Kemp v Grand Bahama Construction Company Ltd v Stuart

• Jurisdiction: Bahamas
• Judge: Sawyer, J.
• Judgment Date: 09 December 1994
• Court: Supreme Court (Bahamas)
• Docket Number: No. 1591 of 1988
• Date: 09 December 1994

Supreme Court

Sawyer, J.

No. 1591 of 1988

Kemp

and

Grand Bahama Construction Company Limited

Stuart

Appearances:

Mr. F.R.M. Smith with Ms. Bridgewater for plaintiff

Mr. B. Moree with Mrs. Hanna-Bellot for defendants

Practice and procedure - Taxation of costs — Stay of execution of judgment by the Deputy Registrar pending the appeal to the Court of appeal — Where an unsuccessful party to litigation is exercising an undoubted right to appeal the Court would normally grant a stay of execution of the judgment then under appeal where that appeal is bona fide so as to prevent the appeal if successful, from being nugatory — Plaintiff resident outside the jurisdiction and is currently disposing of assets — If the defendants are successful in the appeal they may have to institute proceedings in another jurisdiction to recover any funds from the plaintiff — First defendant ordered to open a joint interest bearing savings account in the joint names of counsel for the plaintiff and for the defendant, the sum of $200,000 to abide the outcome of the appeal.

Sawyer, J.

1 On 30th November, 1994, I granted a stay of execution (on terms) of the judgment (assessment of damages) by the Deputy Registrar pending the appeal to the Court of Appeal. At that time, Mr. Smith invited me to put my reasons for so doing in writing. This I now do.

2 As I understand the law, where an unsuccessful party to litigation is exercising an undoubted right of appeal, the Court will normally grant a stay of execution of the judgment then under appeal where that appeal is bona fide, so as to prevent the appeal, if successful, from being nugatory — see e.g., Wilson v. Church (No. 2) (1879–80) 12 Ch. D.

3 In this case, while there is to be no appeal on the issue of liability, there is an appeal, not only as to quantum of damages but as to whether the correct principles of law applicable to the assessment of damages in this jurisdiction have been applied. There was nothing to suggest that the appeal, albeit limited as just mentioned, is not bona fide.

4 Furthermore, I was satisfied on the evidence that the plaintiff is resident outside the jurisdiction and that he had sold at least two of his assets in The Bahamas – the house and shares in a business. It therefore followed that if the defendants are successful in their appeal and the judgment has not been stayed, they may then have to institute proceedings in another jurisdiction to...