Westpac Banking Corporation v Kumar [1996] FJHC 84; Hbc0321d.96s (23 December 1996)

Fiji Islands - Westpac Banking Corporation v Kumar - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 321 OF 1996

BETWEEN:

WESTPAC BANKING CORPORATIONn>

Plaintiff

AND:

1. ASHOK KUMAR
s/o Banwari Lal
2. ATTORNEY GENERAL OF FIJI
Defendants

Mr. M. Young for the Plaintiff

Mr. S. Baiju for the second Defendant

DECISION

By Writ of Su dated 4 July 1996 the Plaintiff instituted proceedings against the first and second defendefendants.

The first defendant filed his Stnt of Defence and the Plaintiff filed its Reply to Defence within the prescribed time. Ther There are two applications before me . Firstly, the second defendant has failed to file his Statement of Defence and is now by Summons dated 9 November 1996 seeking leave to file it out of time. Secondly, the Plaintiff by Summons dated 24 September 1996 is seeking an Order that it be granted leave to apply for judgment in default against the second defendant in terms of the relief claimed in the Statement of Claim dated 2 July 1996 because he has not filed his Defence.

The main reason for not having filed the Statement of Defence according to affidin support of the second dend defendant is that the legal officer to whom this file was allocated was also the Acting Registrar of Titles and she went on maternity leave. On her return the file was given back to her. Hence the delay in complying with the requirements of the rules in regard to the filing of pleadings.

A draft Statement of Defence has been attached to the said affidavit st that there is good and vald valid defence.

Mr. Young for the Plaintiff says that the second defendant has neither complied with the Hourt Rules nor has he complcomplied with the Deputy Registrar's Order to file Defence. Also, he says that there is no defence on merits.

Mr. Baiju for the State argues that although there is delay in filing, even if leave to enter judgment is given it will not dispose of the case as the case against the first defendant will still proceed. He said that the application is "premature". Mr. Baiju says that the Plaintiff did not do a proper search of the Certificate of Tile in question and that there are triable issues.

I have considered the two applications together.

No doubt the case against the first defendant will proceed to trial ev judgment was allowed by deby default. However, the nature of the case is such that the second defendant's alleged involvement necessitates that a Statement of Defence be filed by him so that all the issues are before the Court at the same time so that there is a proper adjudication of the matter.

It is true that there has been a considerable delay in filing defence for the reason given may not be quite acceptablptable. However, it appears that the Plaintiff has also delayed considerably in instituting these proceedings. I find that there are triable issues after I have perused the proposed Statement of Defence.

Therefore, in the interests of ce and in the exercise of the Court's discretion I grant the Order sought by the second defd defendant and consequently I have to refuse the Plaintiff's application and it is dismissed.

The second defendant is ordered to file and serve his Statement of Defence w 14 days and thereafter ther the action to take its normal course.

I award costs against the second defendant to be taxed if not agreepan>

D. Pathik
Judge

At Suva

n lang=EN-GB style="font-fant-family: Times New Roman">23 December 1996

Hbc0321d.96s