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Bateriki v Pan Pacific Tours [2024] KIHC 29; Civil Case 33 of 2023 (26 August 2024)

IN THE HIGH COURT OF KIRIBATI

MISAPP 75 OF 2023 arising from
HIGH COURT CIVIL CASE 33 OF 2023

BETWEEN: Boutu Bateriki on his own behalf and on behalf of Teaibeti Travel Agency
Applicant

AND: Pan Pacific Tours

Respondent

Date of Hearing/Judgment: 26 AUGUST 2024

Appearances: Mrs Kiata Ariera for the Applicant

Banuera Berina for the Respondent (not present)

O R D E R

1. On 3/10/2019, a Writ of Summons numbered HCCC 65 of 2019 was filed by Counsel Taoaba against the Defendant, the applicant, in this miscellaneous application. An appearance was entered for the Defendant. The Defendant filed a request for further and better particulars, which they have not received, and the case was left idle.
   
2. The Writ of Summons concerning this case at hand, HCCC 33 of 2023, was served against the Defendant on 9 June 2023. This second case concerns the same issues between the same parties. The Defendant filed their appearance, but he was busy with Parliament, being a Parliamentarian, and overlooked filing his defence. On 5 September 2023, a Default judgment was entered against him and on behalf of his deceased mother, Aritaake. He was just served with this default judgment. On 10 October 2023, the Writ of FiFae was served upon him by the sheriff. On 20 October 2023, he filed his application to set aside the default judgment and Writ of Fifae. On 21 November 2023, Counsel Taoaba withdrew her case, HCCC 65 2019.
   
3. At the beginning of today's hearing, I considered whether the Counsel for the Respondent was notified of it, and the Affidavit of Service in the case file shows that he was informed. He was not present in court, so the hearing continued in his absence.
   
4. The Applicant, through Counsel, submitted reasons to support their application to set aside the default judgment and writ of fifae as stated below;

-The two Writs served against the Defendant by different lawyers have two amounts.

-This default judgment and writ of fifae concerning this case, HCCC 33 of 2023, has some irregularities. The Writ was against Boutu Bateriki on his behalf and on behalf of Teaibeti Travel Agency, while its default judgment was against Boutu Bateriki on his own behalf and on behalf of his mother, Aritaake, deceased. The Praecipe of Fieri Facias and Writ of Fieri Facias also contain Boutu Bateriki on his behalf and on behalf of his mother, Aritaake, deceased.

-The Applicant submitted that he has a defence as the Ministry of Health has not yet paid the claimed airfare. He made the bookings on behalf of the Ministry of Health. He would also like to invite them as a Third Party if given a chance.

- He would be prejudiced as he has a substantive defence.

- The Applicant referred to the case of KPA v Aribeta, MisApp 54/22 from HCCC 21/22 (5 May 2023), in which the court granted the setting aside and ordered the Plaintiff to provide further and better particulars.

ORDER

5. The Applicant’s submission was not opposed.
6. I am satisfied that the default judgment and writ of fifae were defective and that the Applicant has a substantive defence and would be prejudiced if this application is not granted. Therefore, the application to set aside is granted.
   
7. The Default judgment is set aside, together with the Writ of FiFae.
   
8. No order as to Cost.
   

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice