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SCA Hygiene Australasia Ltd v Prasad [2010] FJMC 93; Civil Case 86 of 2009 (16 July 2010)

In The First Class Magistrates Court
At Nausori
Fiji Islands

Civil Case No: 86 of 2009

SCA Hygiene Australasia Limited
Plaintiff

And

Vijay Prasad
Defendant

Before: C. Lakshman
Resident Magistrate

For Plaintiff: Mr.V Prasad. (Howards)
Defendant: Ms. N. Raikaci (Ravono & Raikaci)

Ruling

Application

On 30th June 2010, the Defendants through its Solicitors filed a Notice of Motion seeking to set aside the Order (judgment by Default) of this Court entered on 2nd February 2010.

Brief History of Action

The Plaintiff filed a writ of summons in Court on 4th November 2009. The Writ was served on the Defendant on 10th November 2009 and Affidavit of Service was initially filed on 16th November 2009 in the Suva Civil Registry. On 8th December 2009 The Plaintiff Counsel sought to file the affidavit of service in the Nausori Registry which was duly filed on 8th December 2009. The Plaintiff was represented by counsel and there was no appearance of the Defendant on 8th December 2009. The matter was adjourned for 5th January 2010. On 5th January 2010, the Defendant was present and sought 21 days to file Statement of Defence. The matter was adjourned for 2nd February 2010. On 2nd February 2010 the Defendant was not present and the Plaintiff’s Counsel sought judgment by default and was granted judgment by default by the Court for a sum of $16.500.040 and $4804.30 (Interest) and cost $400.00.

On 10th March 2010 Nacolawa & Daveta filed a notice of motion to set aside the default judgment. It was set for 26th April 2010. There was no appearance of the Defendant or his Counsel. The Court struck out the application.

On 30th June 2010 Ravono & Raikaci Law filed Notice of Motion and Affidavit in Support seeking to set aside the default judgment of 2nd February 2010 against the Defendant. They also sought that the Writ be struck out, all chattels seized from the defendant by the Court on 24th June 2010 be returned to the Defendant and costs.

The Law

In Wearsmart Textiles Ltd v. General Machinery Hire Ltd [1998] FJHC 26; Abu0030u.97s (29 May 1998) the Fiji Court of Appeal has addressed the question of setting aside judgment. The Fiji Court of Appeal in Wearsmart stated that 'The general principles upon which a Court should act on an application to set aside a judgment that has been regularly entered, are set out in the White Book, i.e. The Supreme Court Practice 1997 (Volume 1) at p.143. They are as follows:

"Regular judgment – if the judgment is regular, then it is an (almost) 13/9/5 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).

For the purpose of setting aside a default judgment, the defendant must show that he has a meritorious defence. For the meaning of this expression see Alpine Bulk Transport Co. Inc. v. Saudi Eagle Shipping Co. Inc., The Saudi Eagle (1986) 2 Lloyd's Rep. 221, C.A., and note 13/9/14. "Discretionary powers of the Court," below.

On the application to set aside a default judgment the major consideration is whether the defendant has disclosed a defence on the merits, and this transcends any reasons given by him for the delay in making the application even if the explanation given by him is false (Vann v. Auford (1986) 83 L.S. Gaz. 1725; The Times, April 23, 1986, C.A.) The fact that he has told lies in seeking to explain the delay, however, may affect his credibility, and may therefore be relevant to the credibility of his defence and the way in which the Court should exercise its direction."

A defendant applying to set aside a default judgment must satisfy the following in order to succeed:

a. a meritorious defence which has a real prospect of success and carry some degree of conviction. It must have a realistic as opposed to a fanciful prospect of success. A supporting affidavit disclosing the condescending particulars of a meritorious defence is mandatory: Wearsmart Textile Limited v General Machinery Hire Limited and Anor Civil Appeal No. ABU 0030/1997.

b. some explanation as to why the default judgment was allowed: Evans and Bartlam [1937 2 All ER 646.

(i) some explanation for the delay in making an application to set aside: Pankanj Bamola & Anor v Moran Ali Court of Appeal Civil Appeal No. 50/90.

(ii) that the Plaintiff will not be prejudiced that may be caused to the Plaintiff as a consequence of setting aside the default judgment Shiri Dutt v FNPF [1988] 34 FLR67.

Application of the Law and the Parties Submission

The Counsels have made written submission which the Court has considered.

The Court has perused the case authority of Govind Holdings Limited v. Kalia Nand, Civil Appeal No. HBA 0015 of 1998L where Justice Madraiwiwi states – "in the courts respectful opinion the Magistrates Court was perfectly entitled to consider the issue of jurisdiction at the time of the respondent's application to set aside the default judgment was before it...". Justice Madraiwiwi quotes Lord Atkin in Evans v. Bartlam (1937) 2 All ER 646 at 650 and then states "it was open to the Magistrate's Court to determine the issue of jurisdiction where no determination had been made on the merits of the claim before it."

This Court notes that the Plaintiff has not formulated its claim (given the nature of interest) within the monetary limits set by law (Note and See Para (b) of the Statement of Claim.) however, the order (judgement by default) that was sealed was within the monetary limit of the Magistrates Court. The statement of claim was not in conformity with the judgment by default granted by this Court. No determination has been made on the merits of the claim before this Court.

For these reasons the Court sets aside the judgement by default.

THE ORDERS

1. The judgment by default entered on 2nd February 2010 is set aside.
2. All chattels seized from the Defendant by the Court Bailiff on 24th June 2010 is to be released to him immediately.
3. No order as to costs
   

Chaitanya Lakshman
Resident Magistrate

16/07/10