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Fuel Supplies Ltd v Country Cross Logging [2016] FJMC 25; Civil Case 173.2013 (2 March 2016)

IN THE RESIDENT MAGISTRATES COURT
AT LAUTOKA FIJI ISLANDS

CIVIL CASE NO: 173 OF 2013

FUEL SUPPLIES PACIFIC LIMITED
Plaintiff

V

COUNTRY CROSS LOGGING
Defendant

BEFORE : RESIDENT MAGISTRATE L.K.WICKRAMASEKARA
APPEARANCE : MESSRS NEEL SHIWAM LAWYERS FOR PLAINTIFF
MESSRS QORO LEGAL FOR DEFENDANT
DATE OF RULING : 15th SEPTEMBER 2015

RULING ON MOTION TO SET ASIDE THE DEFAULT JUDGMENT

1. This motion is filed on the 04th of September 2014 with supporting affidavit of Mohammed Salim Khan dated 02nd September 2014 for the default judgment entered against the Defendant on the 29th July 2014 to be set aside and to grant leave to defend the action unconditionally.
   
2. In response one 'Raveena Devi ', Operations Manager for the Plaintiff, had filed an affidavit in Opposition dated 10th December 2014.
   
3. In reply an affidavit in reply has been filed by Mohammed Salim Khan dated 13th March 2015. Further to which the Defendant had filed exhaustive written submissions as directed by court whereas the Plaintiff failed to comply and did not file any submissions.
   
4. In considering this application court has extensively considered the affidavits filed by each party along with the detailed written submissions for the Defendant.
   
5. In deliberating on this application it is to be noted that the Defendant had appeared in person initially in the case and on the date on which the default judgment was entered the Defendant had not been present in court nor had he filed any statement of defence.
   
6. When deciding an application for setting aside a ' Default Judgment ' the first issue to be deliberated is whether the judgment was entered regularly or irregularly. In either event setting aside is possible in Fiji. However, if the judgment was entered irregularly the Defendant shall have the judgment set aside as of a right and when it is regular then the court will have a wide discretion in setting it aside.
   
7. In considering the above issue, this court finds that this judgment was entered for a liquidated sum. The Defendant had been duly served with the writ of claim and in his presence on three occasions the court had granted time file his defense, from 12th March 2014 to 14th May 2014. The default judgment was later entered on the 29th of July 2014, in the absence of the Defendant whereas even at such date he had not filed a statement of defence. Thus in the above circumstances it is clear that this judgment has been entered regularly. (See Order-VI, Rule-8). The case of Singh v Fiji Sugar Corporation; HBA2.2009 (22 October 2014) shall not be relevant to the case at hand as that case has clearly been deliberated under Order –XXX, Rule-2.
   
8. The discretion this court has in setting aside a regular judgment is wide. However, this discretion has to be exercised judiciously. The law on setting aside a regular judgment is well settled with many appellate court decisions. In the case of Nand v Chand; HBC 223.2007 L (7 November 2008) the legal position on setting aside a regularly entered default judgment has been considered at length having reference to number of appellate court decisions. As per these authorities the rational behind exercising this discretion is to avoid any injustice which may be caused if the judgment follows automatically on default.
   

Thus having careful consideration of the legal authorities the court finds following issues to be addressed in considering an application for setting aside a default judgment entered regularly;

1. Whether the Defendant has a meritorious defense, which could be simplified to mean that the Defendant should have a defense which discloses an arguable or triable issue.
   
2. Explanation as to why the Defendant let the judgment to be entered by default.
   
3. Whether Plaintiff would suffer irreparable harm if the judgment is set aside.
   

9. In considering the 1st issue of a meritorious defense; it is the contention of the Defendant, that as this claim is disputed on the basis that the Defendant has made part payments to Plaintiff and as such the claim ought to be quite less than what the Plaintiff has sought.
   
10. Plaintiff in his affidavit in opposition at averment 06 has admitted that the Defendant had paid some monies but claims that the outstanding is the sum claimed. It is thus appears that this is a matter for deliberation by court upon hearing evidence.
11. In respect of the question of explanation for the allowing of the judgment to be entered by default against the Defendant, it is the position of the Defendant that he had had been expecting the Eid holidays to fall on the court date and as it was an important religious event had contacted the Court Registry and was advised by a clerk that he may not have to come to court on that day but can later get the date from the Registry. However the Eid holiday had been on a date prior to the court date but as the Defendant was of the belief that he does not have to come to court on this day he did not attend court. As fascinating as it may sound this explanation in court's view falls far behind a logical and acceptable explanation for absence of the Defendant on the court date.
    
12. On the question of irreparable harm caused to the Plaintiff if this judgment is set aside; I do not find any material to hold as such. The Defendant seems to have filed this application within a reasonable time. He has since engaged counsel to defend and make this application from court to set aside the default judgment. Any prejudice caused to the Plaintiff can be justly compensated by way of costs.
    
13. Accordingly in the final outcome, court finds that it is justified to exercise the courts discretion in setting aside the default judgment in favor of the Defendant. The setting aside of this default judgment shall however be done conditionally and with an award of costs to the Plaintiff.
    
14. Accordingly, court makes the following orders;
    
    1. The default judgment entered against the Defendant on the 29th of July 2014 is hereby set aside, subject to cost.
    2. Defendant to pay a cost of $ 2000.00 to the Plaintiff as summarily assessed by court within 14 days from this order.
    3. Defendant given 14 days from the date of this order to file and serve his defense having complied with the above order for cost.
    4. In failure to comply with orders (ii) and (iii) above, order number (i) shall lapse at the expiration of 14 days and the default judgment dated 29th of July 2014 shall resume with full effect and shall be executed accordingly.
       

Right to appeal explained.

L.K.WICKRAMASEKARA,
2016/03/02
RESIDENT MAGISTRATE.