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Jays Hydraulic and Industrial Supplies v Millenium Engineering Ltd [2012] FJMC 74; Civil Case 85.2010 (8 February 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Civil Case No 85/2010

BETWEEN

JAI'S HYDRAULIC & INDUSTRIAL SUPPLIES
Plaintiff

AND

MILLENIUM ENGINEERING LIMITED
Defendant

RULING

1. The Plaintiff instituted this action on the 25th June 2010 to claim $ 19 355.85 with interest and to claim for general damages from the Defendant for the loss suffered by the Plaintiff.
   
2. When the case was first mentioned on the 21st July 2010 neither the Plaintiff nor a Counsel for the Plaintiff appeared as per the journal entry. Further there had been no proof of service of the statement of claim. Up to date no affidavit of service is filed of record. However a Counsel had appeared for the Defendant and 21 days had been granted for the statement of defence.
   
3. Nevertheless on the 1st Of September 2010 when the case was called for the statement of defence, the Counsel who appeared for the Defendant had asked for further 14 days to file the same while the Plaintiff's Counsel has asked for a judgement by default.
   
4. Subsequently the Court has ordered as follows;
   

"21 days were given for Defence. No reason given for the delay. This is a liquidated claim. Judgement in default."

5. On the 20th December 2010 the Defendant filled a notice of motion seeking the judgment made on the 1st September 2010 to be set aside and the proceedings to be stayed until further orders.
   
6. Order 3 rule 11 of the Magistrate's Court Act reads as follows;
   

"Any judgment by default may be set aside by the court or a magistrate upon such terms as to costs or otherwise as the court or magistrate may think fit."

7. Firstly the Court has to consider whether the judgement so entered by default is irregular or not. It appears that the Plaintiff has asked for a $ 19 355.85 for the unpaid purchases of goods and services and for general damages for the loss suffered by the Plaintiff due the Defendants actions.
   
8. However the Court has given the judgement by default considering the claim as a liquidated claim. Further it was earlier noted that no affidavit of service is filed of record to prove proper service of statement of claim on the Defendant although a Counsel had appeared for the Defendant.
   
9. Secondly the Court has to consider the following aspects;
   
   1. Whether the Defendant made the application promptly without delay
   2. Reasons why the judgment was allowed to be entered by default
   100. Merits of the Defence
        
10. The judgement is entered on the 1st of September 2010 and the notice of motion to set aside the judgement is made on the 20th December 2010. It should be noted that the Defendant has not acted promptly as it has taken more than three months for the Defendant to make an application to set aside the default judgement.
    
11. It appears that the Court has granted time for the Defence on the first mention day even when there was no appearance for the Plaintiff. The second day when the Counsel for the Defendant asked for further time the Court has entered the judgement by default.
    
12. The Defendant has filed the proposed statement of defence and the Counter claim along with the notice of motion to set aside the default judgement. I am satisfied that the Defendant has shown that there is an arguable case.
    
13. Be that as it may, in any event I should state that the Defendant has not given any reason for the delay in coming back to Court to set aside the default judgement. It is the duty of the defendant to act promptly to resort to remedies. Further I must state that the reasons given for not filing the statement of defence also cannot be considered as a satisfactory explanation. The delay is explained as follows in the affidavit;
    

" That the reason for the delay is that we had to obtain further and proper instructions from our client who is the director of the company to prepare out statement of defence and who has been mostly unavailable and occupied due to the strict schedule required of her in her employment. Our client is employed as a mechanical tradeswoman at Air Pacific Limited at the Nadi International Airport working 5 days a week from 8am to 4.30pm."

14. It should be noted that this is indeed not a reasonable explanation for the delay. Further I am not very much convinced about the facts stated in the affidavit filed along with the notice of motion. In Para 7 it has been stated that the Defendant's Solicitor instructed Messrs Faiz Khan Lawyers to appear on behalf of the Defendant. But it appears from the journal entries of 01st September 2010 that Mr Faiz Khan had appeared for the Plaintiff and Mr N. Nand had appeared for the Defendant.
    
15. I am compelled to note that the Defendant has acted in a sluggish and irresponsible manner in this case. How ever for the reasons I have discussed above I am of the view that it would be prudent to set aside the default judgement in the interest of justice. Yet I have to impose cost on the Defendant for the delay and for not acting diligently. Accordingly I set aside the default judgment subject to 500 dollars cost. The cost has to be paid before the next date. If the cost is not paid the statement of defence will be struck out.
    
16. I order the Defendant to file the statement of defence and to effect service of the same within 21 days.
    

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

08.02.2012