IN THE HIGH COURT OF FIJI
(WESTERN DIVISION) AT LAUTOKA
EXERCISING CIVIL JURISDICTION

CIVIL ACTION No. HBC 48/2010

BETWEEN:
THE FANTASY COMPANY OF FIJI LIMITED, 
a limited liability company, having its registered office at Lot 16 SO 3958, Fantasy Subdivision, Wailoaloa, Nadi.
FIRST PLAINTIFF

AND:
MASATOSHI KAYANO, 
of Lot 22 & 23, Kayano Road, Fantasy subdivision, Nadi, Shareholder & director.
SECOND PLAINTIFF

AND:
JAI PRASAD 
of Votualevu, Nadi, shareholder and director.
DEFENDANT

BEFORE
Mr. Justice Mohamed Mackie- J.

APPEARANCES:
Mr. Narayan A. (s) with Ms. Kumar P. For the Plaintiffs.
Mr. Singh R. with Ms. Sharma. For the Defendant

HEARING:
By way of Written Submissions as agreed on 22nd August 2025.

WRITTEN SUB:
Filed by the Defendant of 5th September 2025.
Filed by the Plaintiff on 29th September 2025.
Filed by the Defendant (Reply) on 20th October 2025.   

DECIDED:
On 4th December 2025.
	
RULING
(On Setting Aside & Stay)

A.	INTRODUCTION:

1.	Before me is a SUMMONS (“the Application”) filed by the Defendant on 20th May 2024, seeking the following reliefs;

1.	That there be a stay for execution and further proceeding on the Judgment entered against the Defendant on the 14th July, 2021 and 31st of March, 2023 by the Plaintiffs pending the outcome of this application.

2.	That the Judgment entered on 14th July, 2021 and 31st of March, 2023 by the Plaintiff against the Defendant be set aside unconditionally.

3.	That a fresh trial date be assigned.

4.	That the costs of this Application be costs in the cause.

5.	Any further or other orders this Honourable Court deems fit.

2.	The Application states that it is made pursuant to Order 19 Rule 9 and order 14 Rule 11 of the High Court Rules 1988 and the inherent jurisdiction of this Court.

3.	The Application is supported by the Affidavit sworn by Mr. JAI PRASAD (the Defendant) on 29th April 2024 and filed on 20th May 2024, together with annexures marked as “A” to “D”.

4.	The Application is vehemently objected by the Plaintiffs. They filed their Affidavit in opposition on 18th November 2024, being sworn on 15th November 2024 by Mr. Abbas Ali, the Managing Director cum Shareholder of the 1st Plaintiff Company, with authority from both the plaintiffs marked and annexed as “AA-1” & “AA-2”.

5.	The Defendant filed his Affidavit in reply on 28th January 2025, being sworn on 11th December 2024, with no further annexures.

B.	BACKGROUND:

6.	The factual background to the present matter before me is narrated in detail in the decision dated and pronounced on 14th July 2021 by my predecessor judge Hon. A.G. Stuart (as he then was) pursuant to the substantive hearing held before him in relation to the Originating Summons, and in my Ruling dated and pronounced on 31st March 2023 pursuant to the hearing held before me on the assessment of damages. These decisions are filed of record and currently found in https://www.paclii.org Paclii, under the name and style of The Fantasy Company of Fiji Ltd v Prasad [2023] FJHC 192; HBC48.2010 dated (14 July 2021) & (31 March 2023).
 
C.	THE PRESENT APPLICATION:

7.	This Application in hand for Stay and to Set aside the Default Judgment by the Defendant was filed on 20th May 2024. The Defendant seeks to stay and set aside my predecessor’s aforesaid substantive Judgment pronounced on 14th July 2021 and my Ruling on assessment of damages pronounced on 31st March 2023. I note without comment that the Application has been made after a delay of 2 years, 10 months and 6 days from the date of substantive judgment by my predecessor, and 01-year, 01 Month and 19 days from the date of my Ruling on assessment of damages.

D.	THE LAW:

8.	Bearing the factual background in mind, before considering the whole evidence adduced by way of affidavits and the annexures thereto, it is pertinent to briefly discuss the relevant law that governs the subject of setting aside a default judgment and stay of execution, found in the High Court Rules 1988. I will refer to few decided authorities as well on the subject as and when need arises. 

9.	An application to set aside a Default Judgment is not the invocation of an appellate jurisdiction, but a specific process that enables the Court to hear all parties involved and set aside, if it deserves, its own Orders/ Judgments/ Rulings / Decisions in certain circumstances, where the matter has never been heard on its merits, or if it has been entered pursuant to the hearing held in the absence of the   party opposing it, which process is generally known as ex-parte / formal proof hearing.

10.	A Defendant against whom a judgment in default has been entered may apply for it to be set aside under Order 13, rule 10 or under Order 19, rule 9 of the High Court Rules 1988. In situations where the Defendant has failed to file in the first instance, notice of intention to defend, then order 13, which is the appropriate process, can be relied up on by the applying party, being aggrieved by the outcome thereof.

11.	On the other hand, Order 19 comes in to play only where, after notice of intention to defend is filed, no statement of defence had followed.

12.	Another important area that may also come into play, when an application is dealt with to set aside and/ or stay of the default judgment, is found in Order 67 Rule 1or Rule 5 or Rule 6 of the High Court Rules 1988. For the reasons to be discussed later in this ruling, I find that this Order 67 Rules 6 & sub-rules thereto would play a pivotal role in the outcome of this Application before me. For the sake of lucidity and easy reference, I shall reproduce those Rules under Order 67 as follows; 

Notice of change of barrister and solicitor (O.67, r.1)

1.- (1) A party to any cause or matter who sues or defends by a barrister and solicitor may change his barrister and solicitor without an order for that purpose but, unless and until notice of the change is  filed and copies of the notice are served in accordance with this rule, the former barrister an solicitor shall, subject to rules 5 and 6, be considered the barrister and solicitor of the party until the final conclusion of the cause or matter, whether in the High Court or the Court of Appeal.

(2) Notice of change of barrister and solicitor must be filed in the Registry.

(3) The party giving the notice must serve on every other party to the cause or matter (not being a party in default as to acknowledgment of service) and on the former barrister and solicitor a copy of the notice indorsed with a memorandum stating that the notice has been duly filed.

(4) The party giving the notice may perform the duties prescribed by this rule in person or by his new barrister and solicitor.

Removal of barrister and solicitor from record at instance of another party (O.67, r.5)

5.-(1) Where-

(a) a barrister and solicitor who has acted for a party in a cause or matter has died or become bankrupt or cannot be found or has failed to take out a practising certificate or has been struck off the roll of barristers and solicitors or has been suspended from practising or has for any other reason ceased to practise, and

(b) the party has not given notice of change of barrister and solicitor or notice of intention to act in person in accordance with the foregoing provisions of this Order, any other party to the cause or matter may apply to the Court for an order declaring that the barrister and solicitor has ceased to be the barrister and solicitor acting for the first-mentioned party in the cause or matter, and the Court may make an order accordingly.

(2) An application for an order under this rule must be made by summons and the summons must unless the Court otherwise directs, be served on the party to whose barrister and solicitor the application relates. The application must be supported by an affidavit stating the grounds of the application.

(3) Where an order is made under this rule the party on whose application it was made must-

(a) serve on every other party to the cause or matter (not being a party in default as to acknowledgment of service) a copy of the order, and
(b) procure the order to be entered in the Registry, and
(c) leave at the Registry a copy of the order and a certificate signed by him or his barrister and solicitor that the order has been duly served as aforesaid.

(4) An order made under this rule shall not affect the rights of the barrister and solicitor and the party for whom he acted as between themselves.

“Withdrawal of barrister and solicitor who has ceased to act for party (O.67, r.6)

6.-(1) Where a barrister and solicitor who has acted for a party in a cause or matter has accordance with rule 1, or notice of intention to act in person in accordance with rule 4, the barrister and solicitor may apply to the Court for an order declaring that the barrister and solicitor has ceased to be the barrister and solicitor acting for the party in the cause or matter, and the Court may make an order accordingly, but unless and until the barrister and solicitor-

	(a) serves on every party to the cause or matter (not being a party in default as to acknowledgment of service) a copy of the order, and

	(b)  procures the order to be entered in the Registry, and (c) leaves at that office a copy of the order and a certificate signed by him that the order has been duly served as aforesaid, he shall, subject to the foregoing provisions of this Order, be considered the barrister and solicitor of the party until the final conclusion of the cause or matter. (Emphasis mine).

	(2) An application for an order under this rule must be made by summons and the summons must, unless the Court otherwise directs, be served on the party for whom the barrister and solicitor acted.

The application must be supported by an affidavit stating the grounds of the application.

	(3) An order made under this rule shall not affect the rights of the barrister and solicitor and the party for whom he acted as between themselves.

	(4) ………….

E.	THE PRINCIPLES OF SETTING ASIDE DEFAULT JUDGMENTS:
 
13.	A default judgment can be entered regularly or irregularly and both of these forms of judgments can be set aside on an application being made to that effect and provided the applicant satisfies the court that he is entitled for such a relief.

14.	However, there is a distinction between setting aside a default judgment for irregularity and setting aside a judgment which was in fact regular. Fry L J in Alaby –v- Praetorious [1888] UKLawRpKQB 55; [1888] 20 QBD 764 at 769 succinctly drew the distinction as follows: -

“There is a strong distinction between setting aside a default judgment for irregularity in which case the court has no discretion to refuse to set it aside, and setting it aside where the judgment though regular has been obtained through some slip or error on the part of the Defendant in which case the court has a discretion to impose terms as a condition of granting the Defendant relief.”
	
15.	This principle was adopted and applied by the Fiji Court of Appeal in “Subodh Kumar Mishra v Rent-a-car” (1985) 31 FLR 52. Thus, where an irregular default judgment is entered (for example time for acknowledging service or for serving a defence had not expired by the time the default judgment was entered) which irregularity cannot be cured, the Defendant is entitled as of right to have the judgment set aside.

16.	However, where the default judgment had been entered regularly, the Court has a wide discretion and neither Order 13, rule 10 nor Order 19, rule 9 of the High Court Rules impose any restriction in the manner in which the discretion is to be exercised

The rationale for the unconditional discretion that allows the Court to intervene is explained by Lord Atkin in “Evans v Bartlam”, 1937 DC 473 as follows;

“The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.”

17.	Lord Atkin’s pronouncement was endorsed and followed by the Fiji Court of Appeal in The Fiji Sugar Corporation v Mohammed Ismail FLRVol 34, p75.

The principles applicable for analysis of the merit of an application to set aside a default judgment are well known and settled. The leading authority is Evans –v- Bartlam [1937] 2 All E.R. 646. The following passage from the judgment of Lord Atkin in “Evans v Bartlam” is pertinent in the subject of principles on which a court acts where it is sought to set aside a regular Default judgment;

“The primary consideration is whether he has merits to which the Court should pay heed; if merits are shown the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication...........The Court might also have regard to the applicant’s explanation why he neglected to appear after being served, though as a rule his fault (if any) in that respect can be sufficiently punished by the terms as to costs or otherwise which the Court in its discretion is empowered by the rule to impose.”

18.	The principles of that case have been widely adopted in Fiji, and particularly by the Fiji Court of Appeal in Pankanji Bamola & Anor. –v- Moran Ali Civil Appeal No. 50/90 and Wearsmart Textiles Limited –v- General Machinery Hire & Anor Civil Appeal No. ABU0030/97S.

19.	In “Pankanji Bamola & Anor v Moran Ali” (supra) the Court of Appeal held;

“It is not sufficient to show a merely “arguable” defence that would justify leave to defend under Order 14; it must both have “a real prospect of success” and “carry some degree of conviction.” Thus, the court must form a provisional view of the probable outcome of the action”.

20.	In Russell v Cox 1983 NZLR 654, McCarthy J held;

“In approaching an application to set aside a judgment, which complies with the rule, the Court is not limited in the considerations to which it may have regard, but three have long been considered of dominant importance.

	They are;
	1. That the defendant has a substantial ground of defence;
	2. That the delay is reasonably explained;
	3. That the plaintiff will not suffer irreparable injury if the judgment is set aside.

21.	A useful summary of the factors to be taken into consideration is found under notes to Or. 13 r9/14 of the Supreme Court Practice Vol. I at p.142 and which is, inter alia, as follows: -

“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 has no defence, and because, 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.

22.	Therefore, the judicially recognised “Tests” may be conveniently listed as follows;

	(a) Whether the Defendant has a substantial ground of defence to the claim?

	(b) Whether the Defendant has a satisfactory explanation for the default judgment?
	
(c) The promptness with which the application is made?

	(d) Whether the setting aside would cause prejudice to the Plaintiff?

F.	THE DEFENCE ON MERITS:

23.	The major consideration on an application to set aside a default judgment is whether there is a defence on the merits. The purpose is to avoid injustice. The Defendant is seeking to deprive the claimant of a regular judgment, which the claimant has validly obtained in accordance with the rules; this is not something which the court will do lightly.

24.	In Shocked v Goldsmith (1998) 1 All ER 372 at 379ff Legatt LJ said:

“These cases relating to default judgment are authority for the proposition that when considering whether to set aside a default judgment, the question of whether there is a defence on the merits is the dominant feature to be weighed against the applicant’s explanation both for the default and any delays, as well as against prejudice to the other party.”

25.	The leading case is Evans v Bartlam [1937] 2 All 646, [1937] AC 473. In this case, the defendant had suffered judgment to be entered against him in default of appearance. The Court of Appeal ([1936] 1 KB 202) allowed an appeal from the judge’s order setting aside the judgment. But the House of Lords reversed the decision of the Court of Appeal and restored the Judge’s order.

Lord Wright ([1937] 2 All ER 646 at 656, [1937] AC 473 at 489) expressed the conclusion;

“In a case like the present, there is a judgment, which, though by default, is a regular judgment, and the applicant must show grounds why the discretion to set aside should be exercised in his favour. The primary consideration is whether he has merits to which the court should pay heed; if merits are shown, the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication... The court might also have regard to the applicant’s explanation why he neglected to appear after being served, though as a rule his fault (if any) in that respect can be sufficiently punished by the terms, as to costs, or otherwise, which the court, in its discretion, is empowered by the rule to impose.”

26.	In Vann V Awford (1986) 130 SJ 682, the judge declined to set aside a judgment given against the second defendant in default of appearance, and also a judgment given against him when damages were assessed in his absence. The Defendant had lied when he said on oath that he had no knowledge of the proceedings. On appeal Dillon LJ considered that, despite the prejudice to the plaintiffs, as there were ample arguable defences the award should be set aside and there should be a fresh hearing. He added: “Even for lying and attempting to deceive the court, a judgment for £53,000 plus is an excessive penalty if there are arguable defences on the merits.”

27.	This case was followed two weeks later by the Saudi Eagle [1986] 2 Lloyd’s Rep 221. After reviewing Evans v Bartlam and Vann v Awford, Sir Roger Ormrod came to the conclusion that the defendants in the case before the court had failed to show that their defence enjoyed a real prospect of success.

28.	These cases relating to default judgments are authority for the proposition that when considering whether to set aside a default judgment, the question whether there is defence on the merits is the dominant feature to be weighed against the applicant’s explanation both for the default and for any delay, as well as against prejudice to the other party.

G.	THE YARDSTICK THAT HAS TO BE APPLIED IN DETERMINING THE MERITS OF THE DEFENCE;

29.	The Defendant must have a case with a real prospect of success, and it is not enough to show a merely arguable defence. (Alpine Bulk Transport Company v Saudi Eagle Shipping Company, 1986 2 Lloyds Report, P 221).

30.	It must have “a real prospect of success” and “carry some decree of conviction”. Thus, the court must form a provisional view of the probable outcome of the action. Unless potentially credible affidavit evidence demonstrates a real likelihood that a Defendant will succeed on fact, no real prospect of success is shown and relief should be refused. (Wearsmart Textiles Ltd v General Machinery Hire Ltd, (1998) FJCA 26.)

31.	A person, who holds a regular judgment, even a default judgment, has something of value, and in order to avoid injustice he should not be deprived of it without good reason. Something more than merely arguable case is needed to tip the balance of justice to set the judgment aside. (Moore-Bick J in International Finance Corporation, (2001) CLC 1361).

32.	The real prospect of success means that the prospects must be better than merely arguable. The word “real” directs the court to the need to see whether there is a realistic as opposed to a fanciful prospect of success. It saves expense, achieves expedition, avoids the courts resources being used up in cases where that serves no purpose and is in the interest of justice.

33.	There is no room for speculative defences and potentially credible affidavit evidence must demonstrate a real likelihood that a defendant will succeed. Otherwise, no real prospect of success is shown and relief should be refused (Allen v Taylor) [1992] PLQR 255)

34.	The test was considered in detail in Swain v Hilman (2001) (1), All E.R. 91 and the court confirmed that;

“The test is the same as the test for summary judgment. The only significant difference is that in a summary judgment application the burden of proof rests on the claimant to show that the defendant has no real prospect of success whereas in an application to set aside a default judgment it is for the defendant to show that his defence has a real prospect of success.

H.	 DELAY:

35.	An application to set aside default judgment must be made “promptly” and without “delay”.

36.	In “Pankaj Bamolc and Another v Moran Ali” FCA 50/1999, a party seeking to set aside an Order had delayed for nearly 08 months. The Court took the view that no adequate explanation had been provided for that and concluded that the application should be refused because it had not been made promptly and without delay.

37.	Promptness will always be a factor of considerable significance and, if there has been a marked failure to make the application promptly, a court may well be justified in refusing relief, notwithstanding the possibility that the Defendant may well succeed at the trial.

38.	Whether or not there is a defence on the merits may be, the dominant feature to be considered, but that does not mean that it cannot be swamped by other features such as unexplained delay in bringing the application to set aside the judgment.

39.	Although, the fact that damages have been assessed and a final judgment entered does not deprive the court of jurisdiction to set aside a default judgment; it is highly relevant to the exercise of discretion. It is an aspect of, but separate from, the question of delay. The Saudi Eagle case (supra) is clear authority for the proposition that an application to set aside a default judgment can be made notwithstanding that final judgment has been entered.

40.	In Alpine Bulk Transport Co. Inc v Saudi Eagle Shipping Co. Inc  [1986] 2 Lloyd’s Rep the defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that they had given security, applied initially to the judge and then on appeal to the Court of Appeal, unsuccessfully at both hearings, to set aside the judgment and for leave to defend. The application was refused on the merits; but it was not suggested that the judge would not have had jurisdiction to set aside the judgment had it been appropriate to do so. Therefore, it cannot be said that a judgment (by default) for damages to be assessed is spent once damages are assessed; it remains the source of the plaintiff’s right to damages. Nor can it be said that in such a case the interlocutory judgment is overtaken or superseded by the final judgment for a liquidated sum; it would be more accurate to say that it is completed and made effective by the assessment.

41.	It cannot be safely assumed in every case that any prejudice to the plaintiff can be met by putting the defendant on terms to pay the costs thrown away by the assessment hearing. There can be no rigid rule either way; it depends on the facts of the particular case.

I.	PROCEDURE

42.	An application to set aside a default judgment, which has not been entered wrongly must be supported by evidence. Commonly, a draft defence is attached to the affidavit in support of the application. A draft defence is not necessary, what is required is the affidavit of merits. (The Fiji Sugar Corporation Ltd. v Mohammed Civil Appeal No. 28/87.)

43.	If the Defendant does not have an affidavit of merits, no setting aside order sought to be granted except for some very sufficient reason. (Wearsmart Textiles Ltd v General Machinery Hire Ltd, (1998) FJCA 26.)

44.	In Wearsmart Textiles Ltd v General Machinery Hire Ltd [1998] FJCA 26; Abu0030u.97s (29 May 1998) the Fiji Court of Appeal cited the following passage from the Supreme Court Practice 1997 (Volume 1) at p.143.

“Regular judgment – if the judgment is regular, then it is an 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.129, approving Hopton v. Robertson [1884] W.N. 77, reprinted 23 Q.B.D. p. 126 n.; and see Richardson v. Howell (1883) 8 T.L.R. 445; and Watt v Barnett [1878] UKLawRpKQB 21; (1878) 3 Q.B.D. 183, p.363).

“it is an (almost) inflexible rule that there must be an affidavit of merit i.e. and affidavit stating facts showing a defence on the merits (FARDEN v RICHTER [1889] UKLawRpKQB 79; (1989) 23 Q.B.D. 124)” The Supreme Court Practice 1993 Or 13 r.9 p.137).

“At any rate where such an application is not thus supported, it ought not to be granted except for some very sufficient reason” HUDDLESTON, B in FARDEN ibid p.129).

J.	SETTING ASIDE ON CONDITIONS

45.	In the exercise of Court’s discretion, the Court may attach conditions to an order to set aside judgment. In some cases, the defaulting defendant will be ordered to pay the claimant’s costs thrown away. In appropriate cases, the court may also require the defendant to pay money into court to await the final disposal of the claim. Such a condition is commonly imposed where;

1.	The defendant has satisfied the court that it has a defence with a real prospect of success.
2. 	The Defendant has an explanation why he neglected to appear after being served.
3. 	The truth of which is indeed denied by the Plaintiff.
4.	The court seeks no reason why the Defendant should be disbelieved in what appears to be a mere conflict on affidavits.

46.	The conditions imposed on setting aside a default judgment are not intended to punish the defendant, but to ensure that justice is achieved between the parties (VIJAY PRASAD v DAYA RAM CIV APP 61/90 FCA; SUBODH KUMAR MISHRA s/o Ramendra Mishra v CAR RENTALS (PACIFIC) LTD CIV APP 35/85 FCA). The said judgments do not lay down any basis upon which the discretion is to be exercised.

47.	In GARDNER v JAY (1885) 29 Ch.D 52 at p.58 BOWEN L.J. said on this aspect that:

“... when a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view to indicating the particular grooves in which the discretion should run, for if the Actor the Rules did not fetter the discretion of the Judge why should the Court do so?”

G.	SEQUENCE OF EVENTS:

48.	Before engaging in the analysis, it will be helpful if the sequence of events, that unfolded before the then Master and subsequently before judges, including me, are closely examined. This will eventually throw some light;  

1)	Plaintiffs filed the writ of summons and the Statement of Claim on 10th March 2010. (Through their then Solicitors Messrs. Suresh Maharaj & Associates).

2)	Messrs. Patel and Sharma, filed the Acknowledgment of service on 13th April 2010.

3)	They filed strike out application on 27th April 2010, which eventually was dismissed by the Ruling dated 19th February 2014.

4)	After a period of inaction for about 5 years, caused due to the death of Plaintiffs’ former Solicitor Mr. Suresh Maharaj, the Court issued notice under order 25 Rule 9, upon which Messrs A.K. Lawyers came on record for the plaintiffs on 29th June 2015.

5)	Notice of intention to proceed was file by the plaintiffs’ new solicitors on 29th June 2015 and again on 22nd August 2018.

6)	Messrs. Patel & Sharma, who remained as the defendant’s Solicitors even by 22nd August 2018, did not oppose this move by the Plaintiffs’ Solicitors.

7)	On 13th September 2018, defendant’s Solicitors sought time before the Master to get instruction from the defendant.

8)	On 1st October 2018, Mr. Rupesh Singh, informed the Master that they don’t have instructions from the defendant, and the matter was fixed for mention on 28th November 2018.

9)	A notice under Order 25 Rule 9 that had been sent was opposed by the Plaintiffs’ Affidavit in opposition filed on 06th September 2018.

10)	On 28th November 2018, after considering the Affidavits, the defendant was given time by the then acting master Azhar to file the statement of defence before 31st January 2019 and fixed the matter to be mentioned on 4th February 2019.

11)	On 4th February 2019, the Plaintiff was absent and unrepresented, however, the defendant was represented by Messrs. Patel & Sharma Lawyers. Order was made for the matter to take normal course.

12)	On 5th June 2019, plaintiff filed Summons for Judgment against the defendant under order !9 Rule (7) for default of defence.

13)	On 16th July 2019, a verbal application was made by the defence counsel to file an application for withdrawal and the matter was fixed to be mentioned on 30th July 2019.

14)	The formal Application seeking leave for withdrawal was filed by the Solicitors for the defendant on 25th July 2019 pursuant to Order 67 Rule 6 of the HCR 1988. The affidavit in support averred, inter alia, that there was no instruction from the defendant for last 5 years.

15)	On 8th August 2019, defendant’s Solicitors filed an application for the Summons seeking leave for withdrawal to be served on the defendant by substitute service through newspaper publication in Fiji.

16)	On 11th September 2019, the defendant’s Solicitors (Ms. Swamy) moved for time to trace the address of the defendant in New Zealand and the matter was fixed for 25th September 2019 on which date the time was extended further.

17)	On 14th October 2019, Hon. Nanayakkara -J, while granting further time to the defendant’s Solicitors, directed the matter to be called before the Master to enter judgment on uncontested matters.

18)	On 5th July 2019, an affidavit of service of the Summons for default judgment on the defendant’s Solicitors, was filed.

19)	On 15th October 2019, the acting Master granted time for the defendant’s Solicitors to file affidavit in opposition and fixed the matter to be mentioned on 21st October 2019.

20)	On 21st November 2019, the solicitors for the defendant sought time to serve the summons for withdrawal on the defendant and they were granted time till 20th January 2020, which was extended further and the matter was fixed for 27th February 2020.

21)	As defendant’s Solicitors failed to appear, the matter was fixed for 5th March 2020 by issuing notice on them.

22)	On 15th March 2020 orders were granted to publish the summons for withdrawal in newspapers both in Fiji and New Zealand and for the Summons to return on  1st May 2020. 

23)	On 1st May 2020, defendant’s Solicitors informed the court that they are arranging the service through a firm in New Zealand and the returnable date was fixed for 19th June 2020.

24)	By this date, the publication was done only in Fiji and on 29th June 2020 further time was granted to publish in New Zealand as well by fixing the returnable date for 24th September 2020.

25)	On 24th September 2020, further time was granted for publication, returnable on 9th October 2024.

26)	On 9th October 2024, the defendant’s Solicitors informed that the Summons for withdrawal was served by way of substitute service (via -. newspaper publication in Fiji). Accordingly, orders in terms of the summons filed on 25th July 2024 was granted.

27)	On 21st October 2020, Messrs Patel & Sharma, sealed and filed the order granting leave to withdraw.

28)	On 27th October 2020, matter being taken up before Hon.  Stuart-J , the hearing of the Originating Summons on the basis of default of defence was fixed for 6th November 2020. The hearing being adjourned on few occasions, was finally taken up on 7th April 2021 and the judgment thereof was delivered by him on 14th July 2021. (The impugned default Judgment)

29)	On 25th November 2021, Plaintiffs Solicitors filed the Notice of assessment of damages and on 14th December 2021 filed the ex-parte summons seeking leave to serve the interlocutory judgment entered on default, upon which the Mater on 15th December 2021 made order accordingly to serve the same on the Defendant returnable on 24th February 2022.

30)	The default judgment was sealed and filed on 21st January 2022. 

31)	On 28th January 2022, Plaintiff’s solicitors filed the amended Ex-parte Summons seeking leave to serve the Judgment and the notice of assessment of damages on the defendant by way of paper publication. Hon. Judge A.  Tui levuka on 7th February 2022 gave orders in terms.

32)	The affidavit in proof of publication thereof was filed by the plaintiff’s Solicitors on 16th February 2022 and on 17th May 2022 matter was mentioned before me for the first time, still in the absence of the defendant, upon which the assessment hearing was fixed for 28th July 2022. 

33)	The hearing on assessment of damages being taken up before me, the Ruling was delivered on 31st March 2023, which was to be sealed and served on the defendant as per my directions.

34)	On 10th May 2023, Plaintiffs’ Solicitors filed an Ex-parte summons seeking leave to serve the ruling on assessment of damages by way of paper publication. orders in terms were granted by me on 16th May 2023. 

35)	On 6th June 2023, an affidavit in proof of publication thereof was filed by the Plaintiff’s solicitors and the matter was fixed for 16th June 2023. 

36)	On 20th May 2024, the defendant’s Solicitors, Messrs. Patel & Sharma, filed the application in hand, after around one (1) year from the date of publication (ie on 1st June 2023) of the sealed orders on assessment of damages. In this Application, the defendant has moved to set aside the default judgment entered by A. Stuart-J on 21st July 2021 and my ruling on assessment of damages pronounced on 31st March 2023. (Notably, they did not file any new appointment as Solicitors for the defendant) 

H.	ANALYSIS:

49.	The defendant has made his application to set aside and stay of my predecessor’s substantive judgment dated 14th July 2021 and my ruling dated 31st March 2023 on the assessment of damages, pursuant to Order 19 Rule 9 and Order 14 Rule 11 of the High Court Rules 1988 and the inherent jurisdiction of this Court. I find that the High Court Rules 1988 is well -equipped to address the issues here. 

50.	The real issues here that the Court has to go into are; Whether the defendant was unaware of the proceedings held before the High Court, upon which the substantive judgment dated 14th July 2021 was entered, and about the proceedings held for the assessment of damages, which culminated in my Ruling dated 31st March 2023?   Has the defendant got meritorious defence? and can he be given the relief prayed for?

51.	Answering the above issues, will largely involve the surrounding facts, circumstances and merits of the defence.  However, priority has to be given to the following questions which beg answer through the careful scrutiny of the Order 67 of the High Court Rules 1988 and the related facts. Those questions are;  

a.	Whether there was a change of Barristers and Solicitors for the defendant, namely, Messrs Patel & Sharma, in terms of Order 67 Rule (1) of the HCR 1988?   

b.	Whether there was a removal of the Barristers and Solicitors for the defendant, namely Messrs. Patel & Sharma, in terms of Order 67 Rule 5 (1) of the High Court Rules 1988?

c.	Whether there was a withdrawal of Barristers and solicitors for the defendant, namely Messrs Patel and Sharma, in terms of Order 67 Rule (6) of the HCR 1988  

52.	As alluded to in paragraph 12 above, it is to be observed that the Order 67 of the HCR 1988 provides 3 instances for a Barrister and Solicitor to cease from acting for a party in an action. They are;

i.	A party to an action changes his/her Barrister and Solicitor without an order from court for that purpose, wherein such change comes into effect only when the party, who makes the changes or his / her new Barrister/ Solicitor who comes on record, files and gives notice and it is served under the rule. Unless, this process is duly followed, the former Barristers and Solicitors will remain so in record until the final conclusion of the cause or matter. This process is provided under Order 67 Rule 1 of the HCR. Since there was no any initiative or move by the defendant himself for the change of his Barristers and Solicitors, the Order 67 (1) will have no application in this matter.

ii.	The next instance is the Removal of a Barrister and Solicitor   from the record at the instance of another party, which is provided under Order 67 Rule 5 of the HCR. This also does comes into play here as the Plaintiffs did not make such a move or an application for the removal of Messrs. Patel and Sharma. 

iii.	The 3rd instance is the Withdrawal of the Barrister and Solicitor under Order 67 Rule 6 on their own volition with notice to their clients and to the other parties or their Barristers and Solicitors on record. This is the order and rule relied on by the defendant hereof. 

53.	It is the 3rd instance given above that needs to be considered as to whether it has been duly complied with by Messrs Patel and Sharma, in their purported attempt to withdraw as the Barristers and Solicitors for the defendant. Because, this is the only instance the Barristers and Solicitors make the move on their own volition due to reasons such as non-receipt of instruction and non-payment of professional fees etc.    

54.	Messrs Patel and Sharma, on 25th July 2019 filed their Application for, purported, withdrawal as Barristers and Solicitors for the defendant on the ground of non-receipt of instructions from the defendant, and this Application was, reportedly, served by way of newspaper publication carried out in Fiji, with leave being obtained from this Court.

55.	Leave had also been granted to Messrs. Patel and Sharma to serve the application for withdrawal in New Zealand too by way of Newspaper publication, but citing the Covid Pandemic that prevailed during the time material, no service was carried out by way of newspaper publication in New Zealand. The fact that the defendant resided in New Zealand from the year 2009, with few visits to Fiji in the year 2009 and 2010, is not in dispute. He is said to be still Resident  in New Zealand

56.	The propriety of the mode of service of the Application seeking for leave for withdrawal (ie. by way of paper publication in Fiji) is not disputed by the defendant’s Solicitors. Because it was on their own application. The Court relying on the averments in the affidavit of service and the proof of publication filed, on 09th October 2020 granted the leave for Messrs. Patel &   Sharma to withdraw as Barristers and Solicitors for the defendant.

57.	The most pertinent point to be noted here is that; with the obtaining of the leave to withdraw as Barristers and Solicitors, the withdrawal does not come to an end. It is a requirement, as per the Order 67 Rule 6 (a), (b) & (c), that the Order so obtained has to be served on all the parties (not being a party who failed to file the acknowledgment of service) and unless this service is duly carried out, the former Barristers and Solicitors will remain on record till the final conclusion of the matter.

58.	Careful perusal of the case record reveals that the Order granting leave for the withdrawal was not served on the defendant personally or by way of substituted service. I don’t find even an averment in the Affidavit to the effect that the Order so obtained for the withdrawal was duly served on the defendant by any mode of service that can be adopted.

59.	This lacuna appears to have escaped the attention of the Solicitors / Counsel for both the parties. There is no evidence whatsoever to prove that the order for withdrawal was served on the defendant.  Thus, in the absence of the service of the Order for withdrawal on the defendant, as imposed by the Order 67 Rule 6 of the HCR 1988, the inescapable conclusion that can be safely arrived at is that Messrs Patel and Sharma have remained as Barristers and Solicitors for the defendant during the time material and should have taken notice of all events before the Court on behalf of the defendant and acted accordingly.

60.	If they (ie. Messrs. Patel & Sharma) were not on record by reason of the purported withdrawal on 09th October 2020, they should have filed a new appointment when they made the current Application for setting aside and stay. Unfortunately, they did not do so. This amounts to a tacit admission on their part that they continued to be the Solicitors & Barristers for the defendant. 

61.	It seems to me clear beyond any question that there is a non-compliance of the Order 67 and Rules (6) in relation to the withdrawal of the defendant’s Barristers and Solicitors. I stand convinced that the Court would be acting contrary to its plainest duty, if it refuses to observe the Order 67 Rule (6) of the high Court Rules 1988, as far as the service of the Order for withdrawal is concerned.

62.	In the context of the present case, I cannot help but recall the rule of law enunciated in the following judicial decisions.

a.	In “Ventakamma v Ferrier – Watson” (CIV. APP. CBV0002/92), (Judgment delivered on 24th November, 1995) the Fiji Supreme Court held;

“We now stress, however, that the rules are there to be obeyed. In future, Practitioners must understand that they are on notice that non-compliance may well be fatal to an appeal.”
	
b.	In the decision of the Privy Council in Ratnam vs Cumarasamy and Another [1964] 3 All E.R. at page 935; Lord Guest in giving the opinion of the Board to the Head of Malaysia said, inter alia:

“The rules of court must, Prima facie, be obeyed, and, in order to justify a court in extending the time during which some step-in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation. The only material before the Court of Appeal was the Affidavit of the appellant. The grounds there stated were that he did not instruct his solicitor until a day before the record of appeal was due to be lodged, and that his reason for this delay was that he hoped for a compromise. Their lordships are satisfied that the Court of Appeal were entitled to take the view that this did not constitute material on which they could exercise their discretion in favour of the appellant. In these circumstances, their lordships find it impossible to say that the discretion of the Court of appeal was exercised on any wrong principle.”

63.	On the strength of the authority in the above judicial decisions, I wish to emphasise that the rules are there to be followed and non-compliance with those rules is fatal.

64.	Having said that, I venture to say beyond a per-adventure that the application in respect of setting aside the default judgment must fail for non-compliance with the Order 67 Rule 6(1) of the High Court Rules. As a result, I am constrained to hold that the Defendant’s Summons can go no further as it will not bring any relief to him. Accordingly, there is no alternate but to dismiss the Summons. I cannot see any other just way to finish the matter than to follow the law.

65.	In view of the approach I have adopted, I do not consider it necessary for me to delve into the merits of the application to set aside the substantive default judgment and the subsequent Ruling on the assessment of damages. It will be at best a matter of academic interest only or at worst an exercise in futility to discuss the merits of the Defendant’s arguments relation to the merits of his application.

66.	In the light of the above, no necessity would arise to consider the Application for stay. However, under these circumstances, in my view, ordering cost summarily assessed in a sum of $2,000.00 is warranted.

K.	FINAL ORDERS

1.	The Defendant’s Summons for Stay and Setting Aside fails.

2.	The Defendant’s Summons filed on 20th May 2024, for the Stay and to Set Aside the Judgment dated 14th July 2021 and the Ruling dated 31st March 2023, is hereby dismissed.

3.	The Defendant is ordered to pay costs of $ 2,000.00 (Two Thousand Fijian Dollars) unto the Plaintiffs, being the summarily assessed costs, within 28 days from the date of this Ruling.

A.M. Mohamed Mackie
Judge

At High Court Lautoka this 4th day of December 2025.

SOLICITORS:
For the Plaintiffs	Messrs. A.K.  Lawyers – Barristers & Solicitors 
For the Defendant	Messrs. PATEL & SHARMA - Barristers & Solicitors