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IN IGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION
ACTION NO. HBC0062 OF 1996
ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> BETWEEN:
FIJI DEVELOPMENT BANK
lang=EN-GB style="font-famt-family: Times New Roman">of 360 Victoria Parade, Suva
Plaintiff
AND:
SETAREKI TUKANA aka SETARIKI TUbr> and SANAILA WAQAVUKA
both of Waimanu, Wainimala, Naitasiri, Farmers
Defendants
D. Sharma for the Plaintiff
A. Singh for the Defendants
Dates of Submissions and Hearing : 18th September, 2nd er 1997
and 30th April 1998
Date of Judgment: 29th 29th June 1998
JUDGMENT
b> This is one of the most implausible and unmeritorious applications to set aside a Default Judgment it has been my misfortune to have
to consider for some time. Those few words suffice to indicate the result of the application but before reaching that stage, because
there have been the usual affidavits for and against the application and detailed submissions on behalf of the parties it is necessary
for me as a Judge to deliver reasons for my decision in the form of this judgment. The application made by the Defendants has caused
me to devote time to a matter which does not merit such attention at the expense of other cases in my list which are far more deserving
of the Court's time.
The facts which are not disputed are these:
On the 20th of February the Defendants obtained a loan of $11,607 from the Plaintiff. The money was to be used to d to start a commercial
farm at Wainavau, Wainimala, Naitasiri.
On the 14th of July 1990 the Defendants obtained a second loan of $14,216 from the Plaintiff for the purchase of a property belonging
to one Kelevi Tuvu and a portion of his debt of $15,000 at Wainavau, Naitasiri. They then proceeded with their commercial farm and
used some money from their second loan. The Plaintiff paid out the fund according to the Defendants' instructions.
On the 15th of May 1995 the Plaintiff informed the Defendants that they were defaulting on their repayments and were given until the
15th of June to bring their payments up-to-date. The Defendants did not reply.
On two other occasions on the 29th of Jnd 16th of October 1995 the Plaintiff reminded the Defendanendants again to pay arrears owing
on their account failing which the Plaintiff would take legal action. Again the Defendants did not reply.
On the 13th of February 1996 the Plaintiff issued a Writ claimhe amount of $22,169.36 from the Defendants. The Plaintiff tiff also
issued two bankruptcy notices which were served on the Defendants.
They did not give any notice of their intention to defend the action and so the Plaintiff entered judgment in default of defence against
them on the 20th of March 1996.
On the 5th of February 1997 the Defendants applied to set aside the Default Judgment. That cation is now before the Cohe Court.
The Law
There are numerous authorities on the question of when a Judgment obtained by Defcan be set aside. Here the the judgment obtained
by the Plaintiff was regularly entered and the Court has a discretion to set it aside. The leading case is Evans v. Bartlam (1937) AC 473 where the House of Lords stated that the primary consideration in the exercise of the Court's discretion is whether an Applicant
has a defence on the merits.
The meaning of "a defence on thets" was explained by Sir Roger Ormond in Alpine Bule Bulk Transport Co. Inc. v. Saudi Eagle Shipping Co. Inc. (1986) 2 Lloyds Rep. 221, C.A. His Lordship explained that the defence put forward by the Defendant must be one with a reasonable chance of success.
In addition under Order 13 rule 10 of the High Court Rules 1988 the Court has authority to set aside a Judgment on any terms that
it thinks just.
Evans v. Bartlam also held that provided there is a reasonable explanation for any delay the Court may in its discretion grant the application.
In Donovan v. Official Ass unreported decision of Master Grant High Court of New Zealand 21st July 1992 the MasteMaster accepted the Applicant's delay of 5
years because he had no funds to pay his solicitors.
In Davis v. Pagett (1986) 10 F.C.R. 226 the Federal Court of Australso stated that a delay is n is not fatal unless it would prejudice the Plaintiff.
Here the Defendants submit that there will be a miscge of justice if the judgment is not set aside. This submisubmission appears to
proceed on the premise that because the Plaintiff is a bank it will not suffer damage in the event that the judgment is set aside.
It is submitted that the Plaintiff has continued to conduct its business without relying on its judgment and that setting aside the
judgment will not affect the Plaintiff's business or activities.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In my opinion this submission sounds more in the realm of Robin Hood than the law in that it suggests that because the Plaintiff is
a bank it has more money than the Defendants and can afford to have its judgment set aside. The short answer to that argument is
that Robin Hood was a myth, and his story is pure fiction; the modern world of commerce is by contrast hard reality.
I therefore reject this submission.
Is There Any Defence On The Merits?
The Defendants allege that they did not sign any of the loan documents but have not provided any proof of this. Further on the question
of delay in paragraphs 12, 15 and 20 of the Defendants' first affidavit they give three different reasons for their delay in applying
to set aside the judgment. In paragraph 12 the Defendant Setareki Tukana states that he left everything to his brother to have the
matter resolved.
In paragraph 15 however he states that he believed this action had been discontinued wi any apparent reason being eing given and in
paragraph 20 he says he did not apply earlier because he wanted to avoid legal expenses and could not afford expensive litigation.
These three paragraphs are so contradictory that I find it impossible to hold that the Defendants have any defence on the merits.
Even at this stage their credibility must be seriously questioned.
Lastly, as thoughsatisfied with the above claims, the Defendants plead the common law defence of mistake. See. Setareki Tukana says
he was not aware of the consequence of his actions in that he did not know that he would be a personal guarantor of the loan if his
brother the Second Defendant defaulted in his payments. He also states that the Loans or Bank Officer of the Plaintiff did not explain
the full import of his undertaking which contributed to his mistake.
In Jacobs v. Batavia and General Plantations Trust (1924) 1 7 Lawrence J. said at 295:
"It is firmly established as a rule of law that parol evidence cannot be admitted to add to, vary or contradict a deed or other
written instrument. Accordingly, it has been held that... parol evidence will not be admitted to prove that some particular term,
which had been verbally agreed upon, had been omitted (by design or otherwise) from a written instrument constituting a valid and
operative contract between the parties..."
Thus in this case the ps are confined to their contract and cannot adduce evidence to show that their intention waon was misstated
in the contract. In my opinion the Defendants are the authors of their own misfortune. On a number of occasions the Plaintiff inspected
the properties and warned the Defendants that they should work harder than they were to develop them so as to make a profit from
any produce. Whatever the reasons for this, be they pure laziness or mere indifference, in my judgment the Defendants had every opportunity
to develop the properties but failed to do so. They thus cannot be heard to blame the Plaintiff for their own inaction.
In my judgmeno the Defendants have attempted to mislead the Court. For example they allege that the Tran Transfer and Notification
Documents were signed before the Bank's Supervisor and not by the signatories as required by Section 22 of the Land Transfer Act Cap. 131. I am satisfied this allegation is false. The documents were signed before a Commissioner for Oaths. They also allege that
only a small portion of the loan fund approved was disbursed to the Defendants when in fact the evidence is that a major portion
of the sum was disbursed with the approval and knowledge of the Defendants.
Finally in this regard in paragraph 12 of their second affidave Defendants allege that the total withdrawal was $2,555 wh55 whereas
earlier in the same affidavit they state that the total amount withdrawn was $3,917. I am surprised that the solicitor who presumably
drew these affidavits did not point out to the Defendants these contradictions but perhaps if he did the Defendants chose to ignore
any advice given.
At the present time I am informed thperties remain unsold causing the Plaintiff to suffer conticontinuing loss. I repeat what I said
at the beginning of this Judgment: the Defendants' claims lack any merit and in my view also any credibility. For these reasons I
dismiss the application to set aside the Default Judgment and order the Defendants to pay the Plaintiff its costs which I fix at
$170.00.
JOHN E. BYRNE
JUDGE
Legislation and authorities referred to in judgment:
Land Transfer Act Cap. 131.
Alpine Bulk Transport Co. Inc. v. Saudi Eagle Shipping Co. Inc.
(1986) 2 Lloyds Rep. 221, C.A.
Davis v. Pagett (1986)10 F.C.R. 226.
Donovan v. Official Assignee - unreported decision of Master Grant High Court of New Zealand 21st July 1992.
Evans v. Bartlam (1937) AC 473.
Jacobs v. Batavia and General Plantations Trust (1924) 1 Ch 287.
The following additional cases were referred to in argument:
FS. v. Mohammed Ismail FCA 2FCA 28 of 1987.
Korochine 15 Ltd. v. RP Charan Investments Ltd - unreported decision of Hammond J. New Zealand High Court dated 13th December 1994.
Cambridge Clothing Ltd. v. Simpson (1988) 2 NZLR 340.
Ella v. Commercial & Mortgage Nominees (1988) 2 NZBC 103 296.
Motor Group of Fiji Ltd. v. CIR FCA 48 of 1987.
Paterson v. Wellington Free Kindergarten Association Inc. (1966) NZLR 975.
Russell v. Cox (1983) 1 NZLR 654 C.A.
Sakatar Singh v. Wespac Banking Corporation Civil Appeal No. ABU 0022/95.
Hayman v. Rowlands (1957) 1 All E.R. 321.
Jones v. Chatfield (1993) 1 NZLR 617.
Edwards v. Edwards (1966) NZLR 783.
Supreme Court Practice 1997.
Hbc0062j.96s
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