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Apex Insurance Brokers Ltd v Finau [2012] TOCA 4; AC 21 Of 2011 (12 October 2012)

IN THE COURT OF APPEAL OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

AC 21 of 2011
[CV 193 of 2010]

BETWEEN:

APEX INSURANCE BROKERS LTD
Appellant

AND:

SAMIPENI FINAU
Respondent

Coram: Salmon J

Moore J

Handley J

Counsel: Mr. Edwards for the Appellant

Mr. T. Fifita for the Respondent

Date of hearing: 3 October 2012

Date of judgment: 12 October 2012

JUDGMENT OF THE COURT

[1] This is an appeal from a judgment on 2 September 2011 which dismissed the appellant's application dated 28 June 2011 to set aside the interlocutory judgment for damages to be assessed, in default of a defence, entered on 11 December 2010, and the assessment of the plaintiff's damages on 6 June 2011.

[2] The proceedings arose out of a policy of fire insurance issued by the appellant to the respondent on 9 December 2009 covering the respondent's retail store at Nualei for $40, 000, and his stock in trade there to a value of $160, 000.

[3] On 28 December the premises were totally destroyed by fire.

[4] The respondent made a claim under his policy which the appellant rejected.

[5] The respondent commenced proceedings in the Supreme Court on 23 September 2010, and according to the certificate of service on the file, the writ, statement of claim and directions notice were served on the appellant at its office at Nuku'alofa on 30 September.

[6] The writ notified the appellant that if it wished to defend the claim it must file a written defence within 28 days. Under the procedure in the Supreme Court a defendant is not required to file and serve a notice of appearance otherwise than in its defence.

[7] The appellant did not file and serve a defence within time and on 5 November the respondent filed an ex parte application under the Rules for judgment in default of defence.

[8] On 11 November the primary judge entered judgment for the respondent for damages to be assessed and directed service of his order on the appellant within 14 days of the issue of the order and service of the respondent's bill of costs.

[9] According to the certificates of service on the file the appellant was served with a copy of the default judgment on 16 November and on 7 December it was served with the respondent's itemised bill of costs claiming $2735.

[10] On 26 May 2011 the assessment of the respondent's damages was heard ex parte by the primary judge and judgment was reserved. This was delivered on 6 June when the respondent was awarded $200, 000 with interest at the rate of 10% from 28 May 2010.