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Green Pak Supplies (Fiji) Pte Ltd v Sofianopoulos [2023] FJHC 333; HBC206.2021 (18 May 2023)

IN THE HIGH COURT OF FIJI
(WESTERN DIVISION) AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 206 OF 2021


BETWEEN : GREEN PAK SUPPLIES (FIJI) PTE LIMITED a limited liability company having its registered office at Level 1, Carcity Building, Navo, Nadi

PLAINTIFF


AND : JOHN SOFIANOPOULOS of Amley Rise Lysterfield VIC 3156, Australia.

1ST DEFENDANT


AND : JIMM SOFIANOPOULOUS aka DIMITROIS SOFIANOPOULOS of Amley Rise Lysterfield VIC 3156, Australia

2ND DEFENDANT

BEFORE : Hon. Mr. Justice Mohamed Mackie


APPEARANCES : Mr. Rupesh Singh with Ms. A. B. Swamy, for the Plaintiff

Mr. Boseiwaqa J., for the 1st and 2nd Defendants


DATE OF HEARING : 30th September 2022.


WRITTEN SUBMISSIONS : On 30th September 2022 by both parties.


SUPPLEMENTARY SUBMISSIONS: On 17th November 2022 by the Defendant


REPLY SUBMISSIONS : On 17th January 2023 by the Plaintiff.


DATE OF RULING : 18th May 2023 @ 10.30 am

JUDGMENT
(Judgment by Default against 1st and 2nd Defendants pursuant to Order 19 Rule 6 of the High Court Rules, 1988)


  1. INTRODUCTION:
  1. This is an action commenced by the Plaintiff by way of its Writ of Summons and Statement of Claim filed on 4th October 2021 against both the defendants seeking the following reliefs.
    1. Payment of the said sum of $ 115,978.00 (One Hundred Fifteen Thousand Nine Hundred and Seventy Eight Dollars).
    2. Interest on the monetary award.
    1. Damages.
    1. Any other relief this Honourable Court seems just.
    2. Costs of this action on Solicitor/ Client indemnity basis.
  2. The leave of the Court being sought to issue proceedings against the Defendants and serve the Writ of Summons and the pleadings on them out of the jurisdiction in Australia, it was granted by the Order made by Justice. A. Tuilevuka on 29th September 2021. Accordingly, same were, reportedly, served on both the defendants as per the Affidavits of services filed on 6th October 2021.
  3. The acknowledgment of service and the notice of appointment of Solicitors on behalf of both the defendants were filed on 10th November 2021. But, both of them failed to file and serve the Statement of Defence within the stipulated time period as required by the High Court Rules 1988.

Interlocutory Summons:


  1. As a result, the Solicitors for the Plaintiff on 14th March 2022 preferred the Interlocutory Summons at hand for default judgment, seeking for the following orders:-
    1. That judgment to be entered in favour of the Plaintiff as follows.
      1. Payment of the said sum of $ 115,978.00 (One Hundred Fifteen Thousand Nine Hundred and Seventy Eight Dollars).
      2. Interest on any monetary award.
      3. Damages. ( to be assessed)
      4. Any other relief this Honourable Court seems just.
      5. Costs of this action on solicitor/client indemnity basis.
  2. This Application for Judgment by default was made pursuant to Order 19 Rule 6 of the High Court Rules, 1988, supported by an Affidavit sworn on 9th March 2022 by ANJANI DEVI PRASAD, an Accountant of the Plaintiff Company. The Affidavit was filed along with annexures marked as “A” to “D”.
  1. THE LAW:
  1. Order 19 Rule 6 of the High Court Rules, 1988 deals with Default of Defence in mixed claims where it states as follows-

“6. Where the plaintiff makes against a defendant two or more of the claims mentioned in rules 2 to 5, and no other claim, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, enter against that defendant such judgment in respect of any such claim as he would be entitled to enter under those rules if that were the only claim made, and proceed with the action against the other defendants, if any”.


  1. ANALYSIS & DETERMINATION:
  1. The issue for determination hereof is “Whether the Plaintiff is entitled for a Judgment on its substantive Claim pursuant to Order 19 Rule 6 of the HCR owing to the default on the part of the defendants to file and serve their Statement of defence?
  2. On perusal of the contents of the Statement of Claim and those of the annexures filed along with the Affidavit in support of the Interlocutory Summons, and on consideration of the nature of the Application and the substantive claim before me, I stand convinced that the plaintiff is entitled to have a default judgment entered under this provision.
  3. The Plaintiff was and is a limited liability Company engaged in Constructions works. The Defendants, during the time material to this action were directors of an entity called “Extreme Sport Fishing (Fiji) Limited” trading as “Extreme Sport”.
  4. The claim hereof has arisen out of a Construction Agreement entered into on 12th & 14th September 2019 between the Plaintiff Company and the Defendants representing the said entity for the construction of a House for the Defendants for a total sum of $223,378.00 (Two Hundred Twenty Three Thousand Three Hundred Seventy Eight Dollars.
  5. Plaintiff states that at the defendants induced the plaintiff to work and carry out the said construction works on credit basis and had fraudulently represented to the plaintiff that the Company represented by the Defendants held a responsible position, was in good financial position and that it can be safely trusted with works on credit as averred in paragraph 4 of the statement of claim.
  6. That, acting on the representation made by the defendants, the plaintiff continued to construct the House on credit basis and also carried out variation works. But later, in their process to recover the payments, discovered that the representations made by the defendants were false and the defendant’s Company had already been wound up on 21st October 2016.
  7. However, pursuant to a Memorandum of Agreement, the defendant had agreed to pay a sum of $43,378.00 to which a further sum of $72,600.00 was added on account of variation of works making the total payable amount by the defendants unto the plaintiff in a sum of $ 115,978.00.
  8. The said amount is claimed by the plaintiff being the overdue amount for the construction works carried out for defendants. The plaintiff also claim interest and damages.
  9. Learned Counsel for the defendants, who appeared on 29th April 2022, being the date for supporting of the Interlocutory Summons by the Counsel for the plaintiff, obtained leave to file papers for withdrawal as Solicitors. However, on the subsequent date intimated that they will continue to act for the defendants and obtained leave to file Affidavit in opposition. Subsequently, same being filed on 28th July 2022, reply thereto by the plaintiff was filed on 31st August 2022.
  10. Accordingly, both the learned Counsel were orally heard and they have filed written submissions as well.
  1. DETERMINATION:
  1. The Order 19 Rule 6 permits the Court to enter judgment on account of the default of the defendant/s to file and serve the Statement of defence. If the Court is satisfied of the claim, judgment can be entered as sanctioned by the above Order 19 and Rule6 of the HCR.
  2. At the time of hearing, counsel for the defendants pointed out that there was no default judgment so far entered against the defendants. At that stage default judgment was yet to be entered. It is after the service of the default judgment on the defendants, they can rightfully come before the Court under Order 19 Rule 9 of the HCR seeking to set aside the default judgment and leave to file statement of defence, if the default judgment is set aside.
  3. When moving under Order 19 Rule 9 to set aside, the defendants are at liberty to adduce the reasons for the failure to file the Statement of defence within the time given and also can show that they have meritorious defence by filing a draft copy of the proposed Statement of defence, together with the Affidavit in support for the said setting aside application.
  4. Order 19 Rule 9 of the HCR states as follows.

“ 9. The Court may , on such terms as it thinks just , set aside or vary any Judgment entered in pursuance of this Order”


  1. The arguments advanced by the Counsel for the Defendants orally and in writing , in my view, are best suited to be considered at a hearing of the setting aside Application by the defendants under order 19 Rule 9 of the HCR 1988. The papers already filed by the Defendants can be relied on for that purpose, however subject to filing of any supplementary Affidavits, if they wish to.
  1. CONCLUSION:
  1. I am satisfied that the plaintiff is entitled for a judgment pursuant to Order 19 Rule 6 of the High Court Rule 1988 owing to the failure of the defendants to file and serve their Statement of Defence within the prescribed time period.
  2. The 1st and 2nd Defendants have failed to file and serve the Statement of Defence and therefore in absence of the Statement of defence, I have no alternative but to accede to the Plaintiff’s application before court for the entry of the Judgment by Default as moved by the Interlocutory summons filed on 14th March 2022.
  3. Accordingly, I grant the orders for judgment by default in favour of the Plaintiff for a sum of $ 115,978.00 (One Hundred Fifteen Thousand Nine Hundred Seventy Eight Dollars) as prayed for with the interest at the rate of 6% per annum payable from 4th October 2021 until the said amount is fully paid and settled. I am not inclined to award damages as prayed for, as I find it to be unspecified and unsubstantiated. However, a sum of $1000.00 (one thousand Dollars) shall be paid by the defendants unto the plaintiff being the summarily assessed costs.
  4. l now proceed to make the following final orders:
  1. FINAL ORDERS:
    1. A Judgment is hereby entered in favour of the Plaintiffs against the 1st and 2nd defendants for a sum of $ 115, 978.00 payable jointly and severally.
    2. The Plaintiff is entitled for interest on the said sum at the rate of 6% payable from 4th October 2021 till the said sum is fully paid and settled.
    1. The defendants shall pay the plaintiff a sum of $1000.00 being the summarily assessed costs.
    1. This judgment shall be sealed and served forthwith.
    2. The defendants are at liberty to move the Court under Order 19 Rule 9 of the High Court Rules of 1988.

A.M. Mohamed Mackie
Judge


At High Court Lautoka this 18th day of May, 2023.


SOLICITORS:
For the Plaintiff: Messrs Patel & Sharma, Barristers & Solicitors
For the Defendant: Messrs Toganivalu Legal, Barristers & Solicitors


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