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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 237 of 1995
ter">SIPEU CREDIT UNION LTD
-v-
BLUE SHIELD ELD (SOLOMONS) INSURANCE LTD
Before: Sam Awich : Commissioner
Hearing: 9 November 1995 - Judgment: 9 November 1995
Counsel: A. Radclyffe for Plaintiff; C. Ashley for the Defendant
strong>SAM AWICH, Commissioissioner:On 9.11.95 1 refused application of the defendant/respondent to have default judgment entered on 19.9.1995 set aside. I said I would file reasons later. I now state the reasons to be filed.
On 24.8.1995 the defendant, an insurance company was served with writ of summons dated 17.8.1995 filed at court on the same day and issued on 18.8.1995. The writ was a special one endorsed with particulars of claim demanding liquidated sum totalling $123,209.21, being shares of 2 quarterly profits due on a contract dated 19.7.1991. Under that contract, the defendant was to be paid the sum of $37.50 per member of the plaintiff per month. That sum was described as premium. In return the plaintiff was to share in quarterly profits in certain stated percentage. The first payment was due 22.7.1991. The plaintiff had 4,000 members and stated that it paid the premium tenuously, but the defendant failed to pay 2 quarterly shares of the profit totalling $123,209.21.
The default judgment entered on 11.9.1995 was regular. Service of writ of summons was regular and endorsed on the writ.The clerk who served it on 21.8.95 filed affidavit as required. Memorandum of appearance was filed in time on 24.8.1995. The solicitor acting was learn counsel Mr. Ashley practising in the firm of Motis Pacific Lawyers. Mr. Ashley left that firm shortly after. This case was not one of the cases transferred to him. The firm failed to file defence timeously delaying by 27 days by the time default judgment was entered on 19.9.95. These facts were deposed to in affidavit of Mr. Ashley filed on 5.10.1995 in support of this application. I found that the reason for defendant failing to file defence timeously was excusable. His application to set aside was filed on 5.10.1995 by Mr Ashley to whom the defendant had his case file transferred from Motis Pacific Lawyers. I found that there was no mudue delay to lodge the application, it being only 35 days after default judgment had been entered. I took into account the arrangement to transfer the case file to Mr Ashley.
I refused default judgment on the ground that there was no defence on the merit, and that the defendant did not even attempt in the affidavit, to show prejudice resulting to it if the court refused to exercise discretion to set aside the judgment. From the submission of learned counsel Ashley and the annexture to his affidavit, the defence was not a denial that the plaintiff paid the sum described as premium for the periods the plaintiff claims share of profit. It was simply that the two signations to the contract were not authorised although both were connected with the defendant, one as director and the other as employee. The second reason was that the two had personal motives; they intended to leave the company. I took the view that lack of authority in the circumstances was not a defence available to the defendant against an unknowing third party, the plaintiff. Following from that I held that the defendant failed to establish an arguable defence which ought to go to trial, such defence having reasonable prospects of success. Established common law rule requires standard of proof of the prospects to be higher than that required in apposition to summary judgment. In a Solomon Islands case of Kayuken Pacific Limited v Harper (1987) SILR54, Ward CJ stated that the requirement is a prima facie case. That would seem to be a standard lower than the one generally accepted in other common law cases. I would prefer the latter standard. In my view, however, it did not appear that the defendant has even established a prima facie case with prospects of success. I accordingly refused the application which I dismissed with costs to the plaintiff.
I apologise for the delay in filing the reasons for dismissing the application. The delay was occasion by unexpected workload that intervened.
Dated this 18th 18th day of March, 1996, at Honiara and filed the same day.
style="text-transform: uppercase">Sam Awich
Commissioner of the High Court
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