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Chandramma v Qaranivalu [2004] FJHC 428; HBC0003.1996L (11 June 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0003 OF 1996L

BETWEEN:

CHANDRAMMA
f/n Ramaiya
Plaintiff

AND:

JOSEVATA QARANIVALU
1st Defendant

AND:

RAM CHAND
f/n Sukh Lal
2nd Defendant

Counsel for the Plaintiff: Mr. S. Krishna for Ms. Vasantika Patel
Counsel for the Defendants: Mr. V. Qereqeretabua

Date of Hearing: 27 May 2004
Date of Judgment: 11 June 2004

JUDGMENT

The Application

The application before the court for consideration is a Notice of Motion filed on 23 February 2004 on behalf of the plaintiff. In that Notice of Motion, the plaintiff seeks that the Notice of Motion dated 27 October 1999 filed by the 2^nd defendant be dismissed.

Background

It appears from perusal of the court file that the 2^nd defendant filed a Notice of Motion on 11 November 1999 seeking that the judgment entered in default of defence be set aside. That Notice of Motion appears to have never come before the court notwithstanding that it was made returnable (first call) before the court on Friday, 3^rd December 1999. It appears that it was not in fact called on that day and has never been called since.

It is against this background that the court must consider the Motion that is before the court.

In support of the Notice of Motion, the plaintiff relies upon an affidavit of Eroni Maopa, sworn on 23 February 2004 and a further affidavit of the same deponent sworn on 30 March 2004. I also have the benefit of written skeleton submissions.

The Motion is opposed and in opposition the 2^nd defendant relies upon an affidavit of Ram Chand sworn on 22 March 2004.

The Issue

It would appear that the plaintiff relies upon two grounds in support of its motion to dismiss the 2^nd defendant’s motion. Those grounds are: -

1. That the Motion is defective, in that it doesn’t comply with the rules.
   
2. That there has been an inordinate and inexcusable delay on the part of the 2^nd defendant in making his application.
   

The defect upon which the plaintiff appears to rely is that the 2^nd defendant in its Motion makes reference to “High Court Rules, 1998”. It is, I would have thought, common knowledge that the High Court Rules are in fact 1988 and accordingly it is obvious that the reference to 1998 is a mere typographical error.

The application by the 2^nd defendant to set aside the judgment was filed on 11 November 1999. Default judgment was entered on 30 September 1998. There appears to have been a lapse of almost 15 months from the entry of judgment until the filing of a Motion. From the affidavits filed, it is apparent that there is a significant difference of opinion as to the reason for delay and with respect to the conduct of the respective legal representatives throughout that 15 month period and prior thereto with respect to the matter.

In the circumstances, it would seem quite inappropriate for the 2^nd defendant’s Notice of Motion to be summarily dismissed and accordingly, I do not propose to do so.

Orders of the Court

1. Plaintiff’s Notice of Motion dated 23 February 2004 is dismissed;

2. The defendant’s Notice of Motion dated 27 October 1999 is to be listed before the Deputy Registrar on 25 June 2004 for the purpose of fixing hearing date of that Motion;
   
3. The parties are at liberty to file further affidavit evidence and further submissions with respect to the 2^nd defendant’s Notice of Motion and a timetable for so doing is to be set at the time the matter is listed for hearing;
   
4. The cost of the Motion are to be costs in the cause.
   

JOHN CONNORS

JUDGE

AT LAUTOKA

11 JUNE 2004