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Chandra v Emberson [2012] FJMC 26; Action 97.2010 (28 February 2012)

IN THE MAGISTRATE COURTS COURT OF FIJI
WESTERN DIVISION AT NADI

Action No. 97 of 2010

BETWEEN:

SHANEEL CHANDRA of Votualevu, Nadi
PLAINTIFF

AND:

EDWARD EMBERSON of Nasau, Nadi
1st DEFENDANT

AND:

EDWARD WILSON of Nasau, Nadi
2nd DEFENDANT

RULING [on setting aside]

1. This is an application by the Defendants to set aside a judgment made in default of their appearance.

2. The Plaintiff instituted this action for claims being the damage caused to the Plaintiff's vehicle as a result of an accident occurred due to the negligent, careless and/or reckless driving of the 1st Defendant on or about 20 day of March 2010.

3. The Statement of Claim was filed on 06 June 2010 and served on the Plaintiff and the summons was returnable on 30 June 2010 to answer the suit by the Plaintiff. On 30 June 2010 the Defendants did not appear by themselves. Nor counsel appeared for them.

4. After several adjournments, on 20 October 2010 the Plaintiff obtained a default judgment upon formally proven his case. This default judgment was sealed on 8 November 2010.

5. On 18 January 2011 the Defendants filed and served a Notice of Motion and affidavit in support of the Motion together with Annexure EE1-EE3 and sought orders to set aside the default judgment and stay of its execution upon the grounds contained in the affidavit filed in support of this application.

6. Mr. Edward Emberson the within named 1st Defendant deposed an affidavit in support of the application and says that "Edward Emberson" (1st Defendant) and "Edward Wilson" (2nd Defendant) is one and the same person.

7. The Defendant in paragraph 3 of the affidavit in support admits that sometimes last year about June 2010 he was served a claim by the plaintiff. The Defendant in his affidavit in support further states that he had no knowledge of any other development of the claim or action on this matter until the Plaintiff's bailiff and sheriff of the Court came to his home in December 2010, a week or so before Christmas with a writ of possession dated 13th December 2010, to come and repossess his vehicle and other chattels (EE1).

8. On the other hand the Plaintiff in paragraph 4 of the affidavit in reply states that the Statement of Claim which was served to the 1st Defendant in June 2010 clearly stated that the 1st Defendant was to appear before the Court on 30th June 2010.

9. Both parties opted and invited to file written submissions on the issue of setting aside. Only the Defendant filed written submissions accordingly. The Plaintiff did not file any written submissions.

THE LAW ON SETTING ASIDE DEFAULT JUDGMENTS

10. It is the trite law that in setting aside applications, the Court has discretion. Scutt J canvassed the issue in much detail in Nand v Chand [2008] FJHC 310; HBC223.2007L (7 November 2008).

11. The basic principles applicable to setting aside judgments in the exercise of [a] Court's discretion are set out in Halsbury's Laws of England Vol 37, inter alia, thus:

In the case of a regular judgment, it is an almost inflexible rule that the application must be supported by an affidavit of merits stating the facts showing that the defendant has a defence on the merits ... For this purpose it is enough to show that there is an arguable case or a triable issue.

12. The discretion is prescribed in wide terms limited only by the justice of the case and although various "rules" or "tests" have been formulated as prudent considerations in the determination of the justice of a case, none [has] been or can be elevated to the status of a rule of law or condition precedent to the exercise of the Court's unfettered discretion.

1. Delay and in this respect reasonable time means a time reasonable in all the circumstances see: Monkland v Jack Barclay Ltd;
   
2. Defence in the merits In Shocked v Goldschmidt 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"
   
3. Prejudice to the parties.
   

13. Without fettering this discretion, the court has laid down a guiding criteria or test for exercising the discretion judicially. However, the overriding:-

"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 procedures" Evans V Bartlam [1937] A.C. 473 at 480 per Lord Atkin.

14. Order 30 Rule 5 of the Magistrates Court Rule provides as follows:

"Any judgment obtained against any party in the absence of such party may, on sufficient cause shown, be set aside by the court upon such terms as may seem fit".

DETERMINATION

15. The impugned default judgment has been obtained after formally proved the Plaintiff's claim. The defendant did not complain that the default judgment was obtained irregularly. Hence court has discretion whether or not to allow this setting aside application.

16. The application for setting aside must be supported by an affidavit of merits stating the facts showing that the defendant has a defence on the merits.

17. The defendant in the affidavit in support of his application merely states that he was not given a fair chance to defend himself and further he also believes that the Plaintiff is not coming into the court with clean hands.

18. The Defendant admitted that he was served with summons somewhere in June 2010. By the Writ of Summons he was ordered to attend the court on 30th June 2010 then and there to answer a suit by the Plaintiff against him.

19. The defendant did not bother to appear in court or instruct a counsel to appear on his behalf on 30th June 2010, being the summons returnable date. No Notice of Intention to Defend and Statement of Defence was filed. Therefore the matter was formally proved on 20.10.2011 after some adjournments.

20. The affidavit filed by the Defendant in support does not disclose any defence on merits. In the affidavit the Defendant merely complains that he was not informed or given the opportunity to defend himself in view of the Plaintiff's claim [paragraph 11 of the Affidavit in Support]. I must say that there is no legal requirement to inform the Defendant about the development of the matter after the summons was served. The Defendant was well aware of the first call date being 30th June 2010 because he admits service of summons.

21. Is there a proposed Statement of Defence filed along with the application? Not really. There is no proposed Statement of Defence annexed by the Defendant. 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.

23. The Defendant does not offer any explanation as to why he defaulted to appear in court on 30th June 2010 being the summons returnable date. Therefore the Defendant has failed to show sufficient cause as contemplated in Order 30 Rule 5 of the Magistrates Court Rule to set aside the default judgment entered on the 20th October 2010.
    
24. For the foregoing reasons, I am not satisfied with the affidavit filed along with the application to set aside the default judgment.
    
25. Accordingly I proceed to dismiss the Defendant's application made to set aside the default judgment entered on the 30th October 2010 with the cost which is summarily assessed at $150.00.
    

Orders:

26. The application to set aside the default judgment entered on 20. 10. 2010 is dismissed with the cost of $150.00 which is summarily assessed.
    

M H Mohamed Ajmeer
Resident Magistrate

Dated at Nadi this 28th day of February 2012
Messrs Patel & Sharma for the plaintiff
Messrs Marawai Law for the defendant