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Moehau v Pacific Stores Ltd [2009] TOCA 16; AC 24-2009 (10 July 2009)

IN THE COURT OF APPEAL OF TONGA
NUKU'ALOFA REGISTRY

AC 24 of 2009

BETWEEN:

SIOSAIA MOEHAU, SIONE TAFOLO,
KOSEMA FALEMAKA, PENI LAVAKEI'AHO,
'ATUNAISA FETOKAI, LEIMONI LAVAKEI'AHO,
SIONE TUITA, FE'OFA'AKI NONU, MALAKAI 'AKE,
HOTINI FIFITA and LEKAU VEIKUNE
Appellants

AND

PACIFIC STORES LIMITED
Respondent

Coram Ford C]
Burchett J
Moore J

Counsel: Mr Stanton for the Appellants
Mr Stephenson for the Respondent

Date of hearing: 8 July 2009
Date of judgment: 10 July 2009.

JUDGMENT OF THE COURT

[1] This is an appeal against a refusal by Shuster J to set aside a default judgment for which the Respondent (the plaintiff) had applied, its counsel conceded, within one day of the expiry of the time for the filing of a Statement of Defence, the judgment being entered within one week after that expiry. The application for judgment in default was made without any further warning after the service of the statement of claim that the time for filing a statement of defence would be insisted upon to the day, although the Plaintiff's solicitor had been informed by Mr Moehau, as had his client previously, that the Appellants denied liability on the ground that a particular fellow defendant in the proceeding had had no authority, actual or ostensible, to bind them.

[2] It is unnecessary now to go into the details of the Appellants' proposed grounds of defence because a concession was made at the hearing of the appeal that the Appellants had raised an arguable defence. But it should be noted that a defence - as this is - denying the authority on any basis of a fellow committee member of an unincorporated club to bind the other members to a contract is one that is likely to raise questions involving, as any lawyer would appreciate, complexities both of fact and of law. Had an extension of time been sought to investigate the facts and research the law for the accurate formulation of a statement of defence, there is no reason to doubt some further period would have been allowed.

[3] Although the default judgment was sought ex parte so speedily, it was not until a month and a half later, after the Respondent (the plaintiff) had itself sought and obtained the indulgence of an extension of time to do so, that it was served upon Mr Moehau, the First Appellant. The dates are: service of Statement of Claim on each Appellant 20 January 2009; application for default judgment made ex parte 18 February; entry of judgment upon the application 24 February; service upon Mr Moehau 3 April; filing by all Appellants of application to set aside default judgment 6 May 2009.