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Growing Tall Ltd v Biofilta Pty Ltd [2022] TVHC 8; Civil Case 6 of 2020 (22 February 2022)

IN THE HIGH COURT OF TUVALU 2022


CIVIL CASE NO.6/20


BETWEEN


GROWING TALL LTD
PLAINTIFF


AND


BIOFILTA PTY LTD
DEFENDANT


Before Hon Judge Sir John Muria


Hearing 22nd February 2022


Ms F. T Nelu for Plaintiff
Mr B. Nia for Defendant


J U D G E M E N T


Muria J : This case demonstrates the all-to-often disputes that can arise when legal practitioners do not or are slack in complying with the rules of court in civil litigation. The case also highlights the need to clarify the rules on judgement in default.


  1. The Plaintiff in this case applies by Notice of Motion on 7th January 2021 for default Judgement against the Defendant for failing to enter appearance and failing of file defence within the times allowed by the rules.

Brief Background


  1. On 26th June 2020, the Plaintiff issued out of the High Court a Writ of Summons and Statement of Claim against the Defendant, claiming damages for breach of contract. The Writ was served on the Defendant on 9th September 2020 by email. (I will return to the issue of service on the Defendant in this case shortly). It is accepted, however, that service of the Writ on Defendant was made on 9th September 2020.
  2. The Defendant did not file an appearance and defence to the Plaintiffs claim and so on 7th January 2021, the Plaintiff filed an application for Judgement in default against the Defendant pursuant to Order 9 Rule 8 of the High Court (Civil Procedure) Rules 1964. The application is supported by the affidavit of Andrew John Fakaua Ponton filed on 2nd January 2021 confirming service of the Writ of Summons on the Defendant by Counsel for the Plaintiff.
  3. Despite the filing of the Plaintiffs application in January 2021, the application had not been set down for hearing. In the meantime, the Defendant entered an appearance and filed a defence on 9th February 2021. It was on 17th December 2021, that the application was listed for hearing before the Court.

Issues Arising


  1. There are a number of issues that need to be considered. The first issue is whether there is proper service of the Writ of Summons on the Defendant; the second is whether the Defendant is in default of pleading; thirdly, whether default judgement should be ordered in favour of the Plaintiff; and fourthly, what is the extent of the Court’s power in cases of default if pleadings. I consider the issues in turn.

Service of the Writ on the Defendant


  1. The Affidavit of John Fakaua Ponton is that the Writ of Summons and Statement of claim were served on the Defendant by email on 9th September 2020. In as much as parties to a litigation in Tuvalu may wish to jump onto the bandwagon of digital revolution, the one area that litigants in Tuvalu still stuck in the ages of the 1960’s is in the rules of service of Court documents commencing actions in the High Court Service of a Writ of Summons or Court documents commencing an action by email is not within the remit of Order 9 Rule 2 of the High Court (Civil Procedure) Rules 1964 as this Court held in Telaaka and Teponga –v- Kaupule of Niutao (4/2/22) High Court Civil Case No.4/2021
  2. Order 9 Rule 2 requires personal service on the person to be served. If personal service is not practicable, then the party seeking to serve the documents must apply to the Court for “substituted or other service.” That entails seeking order for services such as by pre-paid registered post to the person to be served or to the Head Office of the person to be served. The rule also permits the Court to order service by “advertisement or otherwise”, which, in my view, includes oral publication by radio broadcasting. Clearly service by electronic means is not envisaged under Order 9 Rule 2. I would suggest a simple amendment to the Rules to include service by “fax or other electronic means” would help solve the problem or better still to specifically permit “service be email” of documents commencing proceedings in Court. Until that is done, I am afraid, Service of Writ of Summons or other documents commencing proceedings in Court must be by personal service.
  3. The service of the Writ of Summons with the Statement of claims on the Defendants by email on 9th September 2020 was ineffective. This is the same as saying that no service was done on the Defendant on 9th September 2020.
  4. The issue concerning service does not end there for the Defendant. Even if service on the Defendant on 9th September 2020 was ineffective and as such, no service was ever done on the Defendant, there is now on the record that the Counsel for the Defendant entered an Appearance for the defendant on the 9th February 2021. The effect of that appearance is that since the Writ of Summons has effectively not been served on the Defendant, the appearance entered on 9th February 2021 is good and cannot be said to be out of time.
  5. Equally, it must also be accepted that the Defendant accepted service of the Writ of Summons on 9th February 2021 and entered appearance on the same date. The provisions of Order 9 Rule 1 clearly apply here as the defendant by his Counsel, undertook in writing to accept service, and did in fact entered an appearance on 9th February 2021. No service of the Writ was required on the Defendant Order 9 Rule 1 states:

“ Rule 1. No service of writ shall be required when the defendant, by his advocate undertakes in writing to accept service and enters an appearance.”


  1. Having entered appearance on 9th February 2021, in the circumstances of this case that was the date on which time began to run against the Defendant to comply with the time limit for pleadings. The defendant, however, on the same day 9th February 2021, filed its defence.

13. I find and hold that service of the Writ of Summons on the Defendant on 9th September 2020 was ineffective and non-existent. The Defendant undertook, by Counsel, to accept service of the Writ and did enter an appearance on 9th February 2021. The Defendant’s defence was filed also on 9th February 2021. The appearance and defence were filed in time. Consequently no default judgement can be lawfully entered against the Defendant in the present case. The case is to proceed in the usual manner.


Alternatively: whether in default of pleadings and Courts power


  1. In case I am wrong in finding that service of the Writ of Summons on the Defendant is ineffective, I will have to consider the effect of late filing of pleadings on an application for default judgement. Assuming that service of the Writ on the Defendant on 9th September 2020 was proper and effective, the appearance and defence filed on behalf of the Defendant on 9th February 2021 would obviously be out of time. The only question then would be: can the Court order judgement in default of defence for the Plaintiff despite the defence being filed, although out of time? This question raises the issue of the Court’s power to grant judgement in default under Order 29 Rule 8 upon which the Plaintiff relies.
  2. For the sake of convenience, I set out here Rule 8 of Order 29:

“ Rule 8: In all other actions than those in the preceding Rules of this Order mentioned, and those which Rule 14 of this Order applies, if the defendant makes default in delivering a defence, the plaintiff may set down the action on motion for judgment and such judgement shall be given as upon the statement of claim the Court shall consider the plaintiff to be entitled” (Underlining added)


  1. On a straight forward application of the above, rule 8 of Order 29, where no defence has been filed, the Plaintiff may apply for judgement in default and the judgment shall be given based on the statement of claim. No controversy will arise in that scenario since at the time the application for judgment is made and the granting of the judgment in default, there has been no defence filed at all.
  2. The question arises, what is the position, in so far as the application of this rule is concerned, when a defence is filed, although late, but before the application for default judgment and entry of judgment are made or, as in this case, the defence was filed after the application for default judgment was filed but before judgment is made? Can the Court pay no heed at all to the late defence filed and simply proceed to order judgment in default in terms of the Statement of Claim as the Plaintiff is entitle to? The answers to those questions will require the Courts interpretation of the rule, in particular rule 8 of Order 29 which does not clarify the fate of a defence, although filed late, is nevertheless filed before judgment in default is made by the court.
  3. The position with regard to obtaining default judgment upon failure to file appearance or defence, whether under the old Rule or new Rules, remained unchanged until recently in 2020, in the UK. For us in Tuvalu who are still using the old Rules, the Western Pacific High Court (Civil Procedure) Rules 1964, the unclarified position under Order 29 Rule 8 remains the same. Under the UK new Civil Procedure Rules, Rule 12.3 of the UK CPR 1998, a claimant could obtain judgment in default of acknowledgment of service or defence to the claim if the defendant has not filed acknowledgment of service or defence within the relevant time. Nothing has been said about a defence being filed, although late, before judgment is obtained. As a result conflicting decisions have been made on the point.
  4. In Cunico Resources N.V –v- Daskalakis [2018] EWHC 3382 (Comm) the Defendants were late in filing their acknowledgment of service, but nevertheless did file it before the application for default judgment was issued by the plaintiff. The English Civil Procedure Rules concerned in that case in CPR 12.3 (1) which says:

”12.3 (1) The claimant may obtain judgment in default of an acknowledgment of

service only if at the date on which judgment is entered-


  1. (a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and
  2. (b) the relevant time for doing so has expired.”
  1. Mr Justice Andrew Baker considered Rule 12.3 (1) in the light of the previous decisions of the Courts and suggested three possible interpretations of the Rule, namely:
    1. i. firstly, that CPR 12.3 (1) only allows the court to grant default judgment where, at the time of judgment, there is no acknowledgment of service and the time for acknowledging service has expired (*the first meaning*);
    2. ii. secondly, that CPR 12.3 (1) allows the court to grant default judgment so long as at the time the request or application for default judgment is filed, there was no acknowledgment of service and the time for acknowledging service had expired (*the second meaning*);
    3. iii. thirdly, that the CPR 12.3 (1) allows the court to grant default judgment where timely acknowledgment of service was not filed, irrespective of any acknowledgment of service later filed, ex hypothesis after expiry of the time period set under CPR Part 10 (*the third meaning*)
  2. The previous cases referred to by Baker J are Boeing Capital Corporation –v- Wells Fargo Bank Northwest et al [2003] EWHC 1364 (Comm); E5R Insurance Services Ltd (in administration) –v- Clemons et al. [2008] EWHC 2023 (comm); Coll –v- Tattum [2001] 11 WLUK 526; Talos Capital Ltd et al. –v- JCS Investments Holdings XIV Ltd et al. [2014] EWHC 3977 (comm); Taylor et al. –v- Giovani Developers Ltd et al. [2015] EWHC 328 (comm); Almond et al. –v- Medgolf Properties Ltd et al. [2015] EWHC 3280 (comm); Unilever plc –v- Pak Supermarket [2016] EWHC3846 (IPEC); Billington –v- Davies et al. [2016] EWHC 1919 (Ch), McDonald and McDonald –v- D&F Contracts Ltd [2018] EWHC 1600 (TCC). It is not necessary to go into the analysis made by Baker J of the decisions in those cases. It is sufficient to say that the cases fall into one or the other of the above mentioned suggested “three meanings” of Rule 12.3 (1).
  3. Refusing to follow McDonald, and following Unilever, the Court in Cunico refused to grant judgment in default to the Plaintiff as the Defendant had filed their acknowledgment of service (although late) before the plaintiff filed its application for default judgement and certainly before entry of judgment in default.
  4. Then I come to the case of Clements Smith –v- Berrymans Lace Mawer Service Co & Anor [2019] EWHC 1904 (QB) (18 July 2019), conveniently I shall refer to as “Smith –v- BLM,” which has also dealt with R.12.3. This case was fixed as a setting aside hearing. Apart from the issue of whether default judgment should be set aside, the point was raised and argued as to whether judgment in default of defence should be granted given the fact that defence was actually filed, although late, before judgment was entered.
  5. The brief sequence of the events in the Smith –v- BLM case were that on 30th September 2018 the defendant applied for extension of time to file defence. That was four (4) days before the deadline for filing defence. The time for filing defence expired on 4th October 2018. The Plaintiff requested (applied) for judgment in default on 17th October 2018. On 26th November 2018 after the defendants request for Private Room Appointment Form (PRA Form) that the Court staff listed the defendants application for extension of time for hearing on 15th February 2019. On 28th December 2018 the Defence was filed and received by the Court. However the Defence was not placed in the file nor entered on the court record. On 15th January 2019 Judgment in default was entered for the plaintiff. It was on 15th February 2019 that the court entered into the court record that Defence was in fact filed. The defendant filed the application to set aside default judgment on 5th April 2019. The application to set aside judgment was heard on 12th July 2019.
  6. On those facts, one of the issues raised was: Is it open to the court to enter a default judgment where the Defence is in fact filed prior to judgment (albeit without the extension of time application having been determined)? Following Cunico Resources –v- Daskalakis (above), the Court in Smith –v- BLM held that the Court could not enter judgment if a Defence had been filed prior to the entry of default judgment. It is irrelevant when the time for filing Defence expired. Smith –v- BLM prints out that the rules relating to acknowledgement of service and defence are identical in this respect.
  7. The Court in Smith –v- BLM expressed its finding on CPR 12.3 at paragraph 23 as follows:

“ The language of CPR12.3 (1) naturally conveys the first meaning, and to say that the claimant may obtain judgment ‘only if the defendant has not filed’ naturally conveys that the court may not enter judgment if filing has taken place prior to entry of judgment. The way in which the rule is structured means that it is not relevant when the time for doing so expired. If the court finds (as is the case here) that a defence was filed. Further, I note, as did the court in Cunico, that CPR 3.10 provides that an error of procedure does not invalidate any step in the proceedings unless the court so orders. A late filed defence is in my judgment not by reason of its lateness alone fall to be treated as if not validity filed. A defence, within rule 12.3 does not have to be a timely defence.”


  1. Mr Nia made references to the case of Iotebwa –v- Attorney General [2020] KIHC 11 and Laki –v- Alaluku [2000] PGNC 60. Save for the fact that in both of those two cases, applications for default judgments were refused the circumstances of those cases are different.
  2. The case of Lamese & Ors –v- Kaupule of Nanumaga (28/5/08) High Court Civil Case No.3 of 2006 also affirms the position with regard to appearance, that the crucial time for the Court to enter judgment in default of appearance is at the time of entry of judgment. Any appearance file after judgment in default is entered is of no effect, unless judgment in default is set aside, at which time appearance can be entered.
  3. In our present case Order 29, Rule 8 of our High Court (Civil Procedure) Rules makes the point that “if the defendant makes default in delivering a defence,” the plaintiff may apply by motion for judgment in default and the Court shall enter judgement for the plaintiff in terms of the statement of claim as the court considers the plaintiff to be entitled. Put another way, the plaintiff may apply by way of a motion for judgment in default of defence and the Court to enter judgment “if the defendant makes default in delivering a defence” The natural corollary of that is that if a defence is delivered or filed, then no application for default judgment can be brought by the plaintiff and no entry of judgment in default can be made by the Court; or as in this case, an application for default judgment was filed but a defence was delivered before entry of judgment, no judgment in default can be made by the Court.
  4. It is not without significance that the language of Order 29 Rule 8 uses the words “if the defendant makes default in delivering a defence” without adding words to denote that a defence has to be timely. Thus if a defence is found to have been filed before entry of judgment, then there can be no basis for the Court to grant a default judgment because there has been no default in delivering a defence. It is irrelevant whether the time for filing a defence has expired.
  5. In our present case, the motion for default judgment was filed by the plaintiff on 7th January 2021, and the Defence was filed on 9th February 2021, the Court would no longer be in a position to enter judgment in default for the plaintiff. The defence was filed before this Court can take any action on the plaintiff’s application for default judgment.
  6. The process of obtaining default judgment under Order 29 Rule 8 is conjunctive. The application for judgment and the grant of the judgment are jointly premised on the “default of delivery of a defence” or the non-existence of a defence. The crucial time for the court to exercise its power to grant judgment in default of defence under Order 29 Rule 8 is at the time of granting the judgment, at which time no defence has been delivered.
  7. To put the present case in context, on 7th January 2021 when the plaintiff applied for default judgment, no appearance and no defence had been file. Had the court dealt with the application before 9th February 2021, Order 29 Rule 8 would entitle the plaintiff to a judgment and the court would have the power to enter judgment in default of defence for the plaintiff. Unfortunately for the plaintiff, the motion for judgment has not been listed before the court and by the time the court came to deal with the plaintiff’s application, the defendant has already filed its defence. In this case, the defendant defence delivered on 9th February 2021 precludes this court now from granting judgment in default of defence to the plaintiff. This is the strict reading of the rule.
  8. The plaintiff application for judgment in default is refused. Defence having been filed, the case is to proceed in the usual way.
  9. The circumstances of this case would not justify the award of costs against the plaintiff. Each party to bear its own costs.

Dated this 22nd day of February, 2022


Sir John Muria
Judge

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