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Formscaff(Fiji) Limited v Kurulo [2006] FJHC 96; CC No. 142 of 2000 (22 December 2006)

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 142 OF 2000

BETWEEN:

FORMSCAFF (FIJI) LIMITED
Plaintiff

AND

SULIASI KURULO
PITA CILI and
VUNIYANI NAKAUYACA
Defendants

Ms. Y. Fatiaki for the Plaintiff
Mr. E. Maopa for the 1^st Defendant

Date of Decision: 22 December 2006

DECISION

By summons dated 17 May 2001 Suliasi Kurulo, the first defendant (hereafter referred to as the 'applicant') applied for the following orders:-

(a) stay of execution of the default judgment herein of 11 September 2000.

(b) setting aside of the said judgment entered against him.

(c) leave be granted him to file Statement of Defence.

The applicant filed an affidavit in support to which the respondent/plaintiff replied on 23 September 2002.

After the parties appeared before me on 5 June 2001 they decided, inter alia, to discuss settlement. Hence, the matter was adjourned on numerous occasions for the purpose by the Court. The Deputy Registrar put the application before me for 3 September 2004 for direction when I stated to both counsel that 'almost 18 months gone but no progress. Both counsel to file written submissions within 5 days. Judgment on Notice'.

The plaintiff filed its submission on 6 September 2004 but the applicant failed to comply with the Court order. In the circumstances the Registry referred the file to me for directions on my return from leave on 7 December 2006. I now give my decision herein on the affidavits and submission (from the plaintiff) placed before me.

In default of defence, default judgment was entered against the defendants in the sum of $17,467.00 and $267.00 costs as claimed by the plaintiff in the writ of summons herein.

It is only the applicant who disputes the claim and not the other two defendants.

This was a regular judgment. According to the affidavit evidence herein, much of what the applicant has been saying in support, is water under the bridge. The reason being that since the time the application has been made the defendants have admitted the bulk of the claim by payments leaving a balance of $7467.00.

There is no doubt that the applicant along with the other two defendants are the registered Trustees of the World Festival of Praise Trust under the Charitable Trusts Act. They incurred the debt herein. Judgment by default was entered against all three defendants and they are still all jointly and severally liable.

In the circumstances, I cannot see how the applicant can escape payment of the debt. The other two defendants do not deny the claim. I do not accept the applicant's reasons for not wanting to admit the claim when in fact a substantial amount of the debt has been paid by the defendants.

There are certain basic preconditions which have to be fulfilled by an applicant. They are: "(i) reasons why judgment was allowed to be entered by default, (ii) an affidavit deposing to facts that show that the defendant has a defence on the merits." (Pankaj Bamola & Anand Priya Maharaj v Moran Ali Civil Appeal No. 50/90 F.C.A.). These have not been fulfilled.

The applicant has not reasonably explained the reasons for the 'delay' in making the application. The default judgment was entered on 11 September 2000 and the applicant filed the Summons to set aside on 16 May 2001 which is a delay of some 9 months.

Principles on setting aside judgment

The legal principles applicable to the setting aside of a judgment are well stated in the written submission of the plaintiff.

Order 13 r.10 of The High Court Rules 1998 provides for the setting aside or varying a judgment entered in default.

The White Book 1979 Volume 1 at p 129 sets out the general principles upon which the Court acts in an application to set aside a judgment which has been regularly obtained. They are, inter alia, as follows:-

"If the judgment is regular then it is an (almost) inflexible rule that there must be an affidavit of merits i.e. an affidavit stating facts showing a defence on the merits [Farden v Richter [1889] UKLawRpKQB 79; (1889), 23 Q.B.D. 124]. At any rate where such an application is not thus supported, it ought not to be granted except for some very sufficient reason, per Huddleston, B., ibid. p.129n."

"For the purpose of setting aside a default judgment, the defence on the merits which the defendant is required to show need only disclose an arguable or triable issue... (Burns v Kondel [1971] 1 Lloyd's Rep. 554, C.A.)."

The Court considers in the exercise of its discretion whether there is prima facie defence on merits [Evens v Bartlam (1937) AC 473]. On the 'defence on merits' the applicant has to show that there is a reasonable chance of success [Sir Roger Omond in Alpine Transport Co. Inc. v Saudi Eagle Shipping Co. Inc. (1986) 2 Lloyds Rep. 221 C.A.).

A useful summary of the factors to be taken into consideration is to be found under Notes to Or 13 r.9 of The Supreme Court Practice 1995 Vol. 1 at 142, where it is stated:-

"The purpose of the discretionary power is to avoid the injustice which may be caused if judgment follows automatically on default. The primary consideration in exercising the discretion is whether the defendant has merits to which the court should pay heed, not as a rule of law but as a matter of common sense, since there is no point in setting aside a judgment if the defendant can show merits, the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication. Also as a matter of common sense the court will take into account the explanation of the defendant as to how the default occurred."

Conclusion

Bearing in mind the above principles I hold that on the facts of this case the applicant does not disclose a meritorious defence. There is no evidence that the applicant has a prima facie defence.

For the reasons given the application for orders sought is refused and is therefore dismissed with costs to plaintiff the sum of $300.00 payable by the first defendant to the plaintiff's solicitors within 14 days. There is already a judgment against the applicant and hence the plaintiff is at liberty to proceed to execute the judgment for the balance sum.

D. Pathik
Judge

At Suva
22 December 2006