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Noble Brothers Entherprises Ltd v Kaumae [2015] SBHC 8; HCSI-CC 423 of 2013 (30 March 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J)

CIVIL CASE NO. 423 OF 2013

BETWEEN:

NOBLE BROTHERS ENTERPRISES LTD.
Claimant

AND:

ISLANDERS NO.1 BUILDING CONSTRUCTION & PLUMBING SERVICES
Second Claimant

AND:

DAVID KAUMAE
First Defendant

AND:

BANK SOUTH PACIFIC
Second Defendant

Date of Hearing: 18th March 2015
Date of Ruling: 30th March 2015

Mr J Keniapisia for the 1st and 2nd Claimants
Mr A Hou for the 1st Defendant
Mr A Radclyffe for 2nd Defendant (excused, party not affected by the application).

RULING ON APPLICATION TO SET ASIDE

Faukona J: This application was filed on 18th July 2014; was done so on the basis of Rules 1.16, 1.17 (e) and (f) and 1.18. The application seeks to set aside the Court Order perfected on 6th June 2014, striking out the first Defendant's defence, and that the first Defendant's defence be reinstated.

2. Indeed the first Defendant had defaulted and failed to file and serve list of documents by sworn statements and therefore the Unless Order was reinforced on 30th May 2014, and consequently struck out the first Defendant's defence accordingly.

3. The Counsel for the first Defendant relies on the excuses and explanations given by the first Defendant in his sworn statement filed on 18th July 2014. I have read paragraphs 21 - 27 of the first Defendant's sworn statement. I could draw from those paragraphs that the first Defendant did not sit on the Orders, nor deliberately defy them but attempted to comply, at least do so and filed the sworn statement with the list of documents on 29th May 2014, a day before deadline. The problem he had was service of the sworn statement. He blamed his lawyers for not advising him to serve the documents. When he learned of what ought to have been done, he served a copy of the sworn statement on 6th June 2014 upon the Claimant's Counsel through post office and also delivered the same to an officer of the Counsel at NPF Plaza.

4. It seems the Counsel and the first Defendant is blaming former Counsel for their irresponsible failure to advice the first Defendant to serve the filed documents. In answering to Court questions in regards to good practice about filing and servicing of documents, Mr Keniapisia explains that filing and service should be done by Counsels. Service normally is done by clerks of a law firm who will ensure the recipient of the documents signed the delivery book. I accept that as a good practice.

5. Rather than blaming former Counsel, I think the first Defendant is also responsible for non-compliance and delay. After filing of documents, why should he continue to keep the documents in his possession? He should have proceeded to his Counsel's office and deliver the filed documents. The Counsel would in turn advice as to service. Nothing was done until he knew his defence was struck out before he attempted to effect service. Already it was seven day's late.

6. On 22nd May 2014 when the Unless Order was made, the first Defendant was represented by Mr Fakarii from Rano and Company Law Firm. Mr Fakarii submitted that he did not receive any instructions from Mr D Lidimani and sought adjournment. At the end of the day, the Unless Order was made in the presence of the first Defendant's legal representative. The order was not made ex parte nor was it made in the absence of the first Defendant or his Counsel. Therefore, I could able to conclude that both the first Defendant and his former Counsel are responsible for not serving the sworn statement consisting the list of documents to the Claimants and the Second Defendant.

7. I noted Rule 1.5, which states "the Court must give effect to the overriding objective when doing an act or interpreting the Rules. The overriding objective of the rules was expounded in Rule 1.3 is to enable the Courts to deal with the cases justly and with minimum delay and expenses." Rule 1.8 states "the parties and their representatives must help the Court in accordance with the overriding objecting and must avoid undue delay and expenses."

8. The first direction Orders were made on 8th April 2014 and Order 1 stated that discovery of list of documents by sworn statement to be filed and served on 10th April 2014. There was nothing done by the first Defendant until the Unless Order was made on 23rd May 2014. Not until 6th June 2014, the first Defendant attempted to fully complied with the Unless Order but by then it was seven (7) day's late. By 18th July 2014, this application was filed. From 8th April 2014 to 6th June 2014, was two months, the period the first Defendant failed to fully comply with the Order.

9. I noted as well the sworn statement disclosing the list of documents filed by the first Defendant contains two and half pages with six paragraphs and eight sentences. In normal practice, two and half pages, as in this case, should take half an hour to draft, yet it took the first Defendant's Counsel two months. This is inordinate delay which is absolutely contrary to the objective of the rules and which the first Defendant must carry the consequences. I have stated earlier the failure is by both the first Defendant and his former solicitors. I must therefore dismiss the application.

Orders:

1. Dismiss the application by the first Defendant to set aside orders by this Court made on 6th June 2014.
   
2. Consequent to Order 1, the Court is hereby refused to reinstate the first Defendant's defence.
   
3. Cost of this application be paid by the first Defendant to the Claimants.
   

THE COURT