Commercial Law Index

The background to this application is that the applicant filed against the respondent seeking to recover US$75,000, as payment made in error under a guarantee, interest and costs. The respondent counter-claimed for US$31,767 being the balance owed by the applicant on the guarantee, general damages for breach of the contract of guarantee, interest and costs.

The issue in contention was whether the plaintiff having represented to the defendant that it was entitled to a payment and even made part payment was barred by estoppels from claiming a refund of monies paid to the defendant after the failure of the third-party to make good on its obligations to the plaintiff.

It was held that a court can only exercise the discretion to grant a stay of execution if there are special circumstances and good cause to justify a stay. The inability of the victorious party to be able to refund the decremental amount in the event of a successful appeal is one of such special circumstances if proved.

The court held that the applicant failed to adduce any evidence to show that the respondent will not be able to restore it to the status quo ante if its appeal succeeded. Also, the deponent should have gone a step further to lay the basis upon which the court could make a finding that the applicant would have suffered substantial loss as alleged. The applicant should have gone beyond the vague and generalised assertion of substantial loss in the event a stay order is not granted. It is against this background that the court dismissed the application.