National MBf Finance (Fiji) Ltd v Maharaj [1998] FJHC 69; Hbc0384d.97s (22 May 1998)

Fiji Islands - National MBf Finance (Fiji) Ltd v Maharaj - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 384 OF 1997

BETWEEN:

NATIONAL MBf FINANCE (FIJI) LTD
Plaintiff

AND:

1. DARREN MARK MAHARAJ
2. SETH HARIPAL MAHARAJ
3. MARIA KAMELA FIROMENA MAHARAJ
Defendants

Mr. H. Lateef for the Plaintiff
Mr. T. Savu for the Defendant

DECISION

This is the Defendants' Motion for an Order to set aside the default judgment entered against them by the Plaintiff on 17 October 1997. They also seek an Order staying execution on the said judgment. An Affidavit in Support has been filed by them.

The Defendants state in effect that the main reason for not filing a Defence in this action was because their Solicitors Messrs. Kato & Co. let them down though a Notice of Intention to Defend was filed by them. Thereafter Mr. Kato got involved in a criminal trial which involved him personally. When the defendants realized what the position was they changed solicitors and hence the present application with a proposed Defence which they say has merits.

Messrs. Lateef & Lateef filed a Reply to the Affidavit stating, inter alia, that this was a regular judgment obtained as a result of failure to file Defence pursuant to Writ of Summons served on the Defendants.

In the argument before me on 9 April 1998 Mr. Savu for the Defendants said that it is the "solicitor's fault".

Mr. H. Lateef for the Plaintiff submitted that solicitor's fault is no excuse and the Defendants have the right to sue the solicitor. The proposed Defence he says is no defence, however, he would be prepared to consent to application conditional upon moneys being deposited in Court.

In reply Mr. Savu said that the Defendants admit an amount but not what is in the claim and he is prepared to discuss this with Mr. Lateef. Whereupon I adjourned the Motion to 5 May 1998 at 9.15 a.m. for mention only to enable parties to discuss accounts.

On the adjourned date Mr. Savu did not turn up at 9.15 a.m. when I called the matter with Mr. Lateef present. The letter which is on the file saying Mr. Savu is sick came later after I had on Mr. Lateef's application decided I would give Decision on Notice.

Consideration of the issue

The Plaintiff's claim of $60,089.95 is pursuant to guarantees dated 28 January 1994 and 30 November 1995 executed by the Defendants in favour of the Plaintiff.

The Statement of Claim stated:

Pursuant to the said Guarantees the defendants guaranteed payments under Lease Agreement and Hire Purchase Agreement dated 28th day of January 1994 and 30th day of November 1995 respectively to the Plaintiff in consideration of the Plaintiff entering into Agreements with KWICKER INTERNATIONAL FREIGHT SERVICES LIMITED full particulars of which are well known to the Defendants. The said KWICKER INTERNATIONAL FREIGHT SERVICES LIMITED was wound up in Companies Proceeding No. HBE 13 of 1997 on the 28th day of February 1997.

I have considered the proposed Statement of Defence and it boils down to this that they owe an amount but not what is claimed in the writ. Further, that they asked for particulars of the alleged debt but they have not been supplied with them and hence they are not prepared to pay.

Failure to supply particulars is no excuse for either not paying what they think is owed or not filing a Statement of Defence. It appears that the main reason for not filing a Defence is Mr. Kato's laxity. Mr. Kato himself it is clear from evidence was personally in difficulties having to attend court in a criminal action against him.

Setting aside of a judgment which is regular is a matter for the exercise of discretion of the Court. It was held by MASTER FAIRS in ACTIVE LEISURE (SPORTS) PTY LTD v CROCODILE SPORTS & LEISUREWEAR LTD (1997) 1 NZLR p350 at p351 and with which I concur that:

"In order to determine where the justice of any case would lie, there were three principles which governed an application to set aside a judgment regularly obtained: (1) the defendant must have a substantial ground of defence; (2) the delay must be reasonably explained; and (3) the plaintiff must not suffer irreparable injury if the judgment were set aside".

The defendant does not have a right to set it aside. The guidelines in the exercise of the discretion are set out in ALPINE BOOK OF TRANSPORT COMPANY INCORPORATED v SAUDI EAGLE SHIPPING COMPANY INCORPORATED (The Saudi Eagle)(1986) 2 Lloyds Rep.2(CA). According to this case the defendant must show there is a defence on the merits and not merely "triable issues".

I am not satisfied on the affidavit evidence before me that there is a defence on the merits. Their complaint is that no particulars have been supplied although they admit some money is owed. In fact it is suggested by Mr. Lateef that the defendants ought to know what is owed because it was on that debt that the Company of which they were directors and which debt they guaranteed went into liquidation.

Except for the delay principally in filing and serving a statement of defence which has been reasonably explained, namely, inaction on the part of their former solicitor, the defendants themselves have not done anything to sort out accounts.

In the outcome in the circumstances of this case for the above reasons and in the exercise of my discretion I consider it proper to grant the application on condition.

It is ordered that the default judgment dated 17 October 1997 be set aside on condition that the defendants bring into court the sum of $20,000.00 within 21 days from the delivery of this decision AND upon payment of the said sum the defendants are ordered to file Statement of Defence within 14 days AND in the absence of compliance with the Order for payment and the filing of Defence the judgment do stand.

The defendants do pay forthwith the costs occasioned by this application in the sum of $150.00.

D. Pathik
Judge

At Suva
22 May 1998

Hbc0384d.97s