltd Civil Appeal&#BU001 18thh 2005 2005 2005 aand are as follows:
(a) Whether, if no stay is gd, the applicant's nt's right of appe60;will be rendered nugd nugatory (this is not determinative).
(b) Whether the successful party be iouslycted by the stay.
p>(c) Thc) The bona fides of the Applicants ants as to the prosecution of the appeal.
(d) The eThe effect on third parties.
(e) The novelty and importance of questions involved and the public int in the proceedings.
(g) The overall balance of convenience and the status quus quo.
The above listed factors are not exhaustive and the consideration of the 'right of a successful litigant to have the fruits of a judgment
and the need to preserve the position in case the appeal is successful' is not lost sight of by this Court.
The matter that was before the Court was one on issue of money given to the Defendant. The Court determined in the matter whether it was given as a gift or under an agreement. The Applicant seeking stay has not put arguable material before this Court on the issue how if no st is granted, the, the applicant's right of appeal will ndered nugatory, apartapart from incorrectly stating the appellant is abroad and if successful the appeal will be nugatory. In fact the appellantllant is the Defendant, who is in Fiji, while taintihe respondent in t in this this application stays overseas. Similarly, the applicant has not shown to the Court whether the successful party will be injuriously affected by the stay. The affidof the AppliApplicant does not contain any evidence on these very crucial issues. Simply annexing the grounds of appeal and stating that the Applicant has merit and likely to succeed is not en On an analysis of the mate materials before it the Court finds that the overall balance of convenience and the status quo would be against granting of stay.
Having considered all the above factors the Court refuses stay.
For the foregoing reasons the Court orders as follows:
(a) Stay refused.
(b) No order as to costs.
Dated at Nausori this 27th day of June 2016.
.....................................
Chaitanya Lakshman
Resident Magistrate
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