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Chul v Doo Won Industrial (Fiji) Ltd [2004] FJHC 24; HBC0011R.2004S (4 October 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0011R.2004S

BETWEEN:

NO JAE CHUL
PLAINTIFF

AND:

DOO WON INDUSTRIAL (FIJI) LTD.
HAE DOO LEE, DON KOON KIM,
A.N. YOUNG KIM, APETE LOMANI
DELAILAKEBA
DEFENDANTS

Counsel for the Plaintiff: R. Naidu: Jamnadas & Assoc.
Counsel for the Defendant: R. Singh: Kohli & Singh

Date of Ruling: 4th October, 2004
Time of Ruling: 11.50 p.m.

EX TEMPORE RULING

This Defendant’s application to set aside is dismissed.

In the first place, the applicant, one was Jin Chae, purports to act for the first Defendant, by virtue of a Power of Attorney given to him by the second Defendant, who, along with the third and fourth Defendants, are directors of the first Defendant. The applicant himself is not a director. Any action taken on behalf of the Company, including this present application, can only be done by a director under the seal of the Company. A director is a creature of the articles of association of the Company, as well as the Act. His duties and responsibilities are specifically set out in the Act and in the articles. In my view, a director cannot, by the instrument of a Power of Attorney, cede his legal authority, duties and responsibilities imposed by law to another except than in accordance with the provision of the Act. But even if were possible to cede the powers vested in the directorship of a Company, to a third party, through a Power of Attorney, it can only be personal, the exercise of which if purportedly on behalf of the Company, will need the sanction of the Company.

Secondly, the application is made pursuant to Order 14 r.11 of the High Court Rules, dealing with summary judgment. However, as Counsel for the Plaintiff correctly points out, the judgment sought to be set aside, is a default judgment and setting aside should have been pursued under Order 13. There is a world of difference between an application to set aside a summary from a default judgment. The former is reached only after the formal sanction of the Court pursuant to the Plaintiff’s application, while the latter can be obtained as a matter of course following the Defendant’s failure to acknowledge service. This Court had in Rejieli Dioge v. Munian Chetty & Or. CA 0053.2002, decided that such an error is fundamental which the Court cannot, in its discretion, rectify as mere non-compliance under Order 2 of the Rules.

As to the substantive arguments put forward by the Applicant in support of his Motion, I do not find them sufficient and convincing for the exercise of discretion in his favour. The default judgment was regularly obtained. The judgment sum is not in dispute.

The reason advanced by the Applicant as to why the judgment was allowed to be entered, is that the service of the Writ was to the address where the Directors had previously resided but since vacated. However the address of 310 Princes Road Tamavua, is the registered office address which appears on the Registrar of the Companies’ office. The fact that the Company may have moved office, without informing the Registrar cannot absolve them from their present predicament. As far as the law is concerned, service on the registered office of the Company is sufficient.

There has this Court finds, equally been an undue delay in the Applicant’s Motion to set aside. The default judgment was served on the First Defendant’s new place of business at 47 Ackland Street, Vatuwaqa on 18 February, 2004. It did not move until 28 July 2004 when it filed its application to set aside. The law requires that an application must be made within a reasonable time: Halsbury’s Laws of England Vol. 37 (4th Ed) paragraph 403 states,

“A Defendant against whom a default judgment has been entered, either for failure to give notice of intention to defend or for failure to serve a defence or appear at the trial, may apply to the court without the need to obtain leave, even where he has failed to give notice of intention to defend. The application should, of course, be made promptly and within a reasonable time of getting to know the judgment.”

What constitutes a reasonable time depends on the particular circumstances of a case. In this instance, there is no discernable justifiable reason as to why the First Defendant had to wait for over 5 months before acting.

On the merit of the defence, the Court is satisfied that the Applicant has failed to satisfy the Wearsmart Textiles test. Evidence before me clearly show that the debt is owed by the First Defendant to the Plaintiff and that there is no arguable or trialable issue. If anything, the delay including this attempt to set aside the judgment, will only prejudice the Plaintiff.

The Application to set aside is dismissed.

Costs of $200.00 against the First Defendant.

F. Jitoko
JUDGE

At Suva