Upon the conclusion of the
hearing I ruled against the Appellant and refused its application. I said I
would publish my
reasons later. This I now do.
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The
Background
In a
ruling delivered by MuriJ. on 3rd July 2001, His Lordship
dismissemissed the Appellant�s claim and awarded the Respondent�s counter-claim
in the sum of
AUD $410,000 plus costs on indemnity basis. This ruling was
appealed by the Appellant in a Notice of Appeal filed on 2nd
August 2001. Security for costs of the appeal was ordered by the Registrar
on 10th September 2001. By an Order made by the Registrar on 28th
September 2001, the Appellant upon its own undertaking, was ordered to pay
SBD 30,000.00 and SBD 370,000.00 respectively.
The sum of SBD 30,000.00 was
to cover costs whilst the sum of SBD 370,000.00 was to abide any money
judgment resulting
from the appeal. These two sums were to be paid into
Court on or before 11th October 2001. The enforcement of the
judgment under the provision of the Deed of Acknowledgement of Debt and
Forbearance
was therefore stayed on this basis pending a decision in the
appeal.
The
Appellant�s Case
The only
evidence in support of the Appellant�s applon was Mr. Ashley�s
a affidavit filed on 14th October 2001. That affidavit simply said
that Mr. Ashley was acting on the instructions of his client, the Appellant.
No other reason was given.
The
Respondent�s case
Counsel
he Respondent, Mr. Sullivan, quite rightly, in my view, opp, opposed the
application. Firstly, he said that paragraph
1 of the of the Appellant�s
grounds of appeal admitted that the Appellant owed the Respondent AUD
100,000.00. That admission,
he said, was enough to persuade the Court to
dismiss the application with costs. That is to say that even if the
Respondent
lost the appeal, the Appellant would still have to pay to the
Respondent AUD 100,000.00 which in the local currency would amount
to well
over SBD 200,000.00 not to mention interest and costs. Secondly, Mr.
Sullivan argued that it was unfair for the
Appellant to come to court to
remove the sum of SBD 370,000.00 because the stay of execution of the
judgment in favour
of the Respondent was the making of the Appellant. All in
all, he said the Appellant�s application made no sense.
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My
Decision
In my
view, the Appellant�s application was an odd one. I say this because having
made an undertaking to pay the sums
specified in the Court Order dated 28th
September 2001 and having paid those sums, it came back and wanted the sum
of SBD 370,000.00 paid out again before its
appeal could be heard. Its
action was in effect to defeat the whole purpose of the order made on 28th
September 2001. The payment into court of SBD 370,000.00 was clearly a
security for the immediate payment of the Appellant�s
indebtedness to the
Respondent at least to cover the admitted indebtedness of AUD 100, 000.00 if
the Appellant won its
appeal. The sum SBD 370,000.00 may well be
insufficient if the Appellant should lose its appeal for the
balance of AUD 310,000.00 may not even be recouped out of the sale of the
land in Gizo, Western Province. It is on this
basis that I refused the
Application with costs. There was no ground at all to sustain the
Application and I dismissed
it accordingly.
F.O.
Kabui
Judge
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