Wellfit Investments Ltd. v. Poly Commence Ltd. and Another

IN THE COURT OF APPEAL

1996, No. 56
(Civil)

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J U D G M E N T

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Godfrey, J.A. (giving the judgment of the court) :

1. The successful appellant in this appeal contends that the order to be made by this court should include an order for the vacation of the lis pendens affecting the property the subject of the proceedings which had been registered by the unsuccessful respondent prior to our judgment indicating our intention to dismiss the respondent's action for specific performance. If our judgment stands, the respondent will have lost all interest in the property and will no longer be entitled to maintain the registration of the lis pendens; but the respondent proposes to appeal to the Privy Council and indeed that appeal is now in the course of preparation.

2. The appellant points out that the property is now sterilised and its value may go down before the date on which the Privy Council finally determines the respondent's appeal, in which case the appellant, if successful in the Privy Council, would have suffered loss. The appellant is anxious to protect itself against that loss.

3. This is understandable. But it is not possible for us to ensure that any such loss will be the subject of compensation to the appellant.

4. The best we can do, we think, is this. We will order that the lis pendens be vacated, on the footing that that is the natural consequence of our judgment. However, we will also order that the order vacating the lis pendens be stayed, pending the determination of the respondent's appeal to the Privy Council. We think it necessary to provide some machinery for monitoring this arrangement, and so we propose to stay the operation of our order vacating the lis pendens only until 4 March 1997. By that time, we anticipate the respondent's appeal to the Privy Council, if prosecuted with due diligence, will be under way.

5. The order will further provide that the appellant is to be at liberty, at any time before 4 March 1997, to apply to discharge the stay if so advised, and that the respondent is to be at liberty, at any time before 4 March 1997, to apply for an extension of the stay if so advised. This is the best we can do to protect the interests of both the appellant and the respondent.

6. We do not feel able further to assist the appellant against the risk of a fall in the value of the property by the time the respondent's appeal comes to be disposed of by the Privy Council.

7. The costs of the hearing today will be costs in the appeal to this court.