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Barlow v Than [1987] VULawRp 8; [1980-1994] Van LR 315 (2 November 1987)

[1980-1994] Van LR 315

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

Civil Case No. 138 of 1987

BETWEEN:

ALBERT KEITH BARLOW
First Plaintiff

AND:

SUSAN BOTHMANN BARLOW
Second Plaintiff

AND:

DINH VAN THAN
Defendant

Coram: Chief Justice Cooke

Counsel: Ms S. Bothmann Barlow for Plaintiffs
Mr G. Gee for Defendant

JUDGMENT

[JUDGMENTS AND ORDERS - Default Judgment - Application To Set Aside]

The Plaintiffs initiated their claim against the Defendant by way of a specially endorsed writ claiming some 10,159,250VT and 2,800US$ for salary, expenditure incurred, office equipment, a radio, a container, cost of a hangar and damages. This writ was filed on the 16th September 1987. On the 25th September an appearance was entered by Mr Gee, solicitor, on behalf of the defendant.

On the 23rd October, Susan Bothmann Barlow appearing for the first Plaintiff and herself, the second Plaintiff, applied to the Chief Registrar for Judgment against the Defendant as no defence had been filed by him and that the Plaintiff recover the sum claimed in paragraphs (1) to (7) in the particulars of claim amounting to 5,159,250VT, 2,800US$ and costs of 50,000VT.

It is clear from the record that no notice was served on the defendant or his lawyer that an application for Judgment would be made on the 23rd October 1987.

On the 28th October a summons was filed in the Court by Mr Gee, lawyer for the Defendant, applying for the Judgment to be set aside and that the Defendant be at liberty to defend his action by serving a defence and counter-claim within 7 days.

The matter came before me on 30th October 1987. Mr Gee for the Defendant, in an affidavit filed by him, stated

: that both before and after the service of the writ he held discussions with Susan Bothmann Barlow as to the merit of the case and orally informed Susan Bothmann Barlow;

: that it was the intention of the Defendant to defend the case and to counter-claim;

: that on the 24th September he entered an appearance on behalf of the Defendant;

: that the case is a complicated one and some time was required for the Defendant to gather the material for a defence to be prepared.

He submitted a draft defence denying paragraph 2, 6, 7, 10, 13, 14, 16, 20, 22, 23, 24, 27, 28, 29, 33, 34 to 37. That is claims of nineteen matters in the statement of claim are denied. This is certainly a substantial denial.

Susan Bothmann Barlow did file a reply to the affidavit which was filed in the Court shortly before the hearing of this matter and was served on Mr Gee actually at the hearing with the result he contended he did not have time to consider the said affidavit.

In the affidavit Susan Bothmann Barlow did admit she and Mr Gee had several telephone conversations in which a possible settlement was considered. Later she was informed that the Defendant's mood had altered in the light of certain correspondence he had received. That she again contacted Mr Gee and advised him in the strongest terms that if he did not get the Defendant's offer of settlement she would have no alternative than to issue proceedings against him. She said if she did initiate proceedings she would not be prepared to accept or allow any delays, courtesies or other substantive or procedural concessions. She contended that she thought the Defendant was attempting to delay the settlement of the issues because it would be to the Defendant's advantage and prejudice the two Plaintiffs.

She denied that Mr Gee informed her that it was the Defendant's intention to defend or to counter-claim but it seems to me from the matter contained in the affidavit, the Defendant, in that no settlement was reached, has to defend the action.

A similar application, such as this, was made to the Court on the 7th October 1985 in Civil Case 98/1985 - Brenner v. Boyd and Lilian Johnson and Andre Naturel. In that case, Mr McKeague appeared for the defendants and Mr Coombe for the Plaintiff. I considered in that case that the lack of action by the solicitors was so grave that I rejected the application of Mr McKeague to set aside the judgment entered against his clients. Mr Coombe, in that case, in his submissions referred to all the opportunities he gave to the Defendants to enter an appearance and file a defence but received no answers to his letters and no action was taken until execution of the judgment commenced. Mr Coombe wrote: "In the event that you fail to file an appearance and a defence by Monday 26 August 1985, we will proceed to sign judgment by default." In fact, Mr McKeague was given a further 7 days after the 26 August before judgment was entered. I stated in that judgment that the contents of that letter should have jolted any lawyer into immediate action but regrettably it did not do so to Mr McKeague.

Under Order 13 and 29 of the High Court Civil Procedure Rules applicable in Vila and Order 13 rule 10 of the Supreme Court Rules of England, the power to set aside a judgment obtained on default of appearance is given to the Court or a Judge. It is a power entrusted to the discretion of the Court or Judge.

Lord Aickin in Evans v Bartlam (1937) A.E.R. 646 states:

"The discretion is in terms unconditional. The Court, however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that, where the judgment was obtained regularly, there must be an affidavit of merits, meaning that the applicant must produce to the Court evidence that he has a prima facie defence."

At page 656 of the same case, Lord Wright states:-

"A discretion necessarily involves a latitude of individual choice, according to the particular circumstances, and differs from a case where the decision follow ex debito justitiae, once the facts are ascertained. In a case like the present, there is a judgment which though by default, is a regular judgment, and the applicant must show grounds why the discretion to set aside should be exercised in his favour. The primary consideration is whether he has merits, to which the Court should pay heed; if merits are shown, the Court will not prima facie desire to let pass a judgment on which there has been no proper adjudication."

Another case was Burgoine v Taylor (1878) Ch D 1. Fry J. at page 4 states:

"I am asked to set aside this judgment on the simple ground that the Defendant's solicitor and his clerk were so negligent that they did not know of the order for transfer to my Court, or that the action had come into the list for trial, and I think that I ought not, upon this simple ground of gross negligence, to grant the application."

He refused the motion with costs.

The Defendant appealed. Jessel, M.R. stated:

"We think that the Order asked by the Defendant ought to be made, solicitors cannot, any more than other men, conduct their business without sometimes making slips; and where a solicitor watches the list and happens to miss the case, in consequence of which it is taken in his absence, it is in accordance with justice and with the course of practice to restore the action to the paper, on the terms the party in default paying the costs of the day, which includes all costs thrown away by reason of the trial becoming abortive. As a general rule, solicitors in my branch of the Court consent to such an order as is now asked, and that such an application should be opposed is to me a novelty. Still, as the Appellant was in default, he must pay the cost of the application to the Court below, but no costs of the appeal."

The other judges concurred.

In this application, the Defendant did prove to the Court that he has a prima facie defence.

Again, in my opinion, and following the views of Lord Wright in Evans v Bertlam aforesaid, the Defendant has shown in his draft defence he has merits to which the Court should pay attention. This being so, the Court should not prima facie let pass a Judgment on which there has been no proper adjudication.

Accordingly, I allow the application of the Defendant and set aside the default judgment and that the Defendant be at liberty to defend his action by serving a defence and counter-claim within 7 days. I award costs to the Plaintiffs.

2 November 1987

FREDERICK G. COOKE
CHIEF JUSTICE