IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER: of an Application pursuant to Rule 140 and/or Rule 141 of the 
Supreme Court (Civil Procedure Rules) 1980 and Section 19 of the Judgment Summons Act 1965

BETWEEN:

TAVALE ULUGIA
of Vaigaga, Cook
Applicant

AND:

VIONA CURRY
of Apaula Heights, Businesswoman
Respondent

Presiding Judge: Justice Slicer

Counsel: S Leung Wai for the Applicant
R Drake for the Respondent

Hearing: 4 June 2010
Judgment: 30 June 2010

JUDGMENT OF SLICER J

1.	The Applicant seeks to set aside a judgment of this Court entered in the amount of $15,458.00 on 23 August 2007. On 9 July 2004, the Applicant had been the driver of a motor vehicle which crashed into the Respondent's premises causing significant damage. The Respondent was insured.

2.	 The Applicant's mother was employed by the Respondent shortly after the accident. She went with her husband and son to apologise and request assistance.

3.	The Respondent explained that since she was insured, she would accept payment by installments of her excess which was $500.00. The Applicant was charged for breach of traffic law and convicted in the District Court. The Respondent is not sure whether the $500.00 was paid because of the order of the District Court or through a Probation Officer but concedes the amount was paid.

4.	In July 2007, the insurer exercising its power of subrogation commenced proceedings for recovery of $15,458.88 as damages and costs. On 27 July and 1 August 2007, the Applicant went to the solicitor of the insurer and the nature of the proceedings explained to him.

5.	The Summons was returned to the Court on 6 August with the Applicant appearing for himself. He presented a written defence. The hearing Judge received the document and the matter adjourned to 20 August for re-mention. On that day, the hearing Judge adjourned the matter further so that he could consider the written defence. On 23 August, the parties again appeared before His Honour who informed the Defendant that he had considered the defence and found it to be without merit. He entered judgment in favour of the Respondent in the sum of $15,458.00.

6.	Between 10 September and 13 November 2007, the Defendant paid $320.00 in installments to the solicitors. He stopped payments and on 3 March 2008 a warrant was issued, but stayed. Between 11 April and 31 October 2008, the Applicant paid $800.00 by installments. He again stopped payment. On 14 November 2004 he applied, by Motion to Set Aside the Judgment.

7.	He claims that the Respondent accepted the sum of $500.00 in full settlement of her claim. I do not accept his claim or the evidence supporting it. In cross-examination before me, he conceded that the Respondent had referred to her excess and he knew the extent of the damage caused. The position was twice explained to him by the insurer's solicitor and by the hearing Judge. It is quite common for those harmed by negligence are paid their excess directly by the tort feasor. It is common for insurers to claim for the money paid out without taking into account any excess. Compromise of the Plaintiff's person claim for her excess does not bar the later assertion of a claim through subrogation by the terms of the original compromise (BCCI v Ali [2002] 1 AC 251). There was no defence by virtue of the doctrine of promissory estoppal (Commonwealth of Australia v Verwayen (1990) 170 CLR 394).

8.	Here the Applicant was present in Court when judgment was entered. He had presented his case or defence.

9.	There is no merit in the application.

10.	The application is dismissed.

JUSTICE SLICER