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Carpenters Fiji Ltd v Goundar [2005] FJHC 648; HBC0044.2001L (13 May 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0044 OF 2001L

BETWEEN:

CARPENTERS FIJI LIMITED
Plaintiff

AND:

VISHWA GOUNDAR
f/n Munsami Goundar
Defendant

RULING

This matter first came before Byrne J. by Notice of Motion seeking that the default judgment dated 20 October 2001 be set aside and that a stay be granted on the 26^th July 2002.

The matter last came before Byrne J. on the 26^th September 2002 when he ordered that the plaintiff file and serve affidavit and submissions in reply by the 17^th October 2002 and that the defendant file any affidavit and submissions in response by the 31^st October 2002 and that thereafter ruling on notice.

The plaintiff failed to comply with the orders of the court but did ultimately file an affidavit and submissions on the 25^th November 2002.

The matter has now been brought to my attention as the plaintiff’s counsel seeks a ruling in the matter.

Due to the plaintiff’s failure to comply with the order of the court, the only available material upon which a ruling can be made are the submissions filed on behalf of the applicant/defendant.

The Notice of Motion states that it is made under Order 29 Rule 1 and “inherent powers” of the High Court. Order 29 Rule 1 would not appear to have any application with respect to the setting aside of a default judgment.

Order 13 Rule 10 confers on the court a discretion to set aside a default judgment on such terms as it thinks fit.

Where there is a specific provision contained within the Rules of the Court, it has in the past been held inappropriate for the court to then rely upon its inherent jurisdiction to consider relief that is available pursuant to those specific provisions.

The court does not have “inherent powers” but does in certain circumstances have “inherent jurisdiction”.

If the application were made pursuant to Order 13 Rule 10, then the recognized tests to be considered by the court are:

(1) Whether the defendant has a substantial ground of defence to the action;

(2) Whether the defendant has a satisfactory explanation of his failure to enter an appearance to the writ; and

(3) Whether the plaintiff will suffer irreparable harm if the judgment is set aside.

The affidavit filed in support of the Notice of Motion lends little support the first ground when one compares the draft notice of grounds of defence with the statement of claim. How it could take the defendant 4 years to realize the vehicle was not a new vehicle is beyond comprehension.

The defendant states in the draft notice of grounds of defence that he realized the vehicle was not new when he took it for a test drive. The defendant then continued to make payments pursuant to the alleged agreement until April 2000.

There is no satisfactory explanation for the delay. The stated explanation that a further copy of the writ was requested from the plaintiff is inadequate. The court file could have been perused and a further copy obtain from the court should that have been necessary or alternatively advice could have been sought from counsel. Ignorance is not a justification for failure comply with the Rules of the Court. If it were and if such breaches were to be excused then anarchy would be the result.

There is nothing before me to suggest that the plaintiff would suffer irreparable harm if the judgment be set aside. However for the reasons stated, it would be inappropriate for the judgment to be set aside due to the failure of the defendant/applicant to satisfy the first two of the three tests set out above and accordingly, the Notice of Motion is dismissed. Due to the plaintiff’s failure to comply with the Order of the Court in this matter, I make no order as to costs.

JOHN CONNORS
JUDGE

At Lautoka
13 May 2005