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Hilly v Milikada [2006] SBHC 107; HCSI-CC No 197 0f 2002 (3 October 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 197 of 2002

HARONI HAROLD HILLY, JIMMY HILLY,
FRANCIS HILLY AND TITIULU
(Plaintiffs)

v

SILAS MILIKADA (Trading as JP Enterprises Limited)
(First Defendant)

JOY ITAIA (Trading as Ocean Trading Company)
(Second Defendant)

LETIPIKO BACES
(Third defendant)

AUSTRALIA AND NEW Z EALAND BANKING GROUP LIMITED
(Garnishee)

(Mwanesalua, J.)

Hearing: 17^th August 2006
Ruling: 3^rd October 2006

A. Radclyffe for the Plaintiffs
A. Nori for the Second Defendant

RULING

Mwanesalua, J: By Amended Summons filed on 11 May 2006, the Second Defendant seeks orders that (1) the Writ of Summons in this action be struck out; (2) the default judgment against the Second Defendant be set aside; (3) the judgment for damages for trespass against the Second Defendant for USD83,785.50 (less the sum of SBD1000,000) be set aside; (4) the Garnishee order absolute made on 22 March 2006 be set aside; (5) the Plaintiffs or the Garnishee refund the sum received by the Plaintiffs under the Garnishee Order absolute; (6) the costs of this application be paid by the Plaintiffs or on the alternative Philip Tegavota, the former advocate for the Second Defendant and (7) such other orders this Honourable court deems just and equitable in the circumstances.

THE BACKGROUND FACTS

The Plaintiffs are registered owners of a fixed term estate in parcel number 191-008-1 known as Maravari Land in Western Province. Nono Customary Land shares a common boundary with Maravari Land. The First and Second Defendants used a timber Licence to carry out logging operations on Nono Land which was in Custody of the Third Defendant on behalf of his tribe. On an unknown date and month in 2001, the First and Second Defendants unlawfully entered Maravari Land. They encroached into that land about 25.98 hectares and extracted logs for export.

The Plaintiffs filed a Writ of Summon and a Statement of Claim against the First, Second and Third Defendants on 8 August 2002 when the encroachment became known to them. This Writ of Summons was later amended and filed on 29 October 2002. In their suit, the Plaintiffs claimed, among other things, damages for trespass and convention of trees. The First and Third Defendants entered appearance on 22^nd August 2002. They were then represented by Mr. James Apaniai of Counsel. On 27 November 2002, the First and Third Defendants filed their defence in the action.

A consent order for directions was signed by the advocate for the Plaintiffs, Ms. Tongarutu and the advocate for the First and Third Defendants, Mr. Apaniai on 31 January 2003 and endorsed by the Court on 3 February 2003. The list of documents for the Plaintiffs and the First and Third Defendants were filed in court on 24 February and 4 March 2004 respectively. On 28 June 2004 advocate for the Plaintiffs filed Certificate of readiness for the action to be tried. The action was set down for trial on 17 August 2004. However, this trial date was vacated on 16 August 2004 and adjourned to a new date to be fixed by the Registrar, as the First and Third Defendants were not advised about that trial date, and that no inspection had yet been done on documents possessed by parties to the actions.

On 1 September 2004, Mr. Andrew Radclyffe of Counsel, gave notice in court as advocate for the Plaintiffs, in place of Ms. Tongarutu of ANT Legal Services. At 9 am on 22 November 2004, Mr. Philip Tegavota of PT Legal Services informed Mr. Apaniai, that he, Mr. Tegavota, had been instructed by the First Defendant to act for both the First, Second and Third Defendants in the action, in place of Mr. Apaniai. On 25 November 2004, the court granted leave to Mr. Apaniai to withdraw from representing the First and the Third Defendants in the action.

On 21 April 2005, Mr. Tegavota filed notice of change of advocate to act for the First, Second and the Third Defendants in this action. On 22 April 2005, Mr. Tegavota confirmed to Mr. Radclyffe, that he was also instructed to act for the Second Defendant.

On 22 April 2005, a consent order for directions was signed by Mr. Radclyffe and Mr. Tegavota, and endorsed by the Court. That Consent Order was in these terms:

"1. Second Defendant to enter an appearance and file and serve a defence within 14 days;

2. Plaintiff to file and serve a reply to Second Defendant's defence 7 days thereafter;

3. Second Defendant to file and serve list of documents 14 days thereafter;

4. Inspection of documents 7 days thereafter;

5. Costs in the Cause."

On 24 May 2005, Mr. Radclyffe reminded Mr. Tegavota, that no appearance and defence had yet been filed on behalf of the Second Defendant in compliance with the Consent Order for directions of 22 April 2005 above. Mr. Radclyffe wrote a follow up letter to Mr. Tegavota on 8 July 2005, when there was no response from Mr. Tegavota. On 1 September 2005, Mr Radclyffe enclosed a motion for judgement by way of service on Mr. Tegavota in a letter addressed to Mr. Tegavota himself. The motion was heard by the Court on 29 September 2005, in the absence of Mr. Tegavota, who did not attend Court. The Court entered default judgment in favour of the Plaintiffs against the Second Defendant, for damages to be assessed at a date to be fixed by the Registrar. That default judgement was in these terms:

"1. Judgment for the Plaintiffs against the Second Defendant for damages to be assessed on a date to be fixed by the Registrar.

2. The Second Defendant to pay the Plaintiffs' costs to be taxed if not agreed."

On 19 January 2006, the court assessed damages in the sum of USD$83,785.50 against the Second Defendant. This figure was rounded up to $600,000.00 less $100,000.00. As the Second Defendant had not settled the remaining $500,000.00 judgment debt to the Plaintiffs, Mr. Radclyffe enclosed a Garnishee Summons and Affidavit in support by way service on Mr. Tegavota by letter dated 6 March 2006. A Garnishee Order Nisi was issued to the Garnishee - ANZ Banking Group Limited. This Garnishee Order Nisi was addressed to both the Garnishee and the Second Defendant to attend court on 15 March 2006 at 1.30pm. Both Mr. Radclyffe and Mr. Tegavota appeared in court, but no person appeared for the Garnishee. On 22 March 2006, Mr. Radclyffe and Ms. Joyce Luiramo for the Garnishee appeared in court, but Mr. Tegavota did not. Ms. Luiramo told the Court that the Second Defendant's account had a credit balance of $70,225.39 in its account with the Garnishee. The Registrar granted Garnishee Order Absolute, ordering the Garnishee to pay $70,225.39 from the Second Defendant's account to the Plaintiffs, as payment of their judgment debt of $500,000.00.

THE SECOND DEFENDANT'S CASE

The Second Defendant denied that she had been served with the Writ of Summons; the Consent Order for directions requiring her to file appearance and defence; the default judgment against her for damages to be assessed; the judgment debt of $600,000.00 awarded to Plaintiffs against her for trespass; the Garnishee Order Nisi for the attachment for the judgment debt of $70,225.39; and the Garnishee Order Abosolute dated 22 March 2006. The Second Defendant contended that she did not give instructions to Mr. Tegavota to act for her in this action.

THE PLAINTIFFS' CASE

The Plaintiffs opposed this application on two grounds. First, they say that Mr. Tegavota was the advocate who acted for the Second Defendant in this action. He confirmed that by notice of change of advocate filed in Court, and, further confirmed that by correspondence to the Plaintiff's advocate. They say that the interim judgments and orders obtained against the Second Defendant were based upon Mr. Tegavota's actions in his capacity as the advocate for the Second Defendant. And Second, that the interim judgments and orders made against the Second Defendant should not be set aside because this application had not been brought within reasonable time pursuant to order 69, rule 2 of the High Court (Civil Procedure) Rules 1964 ("the Court Rules").

DECISION OF THE COURT

The Second Defendant denied that neither she nor her business agent gave instructions to Mr. Tegavota to act for her in this case. Mr Tegavota admitted during his testimony that he was not instructed by the Second Defendant but merely by the First Defendant to act for the Second Defendant. As a result of this admission, it was not necessary to hear evidence from the Second Defendant on this point. It is clear from the court file that no advocate was acting for the Second Defendant prior to April 2005 when Mr. Tegavota purported to represent the Second Defendant. I find as fact that Mr. Tegavota was not instructed and authorized by the Second Defendant to act for her in this action.

The Second Defendant also denied being served with the Writ of Summons in this action. The Writ of Summons was issued on 22 August 2002. It was subsequently amended on 30 October 2002. The Writ of Summons was filed by ANT Legal Services for the Plaintiffs against the First, Second and Third Defendants. The Writ of Summons was not indorsed pursuant to Order 9, rule 12 of the Court Rules, showing that it had been served on the Second Defendant. Further, there was no affidavit of service on the Second Defendant filed in court. Mr. Tegavota had not confirmed that it had been served on the Second Defendant when clarification was sought by Mr. Radclyffe on 22 April 2005. I find as fact that the Second Defendant was not served with the Writ of Summons in this action.

The Second Defendant sought an order to strike out the Writ of Summons. But they did not advance reasons for the Court to do that at this stage. I think the Plaintiffs may still consider renewing the Writ of Summons in due course should they still wish to proceed against the Second Defendant in this action. A Writ of Summons may be renewed for "good reason."¹

The Plaintiffs filed their motion for judgment against the Second Defendant on 18 August 2005. This was because the Second Defendant failed to enter an appearance and filed a defence. The motion was served on Mr. Tegavota on 1 September 2005, who purported to act for the Second Defendant. It was not served on the Second Defendant personally. Because of this, the Second Defendant did not attend court on 29 September 2005, when default judgment was entered against her. The Second Defendant had no notice of the motion under which the default judgment was entered against her.

This default judgment led the court to assess and made an award of damages for trespass in favour of the Plaintiffs in the sum of USD83,785.50 less SBD100,000.00 against the Defendant on 19 January 2006. As on 28 February 2006, the judgment debt still owing to the Plaintiffs was $500,000.00. ON the same day, the Plaintiffs obtained an Order Nisi for the attachment of that debt. That document was served on the Garnishee - ANZ Banking Group Limited. It was also served on Mr. Tegavota on 6 March 2006. The Second Defendant was not served and had no notice of the document. The Registrar granted garnishee order absolute on 22 March 2006, without notice and presence of the Second Defendant. A sum of $70,225.39 was paid by the Garnishee to the Plaintiffs on the authority of this document.

The Second Defendant seek orders that the default judgment, the judgment for damages and the garnishee order absolute be set aside. There is no dispute that the Second Defendant had no notice of the proceedings relating to the default judgment, the judgment for damages and the garnishee order absolute.

The Plaintiffs say that the judgments and the orders against the Second Defendant should not be set aside because there was delay by the Second Defendant in bringing this application. I do not think that the second Defendant was guilty of any delay.

The Second Defendant was not served with the Writ of Summons and the notices of the proceedings upon which the default judgment and the judgment were obtained. The judgments were obtained outside the scope of the Court Rules. The Plaintiffs had no Writ of Summons to initiate the interlocutory proceedings through which the judgments were obtained, as the Writ of Summons was not served on the Second Defendant. In Craig v. Kanseen², the Court said: "A judgment obtained by some step not warranted by the rules or not capable of being sanctioned is wholly void and may be set aside." On orders the court said: "An order which can be properly described as a nullity is something which the person affected by it is entitled ex debito justitiae to have it set aside. So far as the procedure for having it set aside is concerned, it seems to me that the court in its inherent jurisdiction can set aside its own order; and an appeal from the order is not necessary." Three classes of proceedings which are nullities were set out in Re Prichard (deceased)³. They are (1) proceedings which ought to have been served but have never come to the notice of the defendant (but this does not include cases of substituted service or service by filing in default or cases where service has been properly dispensed with); (2) proceedings which have never started at all owing to some fundamental defect in issuing the proceedings, and (3) proceedings which appear to be duly issued but fail to comply with a Statutory requirement. The motion upon which the default judgment was obtained; the notice for hearing upon which the judgment debt was obtained; and the order nisi for attachment of debt which led to the grant of the garnishee order absolute were never served on the Second Defendant. My view therefore is that the default judgment, the judgment debt and the garnishee order absolute were nullities, because the documents upon which they were obtained, were never served on the Second Defendant within the meaning of class (1) of proceedings above.

Order 69, r 2 does not apply in this case. This case is not concerned with the non compliance, nor with irregularity under any rule of the Court Rules. The default judgment, the judgment debt and the garnishee order absolute were obtained independently of the Court Rules. The Plaintiffs had no right to obtain them at all and can be set aside at any time.

The garnishee order absolute had caused injustice to the Second defendant. It had deprived the Second Defendant of her property. She had lost $70,225.39 through it. I can remedy this injustice by an order that the Plaintiffs repay that full amount to the Garnishee within a period to be agreed between the Second Defendant and the Plaintiffs.

This court does not know the reason for the Writ of Summons not being served on the Second Defendant. The first advocate for the Plaintiffs was under a duty to serve the Writ of Summons on the Second Defendant on time⁴. It has not been served on the Second Defendant since it was issued in 2002. As I have said above, it could still be renewed for good reason. The decision on whether it could be renewed is a matter to be decided on another day. But for the moment, I would refuse the order sought by the Second Defendant to have it struck out. The application by the Second Defendant is allowed in part. The costs of this application are to be in the Cause.

THE ORDERS OF THE COURT:

1. Refuse to strike out the Writ of Summons.

2. Set aside the default judgment dated 29 September 2005; judgment debt dated 2 March 2006 and garnishee order absolute dated 22 March 2006.

3. Plaintiffs to repay the $70,225.39 received under the garnishee order absolute to the Garnishee within a period agreed by the Second Defendant and the Plaintiffs.

4. Costs in the Cause.

Francis Mwanesalua
Puisne Judge

ENDNOTES:

¹ See Easy v. Universal Anchorage Co. Ltd. [1974] 2 All ER. 1105 at p. 1107
² See Craig v. Kanseen [1943]1 All ER. 108 per Lord Greene M.R of pp. 111 and 113.
³ See Re Prichard (deceased) [19630] All ER.87 per UpJohn LJ at p.883.
⁴ See Easy v. Universal Anchorage Co. Ltd [1974] 2 All ER. 1105.