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P.R.A Contracting (Fiji) Company Ltd v Mishra [2012] FJMC 177; Civil Action 59.2009 (24 July 2012)

IN THE RESIDENT MAGISTRATE'S COURT
WESTERN DIVISION AT NADI
CIVIL JURISDICTION

NADI CIVIL ACTION NO. 59 Of 2009

BETWEEN:

P.R.A CONTRACTING (FIJI) COMPANY LIMITED a duly
Incorporated limited liability Company having its registered office at Nadi
PLAINTIFF

AND:

SUNIL PRASAD MISHRA trading as SUPER CONSTRUCTION & INTERIORS
DEFENDANT

Messrs Rams Law for the Plaintiff
Messrs Gordon & Co for the Defendant

Date of Ruling: 24.07.2012

RULING [on setting aside]

BACKGROUND

1. This is an application by the Defendant to set aside a judgment made in default against him on 2nd August 2011.

2. Plaintiff filed Writ of Summons on 23 April 2009 claiming for $26,580.48 being the outstanding amount on account of supply of electrical goods and providing electrical services to the defendant between on or about 5 August 2007 and on or about 19 November 2007.

3. The Statement of Defence was filed on 7th July 2009 and served on the Plaintiff.

4. After several adjournments the matter was finally set for hearing on 2nd August 2011.On the hearing day neither the Defendant nor his counsel appeared in court. As such counsel for the Plaintiff made application to strike out the Statement of Defence and moved the matter be taken for formal proof.

6. Accordingly, on the same day i.e.2nd August 2011 the matter was formally proved and judgment entered against the Defendant.

THE LAW ON SETTING ASIDE DEFAULT JUDGMENTS

7. It is the trite law that that in setting aside applications, the Court has discretion. Scutt J canvassed the issue in much detail in Nand v Chand [2008] FJHC 310; HBC223.2007L (7 November 2008).

8. 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.

9. 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.

i) Delay and in this respect reasonable time means a time reasonable in all the circumstances see: Monkland v Jack Barclay Ltd;

ii) 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"

ii) Prejudice to the parties.

10. Without fettering this discretion, the court has laid down a guiding criteria or test for exercising the discretion judicially. However, the overriding:-

"Principle obviously is that unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedures" Evans V Bartlam [1937] A.C. 473 at 480 per Lord Atkin.

11. Order XXX Rule 5 of the Magistrates Court Rule provides as follows:

"Any judgment obtained against any party in the absence of such party may, on sufficient cause shown, be set aside by the court upon such terms as may seem fit".

DETERMINATION

12. The Plaintiff had obtained a judgment by default after formal proof on 2nd August 2011.

13. On 15th November 2011 the Defendant filed a motion to set aside default judgment through his new Solicitors Gordon & Co. Up to the date of default judgment his Solicitors on record were Vuataki Law. Along with the motion the Defendant also filed an affidavit sworn on 13 October 2011 together with annexure marked as "SPM 1" being a copy of Mr. Gordon's medical procedure statement for his medical operation held on 27th July 2011 in New Zealand.

14. The application to set aside the default judgment has been made pursuant to Order XXX Rule 5 of the Magistrates Court Rule. Hence the Defendant must show sufficient cause in order to set aside the default judgment obtained against him in his absence.

15. Both the parties also filed written submissions for this purpose. In order to arrive at a determination I have carefully considered the affidavits and documents and their respective written submissions filed for the purpose of this application.

16. The Defendant under Paragraph 6 of his affidavit states that:

"THAT unfortunately Mr. Gordon required an urgent medical operation and had flown out to New Zealand on the last week of July 2011 and his operation was performed on 27th July 2011 and thereafter he stayed in New Zealand for two weeks until medical condition improved enough to fly back to Fiji".

17. He further states under paragraph 9 of his affidavit that:

"THAT I have a good case as the Plaintiff is claiming for electrical services supplied in the sum of approximately $27,000.00 which I deny. I did not place an order for such services with the Plaintiff. The Plaintiff has not shown by way of particulars any invoice or order numbers or description of the type of electrical services it alleges was supplied at my request".

18. The Plaintiff filed an affidavit in opposition to the application to set aside the default judgment. David Buke, General Manager has sworn the affidavit on behalf of the Plaintiff Company. He had also marked as exhibit "DB 1- DB 4" along with his affidavit sworn on 20th December 2011. DB 2 being the order given by the Defendant to the Plaintiff to repair all electrical wires as par inspection on Yard Road etc. DB 4 being the 6 Tax Invoices given to the Defendant for payment after completion of each job. The Defendant placed order for electrical wire repairs on 11th October 2007.

19. The Defendant in the Statement of Defence filed by Messrs Vuataki Law, which is now struck out, simply denied the claim of the Plaintiff without adducing any defence. Now the Defendant says for the purpose of this setting aside application that the invoices do not match with the order placed.

20. This is the first time the Defendant has taken the stand that the invoices do not match with the order placed by him. It is to be noted that the Defendant is not firm in his defence against the claim of the Plaintiff.

21. In a setting aside application the Defendant must purge his default of appearance on the day the default judgment was entered against him i.e. 2nd August 2011.

22. The reason, according to him, for non-appearance in court on 2nd August 2011 was that his new counsel had flown out to New Zealand for an urgent medical treatment. Interestingly, the Defendant has filed notice of change of solicitors on 15th November 2011, the date he filed the setting aside application. At all material times before 15th November 2011 his counsel on record was Messrs Vuataki Law. In other word the Defendant's counsel on record as at 2nd August 2011 was Messrs Vuataki Law, not Messrs Gordon & Co. Therefore the Defendant cannot rely on the medical report of Mr. Gordon. The Defendant must explain to court the reason why he failed to appear in court on 2nd August 2011.

23. The Defendant did not offer any explanation for his non-appearance on 2nd August 2011, date on which the default judgment against him was entered.

24. I am also not satisfied that the Defendant's affidavit show that he has a defence on the merits. The Defendant has failed to show sufficient cause to set aside the default judgment entered against him on 2nd August 2011.

25. For the foregoing reasons, I am not satisfied with the affidavit filed along with the application to set aside the default judgment. Accordingly I proceed to strike out and dismiss the application to set aside the default judgment entered against the Defendant on 2nd August 2011 with the cost of $450.00 which is summarily assessed.

Orders:

(i) The application to set aside the default judgment entered against the Defendant on 2nd August 2011 is struck out and dismissed; and

(ii) The Defendant must pay cost to the Plaintiff in the sum of $450.00 which is summarily assessed.

M H Mohamed Ajmeer
Resident Magistrate

At Nadi
24th of July, 2012.