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Nair v Shell Fiji Ltd [2004] FJHC 396; HBC0274.1999L (26 March 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0274 OF 1999L

BETWEEN:

JAGDISH CHANDRA NAIR
Plaintiff

AND:

SHELL FIJI LIMITED
Defendant

Counsel for the Plaintiff: Mr. I. Khan
Counsel for the Defendants: Mr. I. Razak

Date of Hearing & Judgment: 26 March 2004

EXTEMPORE JUDGMENT

The matter comes before the court by way of a Summons filed on 9^th December 2003 on behalf of the defendant company wherein the defendant seeks orders:-

1. That the judgment by default entered on the 1^st October 1989 against the defendant be wholly set aside;
   
2. That the sum of $21,185.18 paid under protest into court on the 17^th of November 2003 be retained by the court until the determination of this application.
   

In support of the application, the defendant relies upon an affidavit sworn by Satya Chandra dated 8^th December 2003.

The application is opposed by the plaintiff, who relies upon an affidavit of Janardan Naidu sworn on the 10^th February 2004. I have had the benefit of written submissions filed on behalf of the defendant and on behalf of the plaintiff.

The defendant bases its application on the default judgment entered on the 1^st October 2003 having being obtained irregularly. The irregularity, on which the defendant relies, is that the claim was not for a liquidated sum and accordingly default judgment could not be entered. The claim included a claim for interest of the judgment on the amount claimed at the rate of 10%.

The plaintiff submits that the defendant’s Summons is defective in that it does not particularize the irregularity as required and further that the defendant has failed to show any defence on the merits.

In response to these two submissions, the defendant submits that Order 20 Rule 7 enables the application to be amended to facilitate the real issues being resolved between the parties and that accordingly the court might allow an amendment to be made to particularize the irregularity.

In this regard I note that there is no doubt in the mind of the plaintiff, as to the nature of the irregularity as it is clearly addressed in the submissions.

With respect to there not being a defence on the merits, the defendant submits that there is no necessity for there to be a defence on the merits where the submission relates to a judgment having being obtained irregularly.

In White v Weston [1968] 2 Q.B. 647, it was held that where there is an irregularity that the defendant is entitled to have the judgment set aside, and the court should impose no terms whatever on him not even contingent terms such as, that the costs should be costs in the cause. The decision followed a much earlier decision of Nalaby & Others v Praetorius [1888] UKLawRpKQB 55; [1888] 20 Q.B.D 764.

If it is that when dealing with a judgement irregularly obtained, the defendant is entitled to have the judgment set aside without any conditions, it seems to me that by analogy the requirement that there be a defence on the merits does not apply.

As I have said, the defendant is entitled to seek to have the Summons amended pursuant to Order 20 Rule 7 and as I have also said, such amendment does not catch the plaintiff by surprise as the issues are clearly addressed in the submissions.

The pleadings in this matter rely upon a claim for work done and materials provided, particulars of which are set out in the statement of claim. The statement of claim in paragraph 5 pleads that the plaintiff and I quote: -

“Further claims interest at the rate of 10% per annum computed from the 30^th day of July, 1993 to the date of judgment.”

No agreement with respect to the claim for interest is pleaded. No particulars are given as to how the rate of 10% or the entitlement to interest arose. I am unable to accept that the claim for interest is a liquidated claim and accordingly, I am unable to accept that judgment was regularly entered.

There is no need for there to be a defence for the plaintiff to be required to prove that part of its claim that is not a liquidated claim. The procedure is, that the damages be assessed, that application be made to the court for that to occur and that in my opinion is what should have occurred in this instance. The judgment could have been entered by default for the amount claimed, for the labour and materials provided but the balance of the claim, that is, the interest should have been the subject of formal proof before the court in the normal way.

I accept the defendant’s reasons, for delay stated in the affidavit in support of the Summons, that it did not become aware of the Summons until such time as execution was attempted and accordingly, I do not consider that the defendant has delayed in bringing this application to the court, it having done so promptly upon the execution of the writ.

It is therefore in my opinion incumbent upon the court to set aside the judgment, and in doing so, I acknowledge for the reasons that I have stated, that the amount claimed for work done and materials provided, would indeed appear to be a liquidated claim for which default judgment might be entered and it is only the interest component that falls outside the scope of the default judgment provisions.

Accordingly, the Orders of the Court are: -

1. I direct that the defendant’s Summons be amended to particularize the irregularities upon which the defendant relies, that is, that the claim for interest was not a liquidated sum.
   
2. The judgement entered by default on the 1^st October 1999 against the defendant be set aside as to all amounts exceeding the sum of Eleven Thousand, Ninety Six Dollars and Sixty Cents ($11,096.60).
   
3. That costs be costs in the cause.
   

JOHN CONNORS
JUDGE

AT LAUTOKA
26 March 2004