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Jewett Cameron South Pacific Ltd v Tu'uholoaki [1999] TongaLawRp 11; [1999] Tonga LR 51 (29 March 1999)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku’alofa

C 818/94

Jewett Cameron South Pacific Ltd

v

Tu’uholoaki

Ward CJ
25 February 1999; 29 March 1999

Practice and procedure — application to set aside a judgment in default of defence — application granted

On 20 September 1995 judgment in default of defence against the defendants jointly and severally was entered. The defendants were to pay the sum of $32,386.00 and interest at 10% from date of judgment, costs and disbursements. On 19 October 1998 application to set the judgment aside was filed with the Court. There was a long period between judgment and application to set it aside. The original claim was for the unpaid balance of the cost of a building largely constructed in 1992 and was filed on 12 September 1994. On 25 September 1994 the second defendant replied to the solicitor for the plaintiff stating that she was “refusing to appear in court over this case and legally you should know that I was never been part of this contract”. On 20 October 1994, the plaintiff’s solicitor responded to the second defendant and said that he had sent a copy of the letter to the plaintiff and “we will contact you when we have a response”. Later it stated; “We are treating your letter as an informal defence or explanation for the time being and we will contact you if we have any need for further information.” Judgment in default of defence was granted ex parte on 20 September 1995.

Held:

1. In order to have a summary judgment set aside, the defence must establish with potentially credible evidence on affidavit that there is a real likelihood that the defendant will succeed on the facts.

2. If the second defendant was correct, she may have had a defence to the action. Similarly, depending on the attitude the court took to the letter from the plaintiff apparently adjusting the quotation down, the first defendant had a reasonable chance of success.

3. The application was granted and the judgment in default of defence entered on 20 September 1995 is to be set aside on the payment into the court of a sum equal to the judgment sum without interest but including the costs and disbursements ordered i.e. a total sum of $33.147.50. Failure to pay that amount into Court by 1 June 1999 would mean the judgment was not set aside. More time than usual had been allowed for that payment to be made so it was also ordered that the defendants, their family, servants or agents should not in the meantime make any attempt to dispose of or otherwise deal with the house built under the contract.

Cases considered:

Evans v Bartlam [1937] AC 473; [1937] 2 All ER 646