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Mackenzie Trading Ltd (MTL) v Transam (Tuvalu) Ltd [2022] TVHC 2; Civil Case 6 of 2021 (8 February 2022)

IN THE HIGH COURT OF TUVALU 2022

CIVIL CASE NO.16/21

BETWEEN

MACKENZIE TRADING LIMITED (MTL)
PLAINTIFF

AND

TRANSAM (TUVALU) LTD, as the
Agent for NEPTUNE PACIFIC DIRECT LTD
FIRST DEFENDANT

DIRECTOR OF MARINE AND PORT SERVICES
SECOND DEFENDANT

ATTORNEY GENERAL
THIRD DEFENDANT

Before Hon Judge Sir John Muria

Hearing 8^th February 2022

Mr Taukelina Finikaso for Plaintiff
Ms Chrisanthy Baniani for First Defendant
Mr Grant Drecala for Second and Third Defendant

J U D G E M E N T

Muria J: The plaintiff is seeking to enter judgment in default against the First, Second and Third defendant in this case. The Second and Third defendant opposed the application. The First defendant does not oppose the application but has sought time to discuss settlement and/or pursue the “Without Prejudice” offer which it had made earlier to the plaintiff.

BRIEF BACKGROUND

2. A Writ of Summons was issued on 30^th September 2021 by the plaintiff claiming against the defendants the sum of $116, 405.87 being for the value of the frozen poultry shipped in a Reefer/Container and which were damaged. The container of the frozen poultry was shipped on board the Vessel Capt. Quiros on 2^nd February 2021. Upon arrival at Funafuti, the Reefer/Container of the Frozen poultry was offloaded and kept at the Government’s main Wharf Depot for 5 days for quarantine purpose.
   
3. After the 5 days quarantine period was over, the First defendant under whose name the Reefer/Container was consigned, discovered that the contents of the Reefer/container of frozen poultry belonging to the plaintiff were all damaged. The course of the damage was due to the Reefer/Container not plugged onto an electric power source throughout the 5 days quarantine period. The Reefer/container containing the frozen poultry was also sitting on the Wharf Depot under the hot sun for the 5 days quarantine period.
   
4. The plaintiff was not aware that the Reefer/Container was consigned the First defendant. The plaintiff only became aware of it when the First defendant informed the plaintiff of the damaged to the frozen poultry.
   
5. The contents of the Reefer/Container including the plaintiff’s frozen poultry were declared unfit for human consumption by the Health Authorities and they had to be disposed of.
   

Writ issued

6. Following attempts to resolve the matter, the plaintiff issued a Writ out of the High Court on 30^th September 2021 against the three defendants named in the Writ of Summons. It is not clear in the Writ of Summons on what basis the third defendant is sued. It would appear that the first defendant and second defendants are sued on the basis that the Reefer/Container was under their supervision and control when goods were damaged.
   
7. On 12^th October 2021, Tavita Falefaea, served all three defendants with the Writ of Summons. An affidavit evidencing service was sworn to on 1^st November 2021 by Tavita Falefaea who is also the Operation Manager of the Plaintiff.
   
8. On 21^st October 2021, the then Counsel for the Second and Third defendant filed an Entry of Appearance for the two defendants. Although the Memorandum of Appearance refers to appearance for the Third defendant, Counsel did sign the Memorandum as Counsel for both the Second and Third defendants. The Court accepts that as Counsel acted for both defendants, and the Memorandum of Appearance signed and filed on 21^st October 2021 was for both the Second and the Third defendants.
   
9. I find that the Memorandum of Appearance filed by Counsel Losafou Ampelosa on behalf of the Second and Third defendant was filed within time.
   
10. The First defendant entered an Appearance by Counsel on 17^th December 2021. That Appearance was clearly out of time.
    
11. On 1^st November 2021 the then Counsel for the Second and Third defendant filed Defence on behalf of the Second and Third defendants. The case heading on the Defence document is not quite in order, including the First defendant’s name is missing. The Court, however, accepts that a Defence was filed on behalf of the Second and Third defendants on 1^st November 2021.
    
12. I find that the Defence filed on behalf of the Second and Third defendants on 1^st November 2021 was filed within time.
    
13. Even if I am wrong to hold that the Defence file by Counsel for the Second and Third defendants was only for the Third defendant, Order 29 Rule 14 would preclude the plaintiff from entering judgment in default against the Second defendant unless leave of the Court is obtained.

14. Order 29, Rule 14 of the High Court (Civil Procedure) Rules 1964 states as follows:
    

“14 In proceedings against the Crown no judgment for the plaintiff shall be entered in default of pleading without the leave of the Court, and any application for such leave shall be made by notice of motion or summons served not less than seven days before the return day.”

No leave of the Court has been sought in this case to enter judgment in default the Second defendant that is a Government Department.

15. Order 30 rule 12, permits amendment of any defect or error in any proceedings. I allow Counsel for the Second and Third defendants to amend their Statement of Defence filed on 1^st November 2021 by properly naming the parties in the case not the case heading on the Defence document.
    
16. As of todays date, no defence has been filed by the First defendant. There is also no dispute that the Memorandum of Appearance filed on behalf of the First defendant on 17^th December 2021 was out of time. There is also no argument before the Court on the part of the First defendant that the Plaintiff is not entitled to enter judgment in default against it.
    
17. The First defendant’s position is thus clear. It accepts that it had entered Appearance late and has not filed any Defence at all to the Plaintiffs claim. It is in default and the Plaintiff is entitled to enter judgment in default against it (First Defendant).
    

Conclusion and Order

18. On the evidence before the Court, I come to the conclusion that the Plaintiff is entitled to enter judgment in default against the First Defendant. The evidence also shows that the Plaintiff is not entitled to enter judgement in default against the Second and Third Defendants since they have not been in default as alleged against them.
    
19. Accordingly, I make the following orders:
    
    1. Judgment in default of defence is hereby entered against the First Defendant.
       
    2. There will be no judgment in default to be entered against the Second and Third defendants.
       
    3. The case between the plaintiff and the Second and Third defendants to proceed in the usual manner.
       
    4. The application by Second and Third Defendants for striking out the Plaintiff’s claim against them is now listed for 16^th March 2022. The Second and Third Defendants to file affidavit in support of the application and served on the Plaintiff within 7 days.
       

Dated on the 8^th day of February 2022

Sir John Muria
Judge