| Fiji Islands - Public Employees Union v Leweniqila - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO: HBC0393 OF 1999S
BETWEEN:
1">
PUBLIC EMPLOYEES UNION
Plaintiff
AND:
nbsp; PELEKI LEWENIQILA
1st Defendant
AND:
BULEWA, SEMISI & ASSOCIATES
2nd Defendant
Ms Saumatua for Plaintiff
Mr K. Vuataki for Defendants
Hearing: 29th August 2001
Judgment: 4th September 2001
JUDGMENT
&nbB>
On 20th August 1999, the Plaintiff issued writ of summons against the Defendants claiming the sum of $99,4. The Statement of Claim
stim states at paragraph 7:
“That on or about June 1993 to March 1994, the First Defendant unlawfully and without any colour of right uplifted from the Permanent
Secretary for Public Works and Mr Karan Singh being the Chief Accountant of the Public Works Department at Lautoka, cheques payable
to the Plaintiff as Union dues from its members amounting to a sum in excess of $100,000 (one hundred thousand dollars) and deposited
the same into the Second Defendant’s Trust Account No. 272-265788-00 with the National Bank of Fiji at its main branch, Head Office,
Suva.”
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The Statement of Claim then particularised each cheetail to the total amount of $99,488.00. It claims that the actions of the Defendants
placeplaced the Plaintiff in a position of financial hardship and stress, and damaged the reputation of the Plaintiff. The claim
is detailed as:
1) &nsp; &&nbp;;&nbpp; &nnsp; &nbp; &nbbp;&nnbp;& Judgmeudgment in the sum of $99,488.00 with interest;
&nnsp;&&nsp;;&nspp;&nssp;&nsp; p;&nssp;
Generaeneral Damages;
N-GB>3) &nnsp;&&nsp;;&nspp;&nssp;&nsp;  pan>sosts.
<
No Defence was filed by the First Defendant. Judgement was entered on 28th September 1999 in the sum of $99,488.00 plus interest at
12% per annum from the dates of receipt of the money until the date of Judgment and for damages to be assessed.
On 23rd September 1999, the First Defendant applied to set aside judgment. I refused that application on 1st December 1999, on the
grohat the Defendant had not snot shown that he had a meritorious defence. The Defendant appealed to the Court of Appeal. The Court
of Appeal dismissed the appeal.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> On 5th March 2001, the Plaintiff made an applic under Order 50 of the High Court Rules for a Charging Order to be granted against
a piece iece of land in Naitasiri in which the First Defendant has a beneficial interest.
Before that application was heard, the First Defendant made another application, filed on 17th July 2001, to set aside Default Judgment.
This time the ground for setting aside was that the judgment had been irregularly entered because the claim was in tort and the damages
claimed had to be quantified. The application was supported by the affidavit of Eroni Baleiwai sworn on the 17th of July 2001.
I ordered that both applications to be heard together. Both counsel made written submissions and the Plaintiff was given leave to
file a further affidavit of Filimone Banuve sworn on 22nd August 2001, giving further details of the property sought to be charged.
Application to Set Aside Judgment
The application to set aside judgment is made under Order 2 Rule 2 of the High Court Rules. Order 2 Rule 2 reads:
“(1) An application to set aside for irarity and proceedings, any any step taken in any proceedings or any document, judgment or
order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step
after becoming aware of the irregularity.”
The affidavit in support of the summons to set aside, is of Eroniiwai, Law Clerk. He states that the First Defendant’s former solicitors
failed to send the the relevant file until the 13 of July 2001. It was then that the First Defendant’s solicitors realised that
the claim was in tort and that judgment in default for a fixed sum could not have been entered.
In his submissions, counsel for the First Defendant submits that the claim by the Plaintiff is in unliquidated damages and that the
claim is in tort for conversion and detainer of the union dues. He submits that where judgment has been obtained irregularly it must
be set aside “ex debito justiciae.”
In response, counsel for the Plaintiff says that the Defendant is not entito have the judgment set aside unconditionally and as of
riof right. She invites the court to refuse the application.
Were the damages claimed for a liquidated amount? In Subodh Kumar Mishra -v- Car Re Civil Appeal No. 35 of 1985, the Fiji Court of Appf Appeal held that where a claim was in tort and the damages claimed were special
damages, matters which had to be proved before “a judgment can go”, the claim was for an unliquidated amount. In that case the claim
was for the cost of repairs to a vehicle relating to a claim of negligence arising from a motor vehicle accident. Nevertheless, the
Court rejected the submission that judgment had been irregularly obtained and held that the appellant was not entitled to have it
set aside as of right.
In Workman Clark Co. Limited -v- Lloyd Brazileno (11 KB 968 the court held teld that:
“A claim is unliquidated, where even though specified or named as a definite figure, its ascertainment requires investigation beyond
mere calculation.”
In Suresh Charan -v- National InsurCompany Limited Civil Appeal No. ABU0067 of 1998/S, a default judgment had been entn entered in respect of car repair costs claimed from an insurance
company. The Court of Appeal held that there was no liquidated claim, referring to Alexander -v- Ajax Insurance Co. Ltd. [1956] VicLawRp 5; (1956) VLR 436. In that case Sholl J held that a claim by an insured under an indemnity policy was usually a claim for unliquidated damages except
in cases where there has been a total loss and “except possibly ... where there has been a binding and conclusive adjustment of the
claim before action brought.”
Turning therefore to the facts of this case, I find it unhelpful to ask whether the claim is in tort or in contract. Id the question
is whether ther the Plaintiff has to prove the amount claimed, and whether therefore the claim is a liquidated one.
The claim is for a fixed amount which the Plaintiff said it never received buuld have received. The Plaintiff said the total sum was
taks taken by the First Defendant and deposited into the Second Defendant’s trust account. The facts clearly indicate a liquidated
claim.
Further, even if the claim was for unliquidated damages, this would not necessarily render the judgment irregular (see Subodh Kumar Mishra (supra) ). All that would be needed would be to substitute “damages to be assessed” as the Court of Appeal did in Suresh Charan (supra). Nor is this application made within a reasonable time. The First Defendant has been represented by counsel throughout these
proceedings, and a change in solicitors does not in my view, justify the delay in making the application under Order 2 Rule 2.
I therefore refuse the application to set aside jut on the ground that it is irregular, and find that judgment was regularly obtained.span>
The Charging Order
The Plaintiff has made an application under Order 50 Rule 2 of the High Court Rules. Order 50 Rule 1 provides that a judgment creditor
may make the application ex parte to show cause, and that the application shall be supported by affidavit identifying the judgment,
stating the amount unpaid at the date of the application, stating the name of the judgment debtor, giving full particulars of the
subject matter of the intended charge and verifying that the interest to be charged is owned beneficially by the judgment debtor.
When the court is satisfied of all the above, it may make an order to show cause under Order 50 2, and a copy of the order with a
copy of the affidavit shat shall be served on the judgment debtor. Order 50 Rule 2(2) provides that where the court finds that there
are other interested persons, a copy of the order and the affidavit in support may be directed to be served on the interested parties.
At the outset I informed counsel for the Applicant that I considered that inadequate information had been provided to the court in
the initial affidavit of Filimone Banuve. She then filed the supplementary affidavit of Filimone Banuve sworn on 22nd August. His
second affidavit reveals that the property which is the subject of the application is L236585, Vuda Street, Makoi, a residential
property valued at $47,000. The registered lessor is the Housing Authority, and the registered lessees are the First Defendant and
his wife Verenaisi Leweniqila. A copy of the mortgage to the Housing Authority shows that it has now been cancelled, and this is
confirmed by letter (Annexure E to the affidavit).
The affidavits of Filimone Banuve satisfy the require of Order 50 Rule 1. I find that although the Housing Authority no longer has
an interest iest in the property, the First Defendant’s wife is a co-owner of the lease, and that therefore she is an interested
party.
I make the order sought by the Plaintiff in its summons of 12th March 2001. I order that a copy of the order and of the twidavits
of Filimone Banuve nuve be served on the First Defendant and on his wife Verenaisi Leweniqila by 18th September 2001. This matter
is adjourned for further consideration under Order 50 Rule 3 of the High Court Rules, to 9am on 28th September 2001, in Chambers.
Nazhat Shameem
b>JUDGE
At Suva
4th September 2001
Hbc0393x.99s
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2001/64.html
