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President Hotel Ltd v Lami Town Council [1991] FJHC 59; Hbc0129d.90s (15 November 1991)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 129 OF 1990

Between:

PRESIDENT HOTEL LIMITED
Plaintiff

- and -

LAMI TOWN COUNCIL
Defendant

No Appearance for the Plaintiff
Mr. S. Parshotam for the Defendant

RULING

This is an application by the defendant Council seeking to set aside a judgment entered in default of defence. The application is made pursuant to Order 19 rule 9 of the High Court Rules which provides:

"9. The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order."

The application was heard on the 8th of August 1991 in the absence of counsel for the plaintiff but in any event counsel's written submissions have been taken into account by the Court in arriving at its decision. It should also be noted that when the matter was fixed on the 24th of July 1991 to be argued in chambers the plaintiff was represented by counsel.

The defendant Council raises 2 grounds in its application which may be summarised as follows:

(1) That default judgment was irregularly entered before the time allowed for filing a defence had expired; and

(2) That the Court ought in the exercise of its discretion to allow the defendant to defend the action on its merits.

As to the first ground raised the Court need only examine the various time limits granted to a defendant in the High Court Rules of which there are 2:

Order 12 rule 4(a) which provides the time limited for acknowledging service:

"(a) in the case of writ served within the jurisdiction, to fourteen days after service of the writ (including the day of service) or where that time has been extended by or by virtue of these Rules to that time so extended;" and

Order 18 rule 2 which provides (so far as relevant):

"(1)... a defendant who gives notice of intention to defend an action must, unless the Court gives leave to the contrary, serve a defence on the plaintiff before the expiration of 14 days after the time limited for acknowledging service of the writ ..."

From my reading of the foregoing Rules the following propositions are clear:

Firstly, a defendant has 13 clear days, after service of a writ on him, in which to enter an appearance; and

Secondly, that a defendant who has properly entered an appearance has an additional 14 clear days within which to serve a Statement of Defence on the plaintiff i.e. a total of 27 clear days from service of the writ to service of a defence.

In this latter regard I am fortified in my view by the wording of Order 3 Rule 2(2) which provides:

"(2)Where the act is required to be done within a specified period after or from a specified date, the period begins immediately after that date."

In particular the "act" there envisaged is the 'service of defence' by a defendant after the occurrence of an event, namely, the expiration of the time limited for acknowledging service of a writ.

In this particular instance the plaintiff served the writ with Statement of Claim attached on the 11th of April 1990 and although the defendant Council had up till the end of the 24th of April to acknowledge service of the writ it chose to do so the very next day the 12th of April 1990.

Notwithstanding its early acknowledgment the defendant Council had in my view 14 clear days after the 24th of April within which to serve its defence i.e. up till the close of the civil registry on the 9th of May, 1990.

Accordingly the earliest date when interlocutory judgment could have been entered by the plaintiff was the 10th of May, 1990.

It is noteworthy that on the 4th of May 1990 (several days before time had expired for service of a defence) a search for defence was lodged by the plaintiff and returned 'No Defence Entered'.

Thereafter on the 8th of May 1990 the Council's solicitor sought by letter, from the plaintiff's solicitor, an extension of time till the end of May to serve a defence, and although it is not known when that letter was delivered to the plaintiff's counsel, his refusal by letter was not communicated to the defendant's solicitors until the 10th of May, 1990.

On the 9th of May, 1990 default judgment was entered against the defendant Council.

Order 19 rule 2 of the High Court Rules permits the plaintiff where a defendant fails to serve a defence to enter interlocutory judgment against the defendant, "after the expiration of the period fixed by or under the Rules for service of the defence".

This latter expression in turn invokes the provisions of Order 18 rule 2(2) which has been examined above. Needless to say any interlocutory judgment entered before the expiration of the period thus computed is irregular and must ex debito justitiae be set aside.

In the result I hold that the plaintiff's interlocutory judgment in default of defence was irregularly entered on the 9th of May, 1990 BEFORE the period given to the defendant Council to serve its defence had expired and in the circumstances must be and is hereby set aside.

However if the Court is incorrect in its interpretation and computation of the time limited by the relevant Rules then in exercising the court's unfettered discretion in the matter and mindful of the general principles enunciated in Evans v. Bartlam [1937] AC at p. 480 and bearing in mind that the defendant Council has provided a detailed affidavit of merits and a comprehensive proposed Statement of Defence, I order that the default judgment entered against the defendant Council on the 9th of May 1990 be wholly set aside.

By way of further directions I order that the defendant Council file and serve a Statement of Defence on the plaintiff's solicitor's within 7 days of the date hereof with the action thereafter to follow its normal course. I make no order as to costs.

(D.V. Fatiaki)
JUDGE

At Suva,
15th November, 1991.

HBC0129.90