N7046

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
		
	WS NO.1002 OF 2016

BETWEEN:
PAUTHTHUWADURA AJITH KUMARASINGHE
Plaintiff

AND:
BHUIYA ENTERPRISES LIMITED
Defendant

Waigani:  David, J
2017:  10 & 25 April

PRACTICE AND PROCEDURE – application for leave to file defence and cross-claim out of time – considerations for grant or refusal – application granted - National Court Rules, Order 1 Rules 7,  15(1) and (2) and Order  8 Rule 23(1) .

Cases cited:

Davis v David Tasion (1989) SC364
Joe Tipaiza & Ors v James Yali & Ors (2005) N2971
Kenuai v Puri (2010) N3906
Kandaso v Akap (2000) N1993
Koopa Yangal and Others v Henry Tokam and The State [1996] PNGLR 275  
POSF Board v ICBM Industries Limited (2006) SC1315     	
Pyali v Kabilo (2003) N2492.
Tima v Korohan (2006) N3045

Counsel:

P H Pato, for the Plaintiff 
R Joseph, for the Defendant

RULING

25th April, 2017

1.     DAVID J: INTRODUCTION: This is a ruling on two motions, one each moved by each party which are both contested.  The first one is the plaintiff’s application for default judgment filed on 2 December 2016 and the other is the defendant’s filed on 23 December 2016 seeking leave to file and serve its defence and cross-claim on the plaintiff out of time.  

2.	The plaintiff’s amended notice of motion filed on 5 December 2016 was withdrawn with leave of the Court at the hearing making it possible for him to move his application for default judgment. 

BRIEF BACKGROUND

3.	A brief chronology of the background circumstances would be useful in the discussions.  The plaintiff’s action is based on a written contract which was entered between Ram Auto Dealers Limited and the defendant company on 3 April 2014 (the contract) whereby the shares in Ram Auto Dealers Limited and the assets of that company were sold to the defendant company for K1.6 million (the purchase price).  It is alleged that the defendant breached the contract when it; failed to pay in full the purchase price as a sum of K129,908.41 was outstanding;  failed to pay K200,000.00 on the first day of each month from May to October 2015; and failed to pay the costs of repatriation and salaries of foreign employees unlawfully terminated totalling K23,830.00.  The plaintiff therefore claims the sum of K129,908.41 being balance of the purchase price outstanding; damages for breach of contract and loss of income in new business opportunities; general damages for anxiety, depression and stress; interest and costs.  The plaintiff’s writ of summons endorsed with a statement of claim (the writ) was issued on 18 August 2016 and allegedly served on the defendant on two occasions, first on 31 August 2016 and second on 1 September 2016.  The defendant then filed its notice of intention to defend the action on 12 September 2016 and filed its defence and cross-claim on 22 November 2016. 

DEFENDANT’S APPLICATION SEEKING LEAVE TO FILE DEFENCE AND CROSS-CLAIM OUT OF TIME

4.	I will deal with the defendant’s application first as its determination will decide whether or not I should deal with the plaintiff’s application.  The defendant relies on the affidavit of Gias Uddin Bhuiyan sworn on 15 December 2016 and filed on 23 December 2016.

5.	In contesting the defendant’s application, the plaintiff relies on the affidavits of:

(a)	Benjamin Tovili sworn on 2 November 2016 and filed on 4 November 2016;
(b)	Peter Hai Pato sworn on 18 November 2016 and filed on 2 December 2016; 
(c)	Steven Kual sworn on 18 November 2016 and filed on 2 December 2016;
(d)	himself sworn on 10 February 2017 and filed on 13 February 2017. 

6.	I have considered the parties’ evidence and their submissions.

Service of writ of summons

7.	In his affidavit, Mr Pato states that the writ was served on the defendant on two occasions; first, on 30 August 2016 and the second, on 1 September 2016. Reliance was placed on the affidavit of Mr Tovili in that regard. 

8.	In his affidavit, Mr Tovili states that he first served the writ on the defendant on 30 August 2016 at about 12:38 pm through its lawyer namely, George Pera at the Lamana Hotel on the instruction of a person he had encountered at the defendant’s registered address at Allotments 10, 11 and 12 Section 137, Mokara Road, North Waigani, National Capital District and who appeared to him to be the Manager earlier that day. Mr Pera accepted service and acknowledged service by signing the service form (annexure “C” of his affidavit).  Mr Bhuiyan however states that Mr Pera is the defendant’s accountant.

9.	A copy of an extract of the defendant obtained from the Investment Promotion Authority on 2 November 2016 which is annexure “A” to Mr Tovili’s affidavit shows that Allotments 10, 11 and 12 Section 137, Mokara Road, North Wagani in the National Capital District is the registered office as well as the address for service for the defendant.   Mr Bhuiyan confirms that fact.

10.	However, he was later instructed by the plaintiff’s lawyers to serve the writ at the registered office of the defendant which he did on 1 September 2016 by placing a copy of the writ on a counter situated on the right side of the main entrance of the wholesale and left because the person he identified as the person he had encountered the other day refused to accept service.  

11.	Subject to the exceptions mentioned in Order 6 Rule 1, an originating process must be served personally on a defendant:  Kandaso v Akap (2000) N1993; Tima v Korohan (2006) N3045; Kenuai v Puri (2010) N3906.  It is mandatory.  The term “originating process” means a writ of summons or an originating summons or where a cross-claim is made against a person not previously a party to the proceedings in which a cross-claim is made, the cross-claim:  Order 1 Rule 6(1) (Interpretation) of the National Court Rules.      

12.	Order 6 Rule 3 states how personal service can be effected on an individual and a corporation.  With regard to service of a corporation, Order 6 Rule 3(2) and (3) apply.

13.	The methods of service of documents including a writ of summons on companies in legal proceedings are set out in Section 431(1) of the Companies Act, 1997 and they are:

(a)	By delivery to a person named as a director or the secretary of the company on the register;
(b)	By delivery to an employee of the company at the company's head office or principal place of business;
(c)	By leaving it at the company's registered office or address for service;
(d)	By posting it to the company's registered office, or address for service, or postal address;
(e)	By serving it in accordance with any directions as to service given by the court having jurisdiction in the proceedings;
(f)	In accordance with an agreement made with the company; or
(g)	By serving it at an address for service given in accordance with the rules of the Court having jurisdiction in the proceedings or by such means as a solicitor has, in accordance with those rules, stated that the solicitor will accept service.”

14.	According to Section 431(2) of the Companies Act 1997, the methods of service specified in subsection (1) are the only methods by which a document in legal proceedings may be served on a company in the country.

15.	Personal service will be effected by adopting any of the methods of service specified in Section 431(1).

16.	Order 6 Rule 8 of the National Court Rules permits acceptance by a solicitor of any originating process so long as he has his client’s instructions to accept service of the originating process. The word “solicitor” means a person admitted to practise as a lawyer under the Lawyers Act 1986:  Order 1 Rule 6 of the National Court Rules.   Acceptance by a solicitor of an originating process on behalf of the company would complement Section 431(1)(g) of the Companies Act 1997.

17.	It is clear from the evidence before me that the defendant may have been served the writ personally on 30 August 2016.  There is however some uncertainty as to whether Mr Pera is actually a lawyer because Mr Bhuiyan states that Mr Pera is the defendant’s accountant.   The service form also shows that Mr Pera received the writ in his capacity as attorney.  I have no doubt however that service was properly effected on 1 September 2016 in accordance with the method specified in Section 431(1)(c).    

18.	The defendant filed its notice of intention to defend the action on 12 September 2016.   

19.	According to Order 6 Rule 2(3) of the National Court Rules, where a defendant serves a notice of intention to defend, the originating process, in this case the writ, shall be taken to have been served upon a defendant personally because the filing of his notice of intention to defend will waive any irregularity as to how the writ was served:  Pyali v Kabilo (2003) N2492.   The filing of the notice of intention to defend has regularised any issue regarding service.   I therefore find that the defendant was served with the writ on 30 August 2016.

20.	Under Order 8 Rule 4(1)(a) of the National Court Rules, the time limit for filing a defence is within 44 days after service of the writ.  This includes the 30 days allowed for the filing of a notice of intention to defend in accordance with Order 4 Rule 11(b)(i) of the National Court Rules and the 14 days allowed for the filing of a defence in accordance with Order 8 Rule 4(1)(a) of the National Court Rules.

21.	According to Order 12 Rule 25(b) of the National Court Rules, a defendant will be in default for the purposes of obtaining default judgment where he is required to file a defence and the time for him to file his defence in accordance with that rule has expired but he has not filed his defence.

22.	The time for filing a defence may be extended by an order of the court or by consent without an order of the court under Order 1 Rule 15 of the National Court Rules: POSF Board v ICBM Industries Limited (2006) SC1315.  Obviously, the plaintiff has not consented to the filing of the defendant’s defence and cross-claim out of time which he could have done under Order 1 Rule 15(3), hence the prosecution of this application.

23.	According to Order 8 Rule 38(2) of the National Court Rules, a cross-claimant may file a cross-claim within the time fixed for filing his defence.

24.	In the present case, the time for filing a notice of intention to defend and defence by the defendant started running from 30 August 2016.  The defendant was required to file its; notice of intention to defend the action by 30 September 2016; and its defence by 14 October 2016.

25.	The defendant filed its notice of intention to defend the action on 12 September 2016 so it was filed within time.   However, it failed to file its defence by 14 October 2016:  Affidavit of Steven Kual. 

26.	The defendant filed its defence and cross-claim on 22 November 2016.  Clearly, and it is conceded by the defendant that, this was way out of time by more than a month, i.e., by about 38 days.

27.	Order 8 Rule 23(1) of the National Court Rules applies where a defendant fails to file its defence within the 14 day period allowed under Order 8 Rule 4(1)(a) of the National Court Rules.  The rule states:

“(1)	The pleadings on a statement of claim shall, unless the Court otherwise orders, be closed, as between any plaintiff and any defendant, on the date of expiry of the last of the times fixed by or under these Rules for filing a defence or reply or other pleading between those parties on the statement of claim….”

28.	A defence filed after the close of pleadings is invalid unless leave is obtained: Koopa Yangal and Others v Henry Tokam and The State [1996] PNGLR 275.  

29.	The defendant’s defence and cross-claim was filed out of time without leave so it is invalid. 

Leave to file defence and cross-claim
Defendant’s submissions

30.	The defendant through its counsel, Mr Joseph states that having realised that the defence and cross-claim already filed on its behalf was invalid, it proceeded to file this application.

31. 	It was submitted that the plaintiff’s statement of claim was pleaded badly and should be dismissed for lack of particularity.

32.	In addition, it was submitted that the application be granted on the basis that sufficient cause has been shown as to why it failed to comply with the time limitation period provided by the National Court Rules within which to file its defence and cross-claim.  The defendant contends that:

(a)	it has demonstrated through the affidavit of Mr Gias Uddin Bhuiyan, Managing Director and proprietor of the defendant company that the delay in filing of its defence was principally attributed to Mr Bhuiyan being overseas at the material time:
(i)	in Singapore from 15 August 2016 to 31 August 2016 to attend to his sick infant daughter who was undergoing medical attention there;
(ii)	when his sick infant daughter unfortunately died on 31August 2016, he travelled on the same date with his daughter’s remains to Bangladesh and attended to funeral arrangements and remained in Bangladesh until 4 October 2016. 
(b)	It has demonstrated through the affidavit of Mr Bhuiyan that it has a meritorious defence and the plaintiff was still a shareholder of Ram Auto Dealers Ltd;
(c)	The delay in complying with the time limitation period has not caused the plaintiff any prejudice; 
(d)	It was in the interests of justice that the defendant be given an opportunity to defend the action.   

Plaintiff’s submissions

33.	The plaintiff through his counsel, Mr Pato contends that this application should be dismissed on the basis that:

(a)	the application is incompetent and amounts to an abuse of process because no leave was sought to withdraw the invalid defence and cross-claim prior to filing this application;
(b)	the pleadings clearly and without any ambiguity disclose a reasonable cause of action for breach of contract.

34.	In addition, it was contended that the application should be dismissed on the basis that:

(a)	The application was not made within a reasonable time of the time limitation period expiring given Mr Bhuiyan arrived back in the country on 6 October 2016 which gave him sufficient time to file the defendant’s defence within time and the application was filed 2 months and 13 days later on 23 December 2016; 
(b)	The defendant has failed to provide good or sufficient reasons for its failure to file its defence within time;
(c)	The defendant does not have a defence on the merits given the defence annexed to the affidavit of Mr Bhuiyan is the one and same defence and cross-claim which was filed without leave and therefore defective as opposed to attaching a draft defence pleading a defence on the merits.   

Reasons for ruling
	
35.	As to the submissions made by the parties about the state of the pleadings, it is my opinion that the lack of particulars in a statement of claim is no excuse for not filing a defence in time or at all:  Order 8 Rule 23 of the National Court Rules.    I have had regard to Davis v David Tasion (1989) SC364 as a guide.  That case stands for the proposition, that a request for further and better particulars does not alter the obligation to file a defence.  I reject the defendant’s submission in that regard.  The rules relating to particulars (Order 8 Division 2) or pleadings which are an embarrassment or amount to frivolity (Order 8 Rule 27 and Order 12 Rule 40) may be invoked where it is considered that pleadings lack particularity or do not disclose any reasonable cause of action.  

36.	The submission by the plaintiff that the defendant’s application is incompetent and amounts to an abuse of process because the defence and cross-claim already filed has not been withdrawn before the filing of its application in my opinion is without any basis, statutory or otherwise and consequently rejected:  POSF Board v ICBM Industries Limited.      	

37.	The defendant’s application for leave to file its defence and cross-claim out of time is moved pursuant to Order 1 Rule 15(1) and (2) and Order 8 Rule 23(1) of the National Court Rules.  

38.	Order 1 Rule 15 states:

	“15.	Extension and abridgement. (2/3)
(1)	The Court may, on terms, by order extend or abridge any time fixed by the Rules or by any judgement or order.
(2)	The Court may extend time under Sub-rule (1) as well after as before the time expires whether or not an application for the extension is made before the time expires.
(3)	The period within which a person is required by these Rules or by any order to serve, file or amend any pleading may be extended by consent without an order for extension.”

39.	Order 1 Rule 7 of the National Court Rules also gives the Court discretion to dispense with compliance with any of the requirements of the NCR either before or after the occasion for compliance arises. That provision is in the following terms:-
	
“7. Relief from Rules.

	The Court may dispense with compliance with any of the 
requirements of these Rules, either before or after the occasion for compliance arises.”

40.	The combined effect of Order 1 Rules  7 and 15 therefore is that; firstly, they give the Court a considerable discretion to dispense with compliance with any of the requirements of the National Court Rules either before or after the occasion for compliance arises; and secondly, in deciding whether to grant leave to extend time to file a defence out of time, as in this case, the Court’s discretion must be exercised on proper principles taking into account all the circumstances of the particular case.

41. 	I have set out Order 8 Rule 23(1) and addressed its application already.

42.	There is now a glut of case law on the principles applicable in making a successful application for leave to file a defence out of time.  One of those cases is Joe Tipaiza & Ors v James Yali & Ors (2005) N2971 where His Honour, Justice Cannings suggested what those principles were.  They are:

1.	the extent of the delay in making the application;
2.	the explanation for the delay in filing a defence;
3.	the demonstration of there being present a defence on the merits; and
4.	where do the interests of justice lie.

43.	I adopt and apply those principles to the present case.

What is the extent of the delay in making the application?

44.	On the question of the extent of the delay in making the application, I make these observations.  In the present case, the defendant was served with a copy of the writ on 30 August 2016.  Hence, the time for filing a notice of intention to defend and defence by the defendant started running from 30 August 2016.  The defendant was required to file its; notice of intention to defend the action by 30 September 2016; and its defence by 14 October 2016.  The defendant filed its notice of intention to defend the action on 12 September 2016.  Despite the defendant’s lawyers being forewarned by the plaintiff’s lawyers by letter and email on 8 November 2016 that failure to file and serve the defendant’s defence within 7 days of that letter would prompt an application for default judgment to be filed without further notice; and despite the defendant’s lawyers’ assurance given to the plaintiff’s lawyers by email on 14 November 2016 that they would file defendant’s defence  that morning and serve it on the plaintiff’s lawyers once uplifted from the Registry, no defence was filed on 14 November 2016:  Affidavit of Peter Hai Pato.  The defendant’s lawyers instead filed the defendant’s defence and cross-claim on 22 November 2016 which was way out of time by about 38 days.  This application was filed on 23 December 2016.  The defendant had been in default of filing its defence and cross-claim by then for about 2 months and 9 days.  This to my mind is not a lengthy period.  At the date of hearing of the application and ruling, the extent of the default has extended to more than 5 months, but I make no adverse finding in that regard.  This favours the grant of the application.

Has the defendant provided an explanation for the delay?

45.	As to whether the defendant has provided an explanation for the delay, I am satisfied that the defendant has through the affidavit of Mr Bhuiyan who is the Managing Director and proprietor of the defendant company.   It was principally attributed to Mr Bhuiyan being overseas at the material time hence, he was unable to provide proper instructions to the defendant’s lawyers to protect its interest.

46.	Firstly, he was attending to his sick infant daughter (DOB 16/04/2016) namely, Aysha Bhuiyan who was suffering from a condition called Pulmonary Atresia VSD and MAPCAs and seeking medical attention in Singapore from 15 August 2016 to 31 August 2016.  Evidence of the referral of the late Aysha to Dr Tan Teng Hong, Head and Senior Paediatric Cardiologist of the KK Women’s and Children Hospital, Singapore and exiting the country on 15August 2016 and arriving in Singapore later on the same date is contained in annexures “A”, “B”, “C” and “D” of his affidavit.  His trip to Singapore was purposely to obtain critical and urgent medical attention to his daughter.  Naturally, he focussed all his attention upon the interest of his daughter who had a very critical medical condition.

47.	Secondly, when the late Aysha died on 31August 2016, he travelled on the same date with his daughter’s remains to Bangladesh.  Evidence of him exiting Singapore on 31 August 2016 arriving in Dhaka, Hazrat Sharialal International Airport, Bangladesh later on the same date is contained in annexures “D”, “E” and “F” of his affidavit.  Between 31 August 2016 and 4 October 2016, he remained in Bangladesh to attend to and finalise late Aysha’s funeral arrangements.  Whilst in Bangladesh, his Manager contacted him from here about the writ.  He instructed him to liaise with the defendant’s accountant to organise a lawyer to protect the defendant’s interest.  

48.	He exited Dhaka, Bangladesh on the night of 4 October 2016, but more specifically in the early hours of 5 October 2016 for Kuala Lumpur, Malaysia and transited through to Singapore on the same day.  According to his Eticket; ETD Dhaka was 1:20 am and ETA Kuala Lumpur 7:15 am; and ETD Kuala Lumpur was 11:50 am and ETA Singapore 12:55 pm.  He departed Singapore for Port Moresby on the evening of 5 October 2016 arriving in Port Moresby on the morning of 6 October 2016.  According to his Eticket, ETD Singapore was 8:15 pm on 5 October 2016 and ETA Port Moresby 4:50 am on 6 October 2016.  Evidence of his return travel from Dhaka, Bangladesh via Kuala Lumpur and Singapore through to Port Moresby is contained in annexures “G”, “H”, “I”, “J” and “K” of his affidavit.

49.	Upon his return, he became immersed in updating matters relating to his business in the country.  He also spoke to his accountant namely, Mr Pera regarding the matter and he was informed that a legal firm namely, Andrews Lawyers was engaged to act on behalf of the defendant.  His accountant was responsible for ensuring that their lawyers filed a defence to the plaintiff’s claim.  From 23 October 2016 to 23 November 2016, he pursued his accountant to update him on the matter, but unfortunately he could not get any satisfactory update.

50.	On 23 November 2016, he gave instructions to one Mr Hubert Kikira, lawyer who deals with the defendant’s commercial matters to pursue the matter.

51.	A search conducted of the court file the next day on 24 November 2016, the result of which was shown to him on the same day, revealed that whilst a notice of intention to defend was filed, no defence had been filed.   It was then that he received an email from Mr Pera informing him that a defence and cross-claim was filed by Andrews Lawyers on 22 November 2016.   Copies of these documents are annexures “L” and “M” to his affidavit.   The chain of emails (annexure “L”) shows that the defence and cross-claim was served on the plaintiff on 23 November 2016.

52.	He was advised by his lawyers now, Rageau, Manua & Kikira that the defence and cross-claim was filed out of time therefore it was necessary to obtain leave of the Court to file one out of time. 

53.	He instructed his Manager when he contacted him whilst in Bangladesh to give the matter to his accountant whom he believed would, in his absence, try his best to ensure that the defendant’s interest was protected, but unfortunately, without his presence and ability to provide or verify instructions, his accountant could not possibly discharge the responsibility in a satisfactory manner.   This led to the failure to file a defence within time.    

54.	The application was filed 2 months and 17 days later on 23 December 2016.   I am satisfied that the defendant provided an explanation for the delay. This consideration favours the defendant and the grant of the application.

Whether the defendant has demonstrated that there is present a defence on the merits?

55.	On the question of whether the defendant has demonstrated that there is present a defence on the merits, I think the affidavit of Mr Bhuiyan, particularly from paragraphs 31 to 41, demonstrates that there is.  Mr Bhuiyan states that the plaintiff’s claim is based on the contract (Commercial Contract of Sale and Purchase of Company entered into between Ram Auto Dealers Ltd and the defendant company on 3 April 2014), a copy of which is annexed to his affidavit as annexure “N”.  Pursuant to the contract, the defendant by 31 December 2014 paid the purchase price agreed to under the contract of K1.6 million. The details of the payments that the defendant made are contained in a reconciliation of cheque payments which is annexed to his affidavit as annexure “O”.  He also states that the defendant paid a further sum of K128,000.00 to the plaintiff and  Ram Auto Dealers Ltd for spare parts which the defendant has never received.  He also states that despite the full payment of the purchase price pursuant to the contract, neither the plaintiff nor the shareholders have transferred the shares and ownership of Ram Auto Dealers Ltd to the defendant.   He has annexed a copy of the company extract of Ram Auto Dealers Ltd as at 21November 2016 as annexure “P” to his affidavit.   He also states that by its failure to transfer the shares to the defendant, the plaintiff has continued to operate the business to the detriment of the defendant and that most of the assets which were listed in the contract are no longer available for the defendant to acquire them.  This is reflected in the invalid defence and cross-claim filed on 22 November 2016 without leave which is annexed to the affidavit of Mr Bhuiyan as annexure “M”.  The invalid defence and cross-claim has not been formally withdrawn and is still formally before the Court:  POSF Board v ICBM Industries Limited.

56.	He also states that; on or about 15 January 2015, the plaintiff incorporated a company called PNG Auto Auction Limited to operate a similar business as Ram Auto Dealers Ltd; and on 21 April 2016, the plaintiff wrote to the National Land Transport Board seeking approval to change the trading name of Ram Auto Dealers Ltd to PNG Auto Auction Limited and the location of the business. Copies of the; company extract of PNG Auto Auction Limited; duly completed and signed Companies Act Forms 1, 2 and 4 all dated 12 January 2015 and lodged with the Office of the Registrar of Companies on 14 January 2015; and the letter to the National Land Transport Board are annexed to his affidavit as annexures “Q” and “R” respectively.  He says that the request to the National Land Transport Board for those changes to be approved clearly shows that the plaintiff not only intended to change the Motor Car Dealer Licence held by Ram Auto Dealers Ltd 	to PNG Auto Auction Limited, but also that the plaintiff was already setting up a similar business in direct competition with the defendant.

57.	So Mr Bhuiyan states that the plaintiff, by his conduct, has effectively refused to conclude the contract.

58.	He also states that the plaintiff, not only has made this false and misconceived claim against the defendant, but also lodged a false complaint to the police against him personally which resulted in him being arrested and charged by the police on 30 November 2015 for two counts of false pretence and fraud. These charges, he states, were dismissed by the Committal Court on 22 June 2016 for insufficiency of evidence and for being misconceived. Copies of the order of the Waigani Committal Court and documents supporting the refund of K2,000.00 police bail are annexed to his affidavit as annexure “S”. 

59.	Mr Bhuiyan states that the plaintiff continues to operate the business both under Ram Auto Dealers Ltd and PNG Auto Auction Ltd and has not transferred the shares and ownership of Ram Auto Dealers Ltd to the defendant.

60.	The plaintiff’s position is stated in his affidavit.  He essentially refutes and rejects Mr Bhuiyan’s assertions that; the defendant has fully settled the purchase price of the sale of Ram Auto Dealers Ltd pursuant to the contract therefore it is not in breach of the contract; and that he is indebted to the defendant in the sum of K128,000.00 for spare parts.  

61.	I am satisfied that the defendant has demonstrated that there is present a defence on the merits.  This consideration therefore favours the defendant and the grant of the application.

Where do the interests of justice lie?

62.	Balancing all the considerations and looking at all the circumstances of the case, I think it would be in the interests of justice for the plaintiff’s claim to be proved by evidence in a trial proper before judgment is given on the merits.  This consideration favours the defendant and the grant of the application.        

CONCLUSION

63.	In the circumstances and in the exercise of my discretion, I am minded to grant leave to the defendant to file its defence and cross-claim out of time. The favourable determination in favour of the defendant’s application renders the plaintiff’s application for default judgment filed on 2 December 2016 futile and I will refuse the relief sought by the plaintiff as a consequence.   

64.	I direct the entry of judgment in the following terms:

(a)	the defendant is granted leave to file its defence and cross-claim out of time.
(b)	the defendant shall file and serve its defence and cross-claim upon the plaintiff within 7 days of this ruling.
(c)	the plaintiff’s application for default judgment is refused.
(d)	Costs be in the cause. 
_____________________________________________________________________
Parker Legal:  Lawyers for the Plaintiff 			
Rageu Manua & Kikira:  Lawyers for the Defendant