Seale Street Developments Ltd v M.A. Chapman (Née Godel) (En Désastre) and D.H. Chapman

JurisdictionJersey
CourtCourt of Appeal
JudgeCollins, Harman and Machin, JJ.A.:
Judgment Date03 December 1992
Date03 December 1992
COURT OF APPEAL
Collins, Harman and Machin, JJ.A.:
neen dsastrene

F.J. Benest for the applicant;

G. Le v. Fiott for the representor in the original application.

Cases cited:

(1) Abdel Rahman v. Chase Bank (C.I.) Trust Co. Ltd., 1984 J.J. 127, considered.

(2) Bailhache (ne Hubert) v. Williams (ne Lewis), 1968 J.J. 1067.

(3) Barker, In re, 1987-88 JLR 1, followed.

(4) Barker v. Merchant Vintners Ltd., C.A., October 15th, 1981, unreported, not followed.

(5) G v. G, [1985] 1 W.L.R. 647; [1985] 2 All E.R. 225, considered.

(6) Orion Property Trust Ltd. v. Du Cane Court Ltd., [1962] 1 W.L.R. 1085; [1962] 3 All E.R. 466; (1962), 106 Sol. Jo. 689, applied.

(7) Polini v. Gray (1879), 12 Ch. 438; [1874-80] All E.R. Rep. 657; 41 L.T. 173; 28 W.R. 360, applied.

(8) Sloan (ne Amy) v. Sloan, 1987-88 JLR 651.

(9) Wilson v. Church (No.2) (1879), 12 Ch. D. 454, applied.

Additional cases cited by counsel:

Big Deal Carpets Ltd. v. Baylee Aircraft Servs. Ltd., Royal Ct. (1978), 265 Ex. 256, unreported.

Bisson (ne Ferbrache) v. Bisson, 1981 J.J. 103.

Fort Regent Dev. Cttee. v. Regency Suite Discothque & Restaurant Ltd., 1990 JLR 321.

Hamon v. Fisher's Grocery Stores Ltd., Royal Ct. (1962), 253 Ex. 415, unreported.

I.B.L. Ltd. v. Planet Fin. & Legal Servs. Ltd., 1990 JLR 316.

Lane (ne Coverdale) v. Lane, C.A., November 18th, 1985, unreported.

Purdie v. Bailhache & Bailhache, 1989 JLR 111.

Wykes, In re, Royal Ct. (1966), 256 Ex. 27, unreported.

Text cited:

Supreme Court Practice 1991, vol. 1, para. 59/13/1, at 957.

Civil Procedurestay of executionpower to stayunfettered discretion to grant stay if reasonable appeal otherwise rendered nugatory and adverse effects would outweigh inconvenience caused by stayparty resisting stay to show special cause for refusal

The second defendant to the first action applied under the Court of Appeal (Civil) (Jersey) Rules, 1964, r.15 for a stay of execution pending appeal against an order of the Royal Court determining his contract lease of business premises from the plaintiff in that action.

The defendants to the first action leased business premises from the plaintiff from which his wife, the first defendant, operated as sole trader. They fell behind in rental payments and a distraint order was placed upon them which prevented the first defendant from continuing her business. She was subsequently declared en dsastre. Since the Bankruptcy (Dsastre) Jersey Law, 1990 prohibited proceedings against a person en dsastre, the plaintiff brought proceedings against the second defendant for the arrears of rent, interest and payment into court of the next two quarters' rent. His answer was supported by an affidavit from his wife which alleged that the distraint order was a deliberate attempt by the landlord company to disrupt her business, thus making it impossible for them to pay the next quarter's rent. In proceedings before the Royal Court (Crill, Bailiff and Jurats Coutanche and Rumfitt), the lease was annulled and an application by creditors in the dsastre, including the plaintiff in the second action, to allow the first defendant to trade herself out of her financial difficulties was refused. The second defendant served notice of appeal against the decision and made the present application for a stay of execution of the order determining the lease pending the outcome of the appeal.

He submitted, inter alia, that if a stay were not granted, his appeal would be rendered nugatory, the adverse effects of which would far outweigh any inconvenience caused to the plaintiff in the first action by the delay requested.

Held, granting the application:

The court would exercise its unfettered discretion in the applicant's favour. If a stay were not granted, his appeal (which was based on a reasonable ground) would be rendered nugatory, the adverse effects of which would far outweigh any inconvenience caused to the landlord by the delay requested, since the first defendant would irretrievably lose her main source of income and would effectively be prevented from raising the dsastre. There was nothing in the lease itself to preclude an application to reverse its annulment. Nor was it for the applicant to show special circumstances justifying the stay, but rather for the party resisting the application to show special cause for the non-application of the principle. Since no such justification had been advanced, the application would be granted (page 251, lines 3-29; page 253, line 18 - page 254, line 12).

MACHIN, J.A.: On September 29th and 30th and October 1st, 1992, this court sat to hear and to determine a summons by the second respondent to the first application, David Henry Chapman, to show cause why it should not stay the execution of and/or suspend the judgment of the Inferior Number of the Royal Court to cancel the contract lease of the premises of 30 Sand Street in the Parish of St.

Helier, pending the hearing of his appeal against that judgment.

Mrs. Chapman, the first respondent and the wife of the second respondent, did not appear either in person or by counsel at the hearing of that summons, to which she was not a party. The proceedings were observed on her behalf by Advocate Sharp. Out of courtesy, we afforded Advocate Sharp an opportunity to address us if she so wished but she did not so wish.

At the conclusion of counsel's submissions, we announced the decision of the court that execution be stayed as prayed, subject to the following conditions:

1. The time for service of notice of appeal provided for by the Court of Appeal (Civil) (Jersey) Rules, 1964, r.8 should be abridged and such service should be effected by 4 p.m. on Friday, October 23rd, 1992.

2. The remainder of r.8 so far as it related to acts to be performed by the appellant should be duly complied with.

3. By 4 p.m. on October 23rd, 1992 the appellant should lodge the sum of 1,000 as security for the costs of his appeal.

4. The appellant should duly perform any other act necessary to be performed by him in order to effectuate the timely hearing of his appeal.

We now proceed to give the reasons for our decision.

Historical background Seale Street Developments Ltd. (to whom we shall refer as "the landlord") is the present owner of 30 Sand Street, St. Helier ("the subject premises"). Those premises it acquired on August 14th, 1987, by purchasing a reversion from the former owner, Mr. Shephard. On October 5th, 1984, Mr. Shephard had let the premises to Mr. and Mrs. Chapman ("the Chapmans") on the terms of a lease ("the subject lease"). The subject lease is in French and it let the premises to the Chapmans for a term of 21 years expiring on October 5th, 2005, at a then rent of 8,000 per annum. The lease was one to the Chapmans jointly ("conjointement par ensemble pour eux") and it contained provisions for annulment (cll. 9 and 11) which will require our...

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