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Kiran v Kumar [2014] FJHC 112; HBC73.2009 (3 March 2014)

IN THE HIGH COURT OF THE REPUBLIC OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

CIVIL ACTION NO. HBC 73 of 2009

BETWEEN :

INDAR KIRAN aka INDRA KIRAN
of Korotogo, Sigatoka, Domestic Duties
Plaintiff

AND :

ANIL KUMAR
of Nasoso, Nadi, Driver
1st Defendant

AND :

MICHAEL'S TAXIS & TOURS LIMITED
a limited liability company registered under the provisions of the Companies Act and having its registered office at Sharma Street, Narewa Road, Nadi
2nd Defendant

AND

TOWER INSURANCE FIJI LIMITED
a duly incorporated limited liability company having its registered office in Suva.
Third Party

Appearances:

Messrs Patel & Sharma, Barristers & Solicitors for the plaintiff
No appearance for the 1st defendant
Messrs Rams Law, Barristers & Solicitors for the 2nd defendant

Date of Hearing : 25 October 2013
Date of Ruling : 3 March 2014

RULING [On setting aside]

Introduction

[1] On 2 August 2012 the second Defendant filed an application by way of summons ("the application") to have the default judgment entered against it set aside. The application is supported by an affidavit of Michael Fenech, the Managing Director of the second Defendant ("the supporting affidavit"). The supporting affidavit annexes exhibits "MF1" and "MF2". The application is made pursuant to O.19, r.9 of the High Court Rules of 1988 ("HCR"). The application is made, inter alia, on the ground that the default judgment was irregularly entered as the second Defendant was never served with the writ of summons and the statement of claim. The application seeks the following orders:

1. An Order that the Default Judgment dated the 29th day of June 2010 in the action herein and the subsequent order made by the Master of the High Court Mr A Tuilevuka on the 24th day of October 2011 be herein set aside.
   
2. An Order that leave be granted to the Second Defendant to defend the claim herein against it.
   

100. An Order that the execution of the said Orders be stayed
     

4. An Order that the Plaintiff pay for the costs of this application.
   

[2] Plaintiff opposes the application of the second Defendant. On 25 September 2012 The Plaintiff filed an affidavit in reply together with exhibits "A-D" and stated that the writ of summons and the statement of claim were duly served on the second Defendant and were received by the company director, Mr. Michael Fenech on 23rd day of September 2009. In the affidavit in reply the Plaintiff further stated that the statement of defence has no merits and therefore seeks that the application to be struck out with cost in his favour.

[3] On1 October 2012 the second Defendant filed affidavit of Michael Fenech in Response to the affidavit in Reply of the Plaintiff. The second Defendant in its affidavit in response states, among other things, that the second defendant was not aware of the proceedings herein and further was not aware of any judgment against it or any assessment of damages.

[4] In the meantime, on 10 May 2013 the second defendant initiated third party proceedings against Tower Insurance (Fiji) Limited (the third party) seeking full and complete indemnity against the Plaintiff's claim, interest and cost. The third party filed statement of Defence and stated, among other things, that the third party policy issued to the second defendant in respect of motor vehicle registration number DQ723 did not cover persons who were being carried in or entering or getting into or alighting from it and thus the third party is not liable to indemnify the second defendant against any liability, claim, judgment or demand.

[5] Subsequently, on 29 August 2013 the third party proceedings initiated against the Tower Insurance (Fiji) Limited were settled and terminated on the basis of the second defendant's agreement that there is no cause of action against the third party in this matter as there was a breach of policy condition and that the second defendant will not claim any indemnity against the third party for any liability against it.

[6] At the hearing, both counsel made oral submissions. In addition they have also filed useful written legal submissions.

Background

[7] On 16 May 2009 the Plaintiff brought these proceedings against the defendants seeking special damages in the sum of 1314,50, general damages for pain and suffering and loss of amenities of life and expectation of life, interest on any monetary award and costs of this action. In his statement of claim the Plaintiff alleges that first defendant, Anil Kumar was an employee of the second defendant, Michael's Taxis & Tours Limited. The second defendant is the registered owner of Motor Vehicle Registration Number DQ723. According to the Plaintiff, on or about 16 May 2006 the first defendant was in control and driving the said vehicle and the Plaintiff was the front seat passenger whilst travelling along Queens Road at Koronubu in Ba. The first defendant drove the vehicle so negligently and/or recklessly that veered off the road. As a result the Plaintiff sustained injuries and her left arm had to be amputated.

[8] The Plaintiff says a copy of the writ of summons and acknowledgement of service of writ of summons were personally served on the second defendant, which the second defendant now denies in these proceedings. An affidavit of service of Reeaz Ali, bailiff is sworn and filed on 10 May 2010 in proof of service wherein he states that on 23rd day of September 2009 at Nadi he personally served on the second defendant with a true copy of writ of summons and acknowledgement of service.

[9] On 23 June 2010 the Plaintiff did a search of acknowledgement of service and statement of defence. Upon the search the Deputy Registrar by his certificate dated 29 June 2010 confirmed that no statement of defence and acknowledgement of writ is filed by the defendants herein. Thereafter the Plaintiff entered default judgment against the defendant on the same day, i.e. 23 June 2010 that there be judgment by default for the Plaintiff and special, general damages and costs to be assessed.

[10] Thereafter on 10 November 2010 the Plaintiff filed notice of assessment of special damages and general damages. A copy of notice of assessment was personally served on the second defendant on 14 December 2010 and an affidavit of service of Reeaz Ali, the bailiff sworn on 19 January 2011 has been filed on 20 January 2011 in proof of service wherein he states that one Michael Fenech accepted service for and on behalf of the second defendant but refused to acknowledge on the copy thereof.

[11] The notice of assessment filed by the Plaintiff was heard by Master Anare Tuilevuka (as he then was) and on 24 October 2011 delivered his ruling and awarded a total damage in the sum of $97,449.50 with 7% interest on special and general damages.

[12] Following the ruling on notice of assessment, on 30 April 2012 the Plaintiff filed a writ of Fieri Facias against the second defendant to execute the judgment. The Fieri Facias was served by the Court Sheriff on the second defendant in May 2012.

[13] It is only after the Plaintiff filed the Writ of Fieri Facias, the second defendant filed its current application through its Solicitors to set aside the default judgment.

Second Defendant's Submissions on setting aside

[14] (a) Learned counsel for the second defendant submitted that the Plaintiff alleges to have served the writ of summons, default judgment, and notice of assessment of special damages and general damages on the second defendant, however, in the affidavit of service signed by the bailiff namely Reeaz Ali and sworn on 10th day of May 2010 for the alleged service of the writ of summons the affidavit of service fails to specify the location in Nadi that writ of summons was allegedly served. He further argued that the affidavit states the second defendant was personally served. However, the said Reeaz Ali could not have personally served on the second defendant as it is only a legal entity. The writ of summons, he submitted, should have been served either on the registered office of the second defendant or via post to the second defendant's registered postal address. He cited section 391 (1) of the Companies Act and O.65 r.8 of the HCR.

[15] Learned counsel for the second defendant also cited the case authority of Burns v Kondel [1971] 1 Lioyds Reps 554, at 555, where Lord Denning, MR held:

"We all know that in the ordinary way the court does not set aside a judgment in default unless there is an affidavit showing a defence on the merits. That does not mean that the defendant must show a good defence on the merits. He need only show a defence which discloses an arguable or triable issue".

The principle on which the court acts where it is sought to set aside a judgment resulting from a failure to comply with the rules was stated by Lord Atkin in the House of the Lords case Evans v Bartlam (1973) 2 All ER p. 646 at p.650. He said:-

"I agree that both R.S.C. Ord. 13 r.10, and R.S.C.Ord 27, r. 15; gives a discretionary power to the judge in chambers to set aside a default judgment. The discretion is in terms unconditional. The courts 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 application must produce to the court evidence that he has a prima facie defence. It was suggested in argument that there is another rule that the applicant must satisfy the court that there is a reasonable explanation why judgment was allowed to go by default, such as mistake, accident, fraud or the like. I do not think that any such rule exists though obviously the reason, if any, to set it aside is one of the matters to which the court will have regard in exercising its discretion. If there were a rigid rule that no one could have default judgment set aside who knew at the time and intended that there should be a judgment signed, the two rules would be deprived of most of their efficacy. The principle obviously is that, unless and until the court has pronounced judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has been obtained only by a failure to follow any of the rules of procedure.

We draw attention to that part of Lord Atkins statement referring to the fact that a defendant only has to establish a prima facie defence. The learned Judge cannot have had the principles enunciated in Bartlam's case in mind when he ordered in effect that the appellant had to establish its defence. The statement also indicates that a draft defence is not necessary, what is required is an affidavit disclosing a prima facie defence."

"this is of course does not mean that I should attempt to resolve the issue between the parties now that I should decide whether I think that the proposed defence is likely to be successful. All that I have to decide is whether I am satisfied that the Defendants have put forward a bona fide defence giving rise to triable issues."

Plaintiff's submissions on setting aside

[16] Learned counsel for the Plaintiff submitted that the Plaintiff will be greatly prejudiced and that it is in the interest of justice that an order not to be made to set side the default judgment and the cost to be awarded in favour of the Plaintiff. He argued that the second defendant claims that the papers were not served on it and also that the affidavit of service defective. He also submitted that the defective affidavit of service, in the manner it is drafted, will not nullify the proceedings or the default judgment and the assessment of damage. He cited O.2, r.1 of the HCR. He further argued that the default judgment was obtained regularly and the second defendant must show defence on merits which the defendant has not shown any and that the second defendant's application to set aside must be dismissed.

Law on setting aside

[17] O. 19, r. 9 of the HCR (O.19 deals with default of pleadings) provides:

"The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order"

Law on setting aside irregular default judgment

[18] The court must set aside a judgment entered if the judgment was wrongly entered. In the case of a default judgment entered against a defendant irregularly or wrongly, the defendant is entitled to have it set aside as of right.

[19] Fiji HCR does not provide meaning of irregular judgment, but English Civil Procedure Rules provide meaning of wrongly entered judgment:

"The rules in Part 13 of the Civil Procedure Rules set out the procedure for setting aside or varying judgment entered under Part 12 of the rules.

The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because:

1. in the case of a judgment in default of acknowledgment of service, the conditions upon which a default judgment is obtainable relating to the filing of an acknowledgment of service or defence were not satisfied, or the defendant has applied for an order striking out the claim or for summary judgment and that application has not been disposed of, or the claimant is seeking judgment on a money claim and the defendant has filed or served an admission together with a request to pay;
   
2. in the case of a judgment in default of a defence, the conditions upon which a default judgment is obtainable relating to the filing of a defence were not satisfied or the other circumstances set out in head (1) above apply; or
   
3. the whole of the claim was satisfied before judgment was entered.
   
4. These are the only grounds on which a default judgment must be set aside as of right; the fact that the defendant did not know of the claim because he had not received the claim form does not, on its own, entitle the defendant to have the default judgment set aside "(See Halsbury's Vol 37 para 516).
   

Law on setting aside regular default judgment

[20] In a case where the court is not required to set aside a default judgment entered under Part 12 of the Civil Procedure Rules, the court has a discretion to set aside or vary such a judgment if the defendant has a real prospect of successfully defending the claim or it appears to the court that there is some other good reason why the judgment should be set aside or varied or the defendant should be allowed to defend the claim. An application under this provision must be supported by evidence. In considering whether to set aside or vary a judgment so entered, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly [My emphasis] (See Halbury's Vol.37 para 517).

[21] (a) The basic principles applicable to setting aside judgments in the exercise of [a] Court's discretion are set out in Halsbury's Laws of England Vol 37, inter alia, thus:

In the case of a regular judgment, it is an almost inflexible rule that the application must be supported by an affidavit of merits stating the facts showing that the defendant has a defence on the merits ... For this purpose it is enough to show that there is an arguable case or a triable issue.

(b) The discretion is prescribed in wide terms limited only by the justice of the case and although various "rules" or "tests" have been formulated as prudent considerations in the determination of the justice of a case, none [has] been or can be elevated to the status of a rule of law or condition precedent to the exercise of the Court's unfettered discretion.

1. Delay and in this respect reasonable time means a time reasonable in all the circumstances see: Monkland v Jack Barclay Ltd;
   
2. Defence in the merits In Shocked v Goldschmidt Legatt LJ said: "these cases relating to default judgment are authority for the proposition that when considering whether to set aside a default judgment, the question of whether there is a defence on the merits is the dominant feature to be weighed against the applicant's explanation both for the default and any delays, as well as against prejudice to the other party"
   
3. Prejudice to the parties.
   

Analysis and determination

[22] To decide on the second defendant's application to set side the default judgment entered against it and ruling on notice of assessment, I must firstly determine whether the default judgment was obtained regularly or irregularly. If I find that the default judgment against the second defendant was obtained irregularly, then it is an almost inflexible rule that the default judgment will be set aside as of right. Conversely, if I find that the default judgment was obtained regularly, then it is an almost inflexible rule that the application must be supported by an affidavit of merits stating the facts showing that the defendant has a defence on the merits.

[23] I will now turn to the issue of service. The second defendant claims that the writ of summons and acknowledgement of service and the notice of assessment were never served on the second defendant. If the default judgment had been obtained without proper service of those documents on the second defendant, that judgment would be irregular then the second defendant is entitled to have the default judgment set aside even at the execution stage as of right.

[24] The second defendant says that the writ of summons and acknowledgement of service were never served on it. The second defendant is a registered company under the Companies Act and having its registered office at Sharma Street, Narewa Road, Nadi. A Mr Michael Fenech is its Managing Director who has sworn an affidavit in support of the application. In that affidavit he states in paragraphs 5, 6 & 7 as follows:

"...

5. That I can recall that in or about 2010 Reeaz Ali met me by chance in Nadi Town and said that he had some documents that he wanted to give to me about Anil Kumar's accident that involved the 2nd defendant's vehicle. I had told him that if it was to do with Anil Kumar then he had to deal with Anil Kumar and not me. Reeaz Ali did not have any documents with him even he met me in Nadi Town. He did not give me any documents to accept at all.

6. That Reeaz Ali could not have personally served any documents on Michael's Taxis and Tours Limited as it is only a legal entity.

7. That I deny all the allegations contained in the said Affidavit of Reeaz Ali that I did not accept the service of any documents from him as he has alleged in the affidavit or otherwise.

..."

[25] The Plaintiff in his affidavit in reply in paragraphs 5, 6 and 7 stated that:

"(....)

5. THAT as to paragraph 6 of the said affidavit I say that the Writ of Summons was served properly on the 2nd Defendant by the bailiff.
   
6. THAT as to paragraph 7 of the said affidavit I say as follows:
   

6.1 THAT I have been advised by my bailiff, Reeaz Ali that the said documents were served on the registered office of the second defendant and it was personally accepted by Mr Michael who refused to acknowledged the copy of the said Writ of Summons.

6.2 THAT I have also been advised by my solicitors that after receiving the said writ of summons from our bailiff, Mr Michael came to our solicitor's office to seek explanation as what this claim was about and he was advised by our solicitors office to see his solicitors for further explanation and action.

6.3 THAT my solicitors had further advised me that they had also served the said writ of summons on the second defendants insurance company (Tower Insurance) on 18th May 2009 and by their solicitors through the letter dated 7th July 2009 in paragraph 7 and 8, we were advised that the insurance company "will not defend the proceeding on behalf of the defendant and will advise the defendants accordingly". Copy of the letter dated 7th July 2009 from AK Lawyers is annexed hereto and marked as Exhibit B.

7. THAT as to paragraph 8 of the said affidavit I say the defendant was properly served and chose not to take any steps to defendant the action against it and should have properly complied with the Rules of the Court.

(...)"

[26] The Plaintiff filed two affidavits of service (AOS) of Reeaz Ali, the registered bailiff. First one was filed on 10 May 2010 in proof of service of writ of summons and acknowledgement of service wherein the bailiff states that he on the 23rd day of September 2009, personally served Michael's Taxis & Tours Limited (the second defendant) with a true copy of writ of summons and acknowledgement of service of writ of summons at Nadi. The bailiff farther stated in his AOS that Mr. Michael Fennech accepted service but refused to acknowledge the copy on the writ of summons. It is to be noted that the AOS does not indicate the location of service or whether the service was done at the registered office of the second defendant or the time of service. The second AOS was filed by the same bailiff on 20 January 2011 in proof of service of notice of assessment. In the second AOS, the bailiff deposes that he on 14 December 2010 at 9.00 am personally served the defendants with the copy of notice of assessment of special damages and general damages and that Michael Fenech accepted service for and on behalf of the second defendant and refused to acknowledge on the copy thereof. Here again, it is to be noted that the second AOS too does not indicate the location of service.

[27] Mr Michael Fenech denies service of any documents on him as alleged by the bailiff in his both AOS. For the purpose of verification of service the Plaintiff made an application to Court to call the bailiff in Court to give evidence regarding his service and his AOSs. The Court allowed his application to call the bailiff to give evidence on the issue of service.

[28] The bailiff, Reeaz Ali gave sworn evidence in Court in relation to his service and AOS. In evidence he sated how he served the documents on the second defendant on both occasions. He said he served the documents on Michael Fenech, director of the second defendant on both occasions at Sharma Street, Narewa Road, Nadi. He also said that he noted what Mr Michael Fenech told to him on the back of the writ of summons. [The writ of summons was marked and tendered as "Exhibit A" (which contains his notes)]. He also described the office of the second defendant and its surrounding and who and who were there when he went to serve the documents. Under cross examination the bailiff confirmed that he could remember how he served the documents on Mr Michael Fenech at the registered office of the second defendant.

[29] The bailiff gave clear evidence as to how and where he served the documents on Mr Michael Fenech on both occasion. His evidence was not shaken by the cross examination by the second defendant. Further his evidence cannot be incredible, for he said that he could not remember how he served the writ of summons on the first defendant. Above all, the second defendant had an opportunity to call Mr Michael Fenech to give evidence to counter the evidence given by the bailiff regarding the service. But the second defendant did not utilize that opportunity. I therefore accept the bailiff's evidence regarding service on the second defendant.

[30] I now come to the contention that the documents were not served at the registered office of the second defendant as it is a company. Pursuant to section 391.-(1) of the Companies Act, Cap 247, a document may be served on a company by sending it by post to the registered postal address of the company in Fiji, or by leaving it at the registered office of the company. Michael Taxis & Tours Limited, the second defendant is a limited company and having its registered office at Sharma Street, Narewa Road, Nadi. Mr Michael Fenech is the Managing Director of the company. The bailiff went to Sharma Street, Narewa Road, Nadi, being the registered office of the second defendant, saw Mr Michael Fenech and served the documents on him on both occasions and he refused to acknowledge. It is common ground that the second defendant having its registered office at Sharma Street, Narewa Road, Nadi. The documents have been served at the registered office of the second defendant on Mr Michael Fenech who happened to be the Managing Director of the second Defendant. It may be construed that the document was served by leaving it at the registered office of the second defendant. Hence there has been compliance with section 391.-(1) of the Companies Act. I therefore find that both the writ of summons and acknowledgement of service and the notice of assessment were properly served on the second defendant.

[31] As to defective AOS, it was submitted on behalf of the second defendant that AOSs filed by the Plaintiff are defective in that one of AOSs failed to indicate the location of service and the other one failed to indicate the time of service. Will defective AOS vitiate the proceedings?

[32] O. 65, r.8 of the HCR that deals with AOS. That rule provides that:

"Affidavit of Service (0.65, r.8)

Except as provided in Order 10 Rule 1 (3) (b) and Order 81 Rule 3(2) (b) and affidavit of service of any document must state by whom the document was served, the day of the week and date on which it was served, where it was served and how." (My emphasis).

[33] In term of O.13, r.8 (1) (b) of the HCR judgment shall not be entered against a defendant under this Order unless an affidavit is filed by the plaintiff or on behalf of the plaintiff proving due service of the writ on the defendant.

[34] To decide the issue whether defective AOS will nullify the proceedings, O.2, r.1 of the HCR become relevant. That rule states:

"Non – Compliance with rules (O.2, r.1)

1-(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein."(My emphasis).

[35] It is obvious that failure to mention the location of service or time of service in the AOS filed by the plaintiff would only be an irregularity which will not nullify the proceedings, or any document, judgment or order therein. Because, pursuant to O.2, r.1 of the HCR failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect shall be treated as an irregularity and shall not nullify the proceedings including judgment. The plaintiff has now filed amended AOSs. By doing so the plaintiff has cured the defects in his AOSs filed previously. I would therefore hold that the defective AOSs filed herein will not nullify the proceedings including the default judgment obtained against the second defendant in this matter.

[36] The default judgment in this matter has been obtained against the second defendant as it failed to file an acknowledgement of service and defence. Default in filing a defence is a condition upon which a default judgment is obtainable pursuant to O.13, r.2 of the HCR. I therefore find the default judgment against the second defendant in this case has been obtained regularly.

[37] Since I have decided that the default judgment is a regular one, the second defendant is not entitled to have it set aside as of right. However, the Court has unfettered discretion to set aside a default judgment if the three requirements are met, namely the defendant must show he was prompt in making the application, he has defence on the merits and setting aside will not prejudice the plaintiff or any other party. The Court's discretion to set aside is limited only by the justice of the case.

[38] I now endeavour to find whether the second defendant has met these three thresholds. Firstly, I will deal with the issue of promptness. The writ of summons and acknowledgement of service was served on the second defendant on 23 May 2009. The default judgment was entered on 29 June 2010. It is not clear when the default judgment was served on the second defendant. The notice of assessment of special damage and general damage was served on the second defendant on 14 December 2010 and ruling on assessment was delivered on 24 October 2011. Then the Plaintiff filed writ of Fiery Facias on 30 April 2012. The second defendant filed its application to set aside on 2 August 2012, some 2 months after the writ of Fiery Facias which was filed. The application of the second defendant to set aside the default judgment has been filed at the execution stage some two years after the default judgment was entered. The second defendant is a company. The writ of summons and notice of assessment were both served on its Managing Director, Mr Michael Fenech. Mr Michael Fennech in his affidavit admits that in or about 2010 Reeaz Ali met me by chance in Nadi Town and said that he had some documents that he wanted to give to him about Anil Kumar's (second defendant's driver) accident that involved the 2nd defendant's vehicle. The second defendant should have known that default judgment will be entered in default of defence. The second defendant had ample time between the date of default judgment-29 June 2010 and the date of writ of Fiery Facias-30 April 2012, but failed to attend to Court to face the claim. The second defendant had ignored the two summons-writ of summons + notice of assessment- served on it. Non service of writ of summons has been raised by the second defendant to overshadow its delay in making this application. In the circumstances I would say the second defendant was not prompt in making its application to set aside the default judgment. The delay has not been explained either.

[39] As to defence on the merits, the second defendant in its affidavit in support states:

1. That in the year 2006 the First Defendant was employed as a driver for the second defendant. He was employed to drive the second defendant's buses or licensed hire vehicles.
   
2. That on or about the 15th day of May 2006 the first defendant advised the second defendant's director that he had a court case in Ba Magistrates Court and required a day off from work. He also requested if he could take the second defendant's car.
   
3. That the second defendant had a motor vehicle registration number DQ 723 which was purchased by the defendant for the private use of its directors. The director of the defendant company authorised the first defendant to use the said vehicle for his personal use only for the purpose of travelling from Nadi to Ba Magistrates Court and return.
   
4. That on or about the 16th day of May 2006 the second defendant's director received a phone call from the Ba Police Station that the said motor vehicle was involved in an accident and had tumbled into a drain and that the passenger was injured.
   
5. That the first defendant had travelled to Ba for his private purpose. He did not use the said vehicle as an agent and or servant of the second defendant. He had taken a day off from work to travel to Ba Court. He was not on the way to BA Court when the accident took place.
   
6. The second defendant was not aware that the first defendant had a passenger in the said vehicle. It had not authorised the first defendant to carry any passengers (My emphasis).
   

[40] In order to set aside the default judgment the second defendant must satisfy the Court that it has defence on the merits that has real prospect of success. Concisely, the proposed defence of the second defendant is that on the day of accident (16 May 2006) the second defendant company authorised the first defendant to use the said vehicle for his personal use only for the purpose of travelling from Nadi to Ba Magistrates Court and return. The first defendant was not acting as an employee of the second defendant company. Therefore the second defendant is not liable for the accident. It would be strange to say that the second defendant granted day off on that day for the first defendant and permitted him to use the company vehicle his personal use only for the purpose of travelling from Nadi to Ba Magistrates Court and return. The second defendant did not deny that the first defendant was one of its employees at the time of the accident. In my view the defence depose in the supporting affidavit of the second defendant would not be a defence on the merits that has real prospect of success. Why the second defendant did permit the first defendant to use the company vehicle for his private use after allowing day off for him? There is nothing in Mr Michael Fennech's affidavit to explain this issue.

[41] The plaintiff's claim is based on the accident that happened on 16 May 2006. The default judgment was entered on 29 June 2010. The plaintiff might have got an impression that his case was concluded in June 2010. He would find difficulty in getting his witnesses after some 8 years of the accident if the default judgment is set aside. It would take some more years to bring the matter to trial stage if set aside. I am of opinion that the plaintiff would be prejudiced if the Court set aside the default judgment now.

[42] For all these reasons, I proceed to dismiss and struck out the second defendant's application to set aside the default judgment dated 29 June 2010 and the subsequent order made by the Master of the High Court (as then he was) Mr A Tuilevuka on 24 October 2011.

Costs
[43] The Plaintiff had to file affidavit in opposition and written submissions in these proceedings. He had made few appearances through his counsel to face the application to set aside. There was a hearing of the application and his counsel made oral submissions. I therefore taking all into my account assess the costs at $850.00 payable by the second defendant to the plaintiff.

Conclusion
The application filed on 2 August 2012 by the second defendant to set aside the default judgment dated 29 June 2010 in the action and the subsequent order made by the Master of the High Court Mr A Tuilevuka on 24 October 2011 is dismissed and struck out with the summarily assessed costs of $850.00 payable by the second defendant to the plaintiff.

M H Mohamed Ajmeer
Acting Master of the High Court

At Lautoka
03/03/14