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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Case Number 217 of 1999
JOHN NANKERVIS (TRADING AS CC STEVENSON – ARCHITECT)
AND PACIFIC PROJECTS ARCHITECTS LIMITED
V.
MARK ROOSENS AND DOROTHY ROOSENS
High Court of Solomon Islands
(Palmer C.J.)
Hearing: 29th October 2003
Judgement: 30th January 2004
A. Radclyffe for the Plaintiffs
G. Suri for the Defendants
Palmer CJ: The first Plaintiff, John Nankervis (“Nankervis”) is an architect by profession. He purchased CC Stevensons’ architecture business in or about November 1994 and traded under that name until the second Plaintiff, Pacific Projects Architects Limited (“PPAL”) was incorporated on 20th June 1997. Thereafter he traded under PPAL.
Nankervis’s claim is based on an agreement with the first and second Defendants (“the Defendants”) to provide professional services in connection with the design and construction of a house at Auki, Malaita Province for a fee of $59,250.00. He says the agreement was executed on or about 30th January 1997 and that he proceeded to perform his side of the bargain. He says he has provided the service but that only $4,369.96 had been paid by the Defendants. He comes to court for the balance of his professional fees plus 10% sales tax and interest.
The case of the Defendants
The Defendants admit instructing Nankervis to carry out certain professional services regarding the design and construction of a house at Auki. They admit having received a quotation for $59,250.00. They contend however, that the quotation was for the whole package from design to completion of construction of the building. They contend that only the first stage had been completed, that is planning and design of the house; the rest of the professional service attached to supervision etc. of the construction phase was never performed as the house was never constructed. Accordingly they say they are not liable for the full amount claimed.
Brief background facts
On or about 12th October 2001, Nankervis obtained an order from this Court imposing a Charge on registered land of the Defendants namely the fixed-term estate in Parcel No. 191-040-38 for the payment of the total claim. That charge remains in force to date.
Trial was fixed for hearing of this claim on 16th July 2001 with two days set aside for the hearing. Learned Counsel Mr. Nori for the Defendants appeared on the said date and advised Court that he had received instructions from the second Defendant not to defend the proceedings but could not confirm same regarding the first Defendant and accordingly sought leave to be excused from the hearing, which was approved.
Court heard the Plaintiffs case and granted judgement for the sum of $54,880.04 being the amount outstanding plus interest at 5%.
Application to enlarge time limit.
Order 38 rule 7 of the High Court (Civil Procedure) Rules, 1964 (“the Rules”) allows a party that did not appear at trial to apply to have a verdict or judgment obtained against him set aside upon such terms the court deems fit. Rule 7 however prescribes a time limit of twenty one days, within which such application ought to be made. That time limit unfortunately had been exceeded in this instance, hence this application by the first Defendant under Order 64 rule 5 for enlargement of time.
Reasons relied on
The reason given by the first Defendant for his failure to appear at trial on 16th July 2001 was due to lack of notice regarding trial date. He says (and this is conceded by Mr. Nori) he was not informed of the trial date. Although the second Defendant was made aware of the hearing date, she did not inform him of the hearing date. It is not disputed the Defendants were not in speaking terms with one another after their bitter marriage separation. It seems the first Defendant only became aware of the judgment sometime in October 2001.
Nothing however appears to have been done by the first Defendant until the following year (some 9 months later) in July 2002, when for the first time enquiries were made about the possibility of setting aside judgment. Learned Counsel Mr. Suri (now acting for him) was contacted on or about 5th August 2002, but it was not until one year later, that any application to have the judgement set aside would be made.
Submissions of the first Plaintiff
Learned Counsel Mr. Radclyffe for Nankervis objects the application on a number of grounds. First, that the delay in filing application to set aside judgment of the court was inexcusable. Learned Counsel submits that the Rules provide for a period of twenty one days only. Where delay is reasonable it is excusable and understandable but not in this instance. Secondly, Mr. Radclyffe submits that whilst the first Defendant’s Counsel has duty to contact him of the trial date that duty is not one sided; the first Defendant also had duty to check progress of his case with his lawyer. There was no evidence that he did anything. Thirdly, that by making payment in the sum of about $4,000-00 towards settlement of the judgment sum on or about 2nd October 2002 the first Defendant is estopped from denying the validity of the judgment. Fourthly, learned Counsel submits that his client would be prejudiced if judgment is set aside; memories fade and witnesses may be difficult to contact and thereby prejudicing his client’s case.
The law
The Court has power to enlarge the time limits prescribed by the Rules under Order 64 rule 5. The object of this rule is to avoid injustice to the parties (Schafer v. Blyth[1]; Saunders v. Pawley[2]). In cases where an irreparable mischief may be caused by an application to enlarge the time limit, the courts ought not to grant such application - per Bramwell L.J. in Atwood v. Chichester[3]. Excessive delay would qualify as a special circumstance and may induce a court in its discretion to refuse to extend the time – per Jessel M.R. Eaton v. Storer[4]. Even substantial delay without any explanation being offered could entitle the court in the exercise of its discretion to refuse extension of time – Revici v. Prentice Hall Inc.[5].
Application
Whilst this application on the face of it was for extension of time, it was in reality an application to set aside judgment under Order 38 rule 7. Before such an application can be validly entertained by this court, the time limit of twenty one days required first of all to be extended.
For such application to be entertained however, it is necessary to show by affidavit (called an affidavit of merits) that a prima facie defence to the action exists – see Kayuken Pacific Limited v. Harper[6]. The first Defendant is required to show that a triable issue exists. It would be pointless to grant extension of time where no prima facie defence is shown. In this instance I am satisfied on the evidence before me that a prima facie defence exists, in particular with reference to the question of quantum of the judgment sum. This court clearly has discretion in the circumstances to decide whether extension should be granted or not.
Lack of Notice of Hearing
The reason given by the first Defendant that he was not aware of the hearing date cannot be blamed solely on his lawyer. Part of the blame must be placed at his feet. He too has duty to keep in touch with his lawyer and to give reliable address whereby he can be contacted whether by phone, fax email or by post. Where he fails to provide his lawyer with a reliable address then blame cannot solely be placed on his lawyer. The information provided by Mr. Nori was that he did attempt on several occasions to contact him by phone but was unsuccessful. Whether he did try other means to get in touch with him is not clear.
Delay in launching proceedings to set aside judgment?
It cannot be denied that substantial delay has occurred in this case. Not only that, but no satisfactory explanation has been provided either. That obviously cannot help with any sympathy which he might get from this court regarding any possible extensions of time. It is incumbent upon the first Defendant that he demonstrates seriousness regarding his case and seeks assistance at the first available opportunity.
Will the other party be prejudiced if an extension of time is granted?
Though there has been substantial delay and basically neglect by the first Defendant in attending to his case, coupled with the part payment of $4,000.00 towards the judgement sum, I am not satisfied that injustice would be done to Nankervis if an enlargement of time is granted. In his submissions against enlargement of time, Mr. Radclyffe also relied on estoppel by conduct in terms of the part payment of $4,000.00 towards the judgement sum. The evidence adduced however reveals that the payment was not reflective of an acceptance of liability for the entire sum. It was an attempt at trying to get some settlement on the judgement sum and to avoid unnecessary legal costs should the application to set aside go to court and be unsuccessful. Once the first Defendant became fully apprised on his chances of success he instructed learned Counsel to take up his case before this court. It is my respectful view that justice stands to be gained by all the parties affected in this case by an order for enlargement and setting aside of the judgement of 16th July 2001. The issues pertaining to the matters in contention between the parties relate primarily to matters within their personal knowledge and therefore little prejudice should occur even if a trial should be ordered now. Further the claim of Nankervis basically relates to the question of quantum; whether the work done justified the awarding of the judgment sum. The first Defendant does not deny that the plans and design were done, what he disputes is the quantum claimed when it is evident no house had been constructed. This clearly raises a triable issue and which ought to be tried. In the circumstances, I am satisfied this is one of those cases in which the order sought for enlargement of time and for judgment to be set aside should be granted but on the following condition, that the first Defendant demonstrates his seriousness to pursue the matter by paying into Court the sum of $3,000.00 within 14 days herewith. If the said sum is paid, the time limit shall herewith be enlarged and judgement set aside. If however, the first Defendant fails to make payment of that deposit into court, the application stands dismissed and Nankervis may proceed to enforce the judgment sum against the Defendants. On the question of costs thus far in this action, this should be ordered against the first Defendant in any event, to be taxed if not agreed.
Orders of the Court:
The Court.
[1] [1920] 3 K.B. 143;
[2] [1884] UKLawRpKQB 3; (1885) 14 Q.B.D. 234, p. 237
[3] (1878) 3 Q.B.B 722, p. 723, C.A.
[4] [1882] UKLawRpCh 230; (1882) 22 Ch. D. 91, C. A., p. 92
[5] [1969] 1 W.L.R. 157; [1969] 1 All E.R. 772, C.A.
[6] (1987) S.I.L.R 54 at p. 58
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