Lord v Varea [1998] FJHC 165; Hbc0404d.98s (1 December 1998)

Fiji Islands - Lord v Varea - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 404 of 1998

BE:

:

TIMAIMA MARGARET LORD
Plaintiff

AND:

VIKI VAREA
Defendant

Mr. Peter Knight for thor the Defendant

DECISION

This is the deft's application to set aside default judgment herein of 14 September 1998 for the sum of $1of $15,270.00, damages and costs.

In support of his application the defendant has filed an affidavit setting out the grounds on which he relies. As one of his grounds he says that his counsel was away overseas and judgment was entered in his absence; secondly, he says that he has a good defence and has attached a draft Defence to his said affidavit.

Mr. Knight submits there was no undue delay and there is defence on merit.

For the plaintiff, Mr. Flower submits that the defendant has not been responding to correspondence from the plaintiff's solicitor's Office. He says that the defendant has not complied with the terms of an agreement dated 26 June 1997 between the parties.

Mr. Flower says that the Defence is not a 'valid' defence and therefore the judgment should be allowed to stand.

On the evidence before me I am not satisfied at all with the reason for failure to file Statement of Defence. The fact that his solicitor was away will not hold any water. In his own words, his solicitor wanted details to prepare a Defence but whether that was done in time the defendant does not say. In any case the solicitor's firm does not stop functioning while the solicitor is away. It appears that the defendant was dilatory himself in not attending to this matter in time. He has to suffer the consequences.

The defendant says that he has a good defence and attached a draft Defence to his affidavit. It is noted that the agreement was made on 26 June 1997 and certain payments, according to the defendant, had been made (vide item 8 of draft Defence) leaving a balance sum of $2250. Now he disputes the value of motor vehicle etc. If he had any complaint about the agreement he could have done so long before the issue of the Writ of summons on 14 August 1998.

The defendant raises a number of prima facie defences. On the facts and circumstances of this case I would make a conditional Order.

The default judgment of 1 September 1998 is set aside on condition that the defendant deposit $5000.00 in Court within 21 days from this Decision and within that time he file and serve a Statement of Defence. Failure to comply with the said order shall mean that the default judgment will stand.

The defendant is ordered to pay to the plaintiff the sum of $150.00 being the costs of hearing of this application to be paid within 14 days.

D. Pathik
Judge

At Suva
1 December 1998

Hbc0404d.98s