| Fiji Islands - Charan v National Insurance Co Ltd No. 2 - Pacific Law Materials |
IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT OF FIJI
CIVIL APPEAL NO. ABU0067 OF 1998
(High Court Civil Case No.HBC 261 OF 1998)
:
SURESH CHARAN
Applicant
AND:
NATIONAL INSURANCE CO. LTD.
Respondent
In Chambers Hon.ice tice I.R. Thompsonmpson, Justice of Appeal
Hearing: 16 November 1998; 19 November 1998, Suva
Date of Decision: Fri27 November 1998
Counsel: Mr. M. Raza for the Applicant
Mr. K. Muaror for the Rese Respondent
DECISION IN CHAMBERS
The application now before me is in the names of Suresh Charan and Anuradha Charan. Anuradha Charan was not a party to the proceedings
in the High Court; so she has no standing to make the application. I direct, therefore, that her name be removed from the title of
this application. Suresh Charan is the sole applicant.
A writ of summons issued out of the High Court to the applicant was served on the respondent on 14 May 1998. The claim was for both
liquidated and unliquidated damages. The time within which the notice to defend had to be given was 14 days ( High Court Rules 1988
O.13 r.7 read together with O.12 r.4). On 2 June 1998, after that time had expired, the applicant caused judgment to be entered for
the amount of the liquidated damages claimed and for the unliquidated damages to be assessed. On 3 June 1998 the respondent filed
in the High Court an acknowledgment of service of the writ of summons. It subsequently applied for the default judgment to be set
aside. In pursuance of O.13 r.10 Scott J., having received evidence from both parties by affidavit, set it aside.
The application before me now is made to a single judge of the Court of Appeal. It seeks first to have Scott J’s order set aside
and the default judgment restored. Except with the consent of the respondent a single judge cannot do that. However the application
is, in the alternative, for leave to appeal against the order. A single judge does have power to deal with that application and I
now do so.
The applicant says that the evidence before the learned judge did not justify the order which he made. He points first to the fact
that the only affidavit filed in the High Court by the respondent was sworn by a barrister and solicitor employed by the firm of
solicitors representing the respondent. She gave an account of the circumstances in which the notice of intention to defend was not
filed within the time limit. She also exhibited to the affidavit a draft statement of defence and stated the grounds of defence in
terms of facts alleged in the statement of defence. She did not herself assert the existence of any of those facts. Nor did she exhibit
to her affidavit any documents relating to them (other than the draft statement of defence). There was, therefore, no affidavit of
merits before Scott J. In Wearsmart Textiles Ltd. v. General Machinery Hire Ltd. and Sharma (Civil Appeal No. ABU 0030 of 1997S: 29 May 1998) this Court held that a party seeking to have a default judgment set aside must adduce
evidence of facts to show that he has a meritorious defence, as that expression has been explained in Alpine Bulk Transport Co. Inc. v. Saudi Eagle Shipping Co. Inc., The Saudi Eagle [1986] 2 Lloyds Rep. 221.
Second, the applicant points to evidence contained in affidavits filed in this Court which show that, although the respondent in its
intended defence proposes to allege that it had cancelled the applicant’s insurance policy before the event which gave rise
to the claim which was the subject of the action in the High Court, it accepted his claim on the policy and was going to pay him
on it until a dispute arose about the quantum. He contends, therefore, that the first limb of the defence lacks merit. The second
limb of the defence relates to offers made to the applicant by the respondent and, according to it, unreasonably rejected by him.
Essentially the dispute between the parties concerned mainly the amount which the respondent was willing to pay for spare parts needed
for the repair of the applicant’s car. In his statement of claim the applicant said that the respondent was prepared to pay
only 70% of the list price for the spares. From the bar table Mr. Muaror told me that it did so because the respondent has a standing
agreement with the company which was to provide the spare parts that it would give the respondent a discount of 30% on spare parts
provided to it. However, the applicant asserted in his statement of claim (paragraph 12) that the company refused to give the 30%
discount and the respondent in its statement of defence totally failed to answer that assertion. Mr. Muaror informed me that a denial
of the assertion had been omitted from the draft statement of defence due to an oversight. However, the draft defence lacked any
such denial when Scott J. had to consider the respondent’s application to set aside the default judgment.
This Court is reluctant to give leave to appeal against interlocutory orders made in actions in the High Court. However, I am satisfied
that the applicant has established that he has good grounds for an appeal. The interlocutory order in this instance does not relate,
as so often such orders do, to matters of a procedural nature. It deprives the applicant of the benefit of a judgment entered in
his favour. In those circumstances I consider that leave to appeal should be granted.
Order: Leave to appeal is given. The notice of appeal is to be filed and served within 21 days. The costs of this application are to be
costs in the appeal.
Justice I. R. Thompson
Justice of Appeal
Solicitors:
Applicant In Person
Cromptons, Suva for the Respondent
ABU0067E.98S
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJCA/1998/49.html
