IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
[CIVIL JURISDICTION]

Civil Action No. HBC 335 of 2022

BETWEEN:

DOMINION FINANCE PTE LIMITED formerly known as DOMINION FINANCE LIMITED a limited liability company having its offices at 74 McGregor Road, Suva, Fiji Islands.
PLAINTIFF

AND
PYARA SINGH, residential address not known to Plaintiff, of C/-P.O. Box 8, Lautoka, Fiji Islands, Businessman.
DEFENDANT

Before			:	Master P. Prasad  
Counsels		:	Messrs Haniff Tuitoga for Plaintiff  
				Messrs S. Nand Lawyers for Defendant  

Date of Hearing	:	26 August 2024 
Date of Decision 	:	31 October 2024
			
RULING 

1.	The Defendant on 11 May 2023 filed a Summons supported by Affidavit seeking the following orders:
(i)	The Default Judgment entered on 17th day of February 2023 be set aside;
(ii)	All execution arising out of the said judgment be stayed;
(iii)	The Defendant be given unconditional leave to defend the within action;
(iv)	Costs of this action on Solicitor/Client basis;
(v)	Any further and other relief that this Honourable Court deems just and fit.   

2.	The Plaintiff claims that by letters dated 20 December 2018, a sum of $275,132.00 was lent to and accepted by the Defendant. The Defendant defaulted in repayments and after demand notices were sent to him, the Defendant’s solicitors informed the Plaintiff’s solicitors that the Defendant would be taking out a loan in order to pay the amount owing to the Plaintiff. The total amount owing as at 24 November 2022 (inclusive of interest, costs, charges, fees) was $526,981.02.  The Plaintiff filed the claim to recover the same amount together with interest and costs. 

3.	The writ was issued on 7 December 2022 and served on 9 December 2022 on the Defendant. The Defendant filed his Acknowledgement of Service on 22 December 2022. However, the Defendant failed to file and serve his Statement of Defence within the time specified by the High Court Rules. 

4.	The Plaintiff on 15 February 2023 sealed a default judgment for the liquidated sum of $526,981.02 with interest and costs to be assessed by the Court.

5.	Pursuant to order 19 rule 2, “where the plaintiff’s claim against a defendant is for a liquidated demand only, 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 final judgment against hat defendant for a sum not exceeding that claimed by the write in respect of the demand and for costs, and proceed with the action against the other defendants, if any.” 

6.	The Counsel for the Defendant in his written submissions alludes to the fact that this default judgment was entered due to non-appearance by both the Defendant and his legal counsel and as such is irregular. These facts are incorrect. 

7.	In fact, it is clear from paragraph 3 above that the process was duly served on the Defendant prior to sealing of the default judgment and the Defendant failed to file and serve his Statement of Defence. Thus, the default judgment entered on 15 February 2023 is regular. 

8.	The Court now has to consider whether the Defendant has a meritorious defence. 

9.	Order 19 rule 9 provides the Court discretion on such terms as it thinks just to set aside or vary any judgment entered in pursuance of Order 19. 

10.	In Native Land Trust Board v Khan [2012] FJCA 55, Chandra JA in dismissing the appeal, stated as follows in relying on the following decisions dealing with a similar issue:

“25. …The Court has a very wide discretion in an application of this nature but it is also guided by certain well known principles as seen from judgments which have dealt with similar situations.
26. In Bank of Credit and Commerce International (Overseas)Limited (in liquidation) v Habib Bank Ltd (1998) 4 AER 753 it was held that the court would not set aside a default 

judgment which suffered from irregularities if there was sufficient evidence before the court from which it was able to conclude that the substantive content of the judgment was right.
27. In  Alpine Bulk Transport Co  Inc. v The Saudi Eagle (1986) 2 Lloyd's Rep. 221 it was held that the Court will want to be satisfied that there are sufficient merits in the defence which the defendant wishes to present before it will set the judgment aside. There is no point in setting it aside if the defendant is almost certainly going to lose anyway.
28. In Pravin Gold Industries Ltd v The New India Assurance Co. Ltd – Civil Action No.250 of 2002 it was stated that it is not sufficient to show a merely "arguable" defence that would justify leave to defend under order 14; it must both have "a real prospect of success" and "carry some degree of conviction". Thus the Court must form a provisional view of the probable outcome of the action.”
11.	Courts approach to applications to set aside judgments in default is discussed in detail in Bank of Credit and Commerce International (Overseas)Limited (in liquidation) v Habib Bank Ltd (1998) 4 AER 753 where it was stated that:
“If there was nothing irregular about the writ or the judgment, but the defendant wants to have the judgment set aside in order to defend the action, the court has a discretion which it will exercise on principles laid down by various cases, especially Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc, (The Saudi Eagle) [1986] 2 Lloyd’s Rep 221. The court will want to be satisfied that there are sufficient merits in the defence which the defendant wishes to present before it will set the judgment aside. There is no point in setting it aside if the defendant is almost certainly going to lose anyway. The Saudi Eagle and other cases give guidance about what level of merits the defendant needs to show.”

12.	The general principles laid down in Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc, (The Saudi Eagle) [1986] 2 Lloyd’s Rep 221 at page 223 as extracted from the speeches in Evans v Bartlam [1937] A.C. 473 are as follows:

(i)	a judgment signed in default is a regular judgment from which, subject to (ii) below, the plaintiff derives rights of property;

(ii)	the Rules of Court give to the Judge a discretionary power to set aside the default judgment which is in terms “unconditional” and the Court should not “lay down rigid 

rules which deprive it of jurisdiction” (per Lord Atkin at p.486);

(iii)	the purpose of this discretionary power is to avoid the injustice which might be caused if judgment followed automatically on default;

(iv)	the primary consideration is whether the defendant “has merits to which the Court should pay heed” (per Lord Wright at p. 489), not as a rule of law but as a matter of common sense, since there is no point in setting aside a judgment if the defendant has no defence and if he has shown “merits” the -…Court will not, prima facie, decide to let a judgment pass on which there has been no proper adjudication [ibid.p. 489 and per Lord Russel of Killowen at p. 482].

(v)	Again as a matter of common sense, though not making it a condition precedent, the Court will take into account the explanation as to how it came about that the defendant – …found himself bound by a judgment regularly obtained to which he could have set up some serious defence [per Lord Russel of Killowen at p. 482]. …

In our opinion, therefore, to arrive at a reasoned assessment of the justice of the case the Court must form a provisional view of the probable outcome if the judgment were to be set aside and the defence developed. The “arguable” defence must carry some degree of conviction. [underlying mine]

13.	In his written submissions, the counsel for the Defendant submits the following:
“a. Whether the Defendant has a meritorious defence…
The Plaintiff having claimed for credit agreement in small claim and lost claimed again in the magistrate court. The defendant has strong defence that the defendant did not enter into any credit contract…The defendant has said that he has a valid and meritorious defence and counter-claim in this matter, which should be fairly adjudicated in the interests of justice.
b. Explanation as to why the Defendant let the judgment to be entered by default.
…the reason why the Defendant did not appear in court was because he unintentionally overlooked the returnable date and hence had gone abroad. While on the next court date, he instructed one of his staff to attend court but then judgment was 

entered against him. The defendant submits that the writ was served on the wrong company which he is also a shareholder to. The defendant worked for that company and not the company which is stated in the writ and regardless of that error, the defendant did make an effort to instruct an employee of his to attend court. The defendant has a valid defence. 
c. Whether Plaintiff would suffer irreparable harm if the judgment is set aside.
The Defendant submits that the plaintiff will not suffer any injury or damage if judgment is set aside because it is bringing a claim that is not entirely true to the Honourable Court so as to mislead the court. The defendant still stand by their defence that he plaintiff did not completer the work that he was required to do as per their agreement…the Plaintiff himself …did not complete the work required for him and now he demands to be paid for something that was supposed to do but did not.” 

14.	The above written submissions by the Defendants counsel highlight facts that are completely different from those in the present case.  

15.	When parties elect to have a matter assessed totally on written submissions, a court will expect the parties to at least file submissions based on correct facts and relevant applicable legal principles to support their case. 

16.	The conduct of the Defendants counsel in submitting unhelpful, if not misguided submissions reflect the counsel’s disinterestedness and lack of zest in preparation, and borders on disrespect to the court. 

17.	The Defendant in his Affidavit in Support states that he was served with a copy of the writ, but he could not give his lawyers instructions as he had to travel to Canada for medical treatment. The Defendant also states that his lawyers were out of the country on a legal vacation. 

18.	The statement of defence in this matter was due on 8 February 2023 and the Default Judgment was entered on 15 February 2023. 

19.	There is no evidence before the Court to show that the Defendant’s lawyers were away overseas.

20.	Further, the medical reports that the Defendant has attached to his Affidavit in Support are dated 13 March 2023 (pharmacy receipt), 16 March 2023 (post operative care instruction sheet) and 22 March 2023 (clinic visit summary). All these documents are from dates after the statement of defence was due and the default judgment was entered. 

21.	Additionally, the Defendant asserts in his Affidavit in Support that the loan was issued to Lautoka General Company Pte Limited and not to him personally. 

22.	The draft statement of defence attached to his supporting affidavit is merely a bare denial, asserting only that the Defendant is not the Plaintiff's customer and that it was Lautoka General Transport Pte Limited that borrowed from the Plaintiff.

23.	The Defendant has not provided any substantial evidence to support the claim that he did not borrow the money and that the money was borrowed by Lautoka General Transport Pte Limited instead. 

24.	On the other hand, the Plaintiff has annexed in its Affidavit in Opposition a copy of the loan agreement dated 20 December 2018 between the Plaintiff and the Defendant. The borrower in that agreement is the Defendant and the account number is stated as 34985-44132. 

25.	Moreover, the Plaintiff has also annexed copies of letters dated 22 February 2021 and 29 December 2021 from the Defendants previous lawyers Sherani & Co which in essence state that the Defendant would be taking a property loan to pay the Plaintiff. These letters reflect the same agreement and account number. Nowhere in these letters does the Defendant dispute that he does not owe the Plaintiff or that the loan was not taken by him. 

26.	Therefore, the suggested defence that the loan was not taken by the Defendant does not have any prospect of success. 

27.	The Defendant has also not been able to explain why there was a delay between 15 February 2023 (date of default judgment) to 11 May 2023 (date of filing of Defendant’s application to set aside default judgment). 

28.	In light of the above, it is clear that the Defendant has not adduced any arguable issue in his affidavit. There are no satisfactory explanations for the Defendants failure to file his statement of defence on time and he has not shown any defence on merits in his affidavits. The Defendant waited for further 3 months after the Plaintiff obtained default judgment to set aside the same. Setting aside will thus prejudice the Plaintiff. 

29.	Therefore, the summons filed by the Defendant ought to be dismissed with costs to the Plaintiff. 

30.	Accordingly, I make the following orders:

(a)	Summons filed by the Defendant on 11 May 2023 to set aside the default judgment is dismissed; and 

(b)	Defendant is ordered to pay summarily assessed costs in the sum of $2000.00. 

P. Prasad
Master of the High Court

At Lautoka
31 October 2024