On 15th June 1999, the Plaintiff received a letter from the 2nd Defendant in the foll terms:
“Further to your offer to sell the above pries, this is to confirm that our Cabinet sub-Committee has approved the purchase of your
abur above properties in the sum of $761,996.40. We are in the process of preparing the transfer document and we shall be grateful
if you instruct the Fiji Development Bank to discharge their mortgage over the same.”
The letter is signed by an E.V. Rabuka, Senior Legal Advisor. The Transfer Document in respect of the 34 lots at Macuata, was duly
stamped, in June 1999. Thereafter, the Defendants did not take any further steps to complete the sale.
The Plaintiff claims that he made financial commitments in the belief that the sale was to be effected and that he suffered fina loss
as a result. The stat statement of claim seeks a declaration that the Defendants are “bound to honour and perform” the letter of
15th June 1999, an order for specific performance of the letter, and a Declaration that the Defendants have contravened Sections
54 and 55 of the Fair Trading Decree 1992. The Plaintiff also seeks damages.
Service of the Writ of Summons was acknowledged on 1st November 1999. However, no Defence was filed. On 30th November 1999,Plaintiff
applied for leaveleave to enter judgment under Order 19 Rule 7 of the High Court Rules 1988.
The application was heard on 13th January 2000. Mr E. Walker, Counsel for the State said he had not receinstructions in respect of
t of the matter, and that no instructions were likely to be forthcoming until after 18th January 2000.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Having heard both counsel, I ordered in terms of the summons of 30th November, tayed execution of judgment to 25th January 2000.
The Defendants now seek to set aside Judgment which was entered. The Summons dated 17th of February 2000 is supported by the affidavit
of Luke Ratuvuki, Permanent Secretary for Land Development.
In the affidavit Luke Ratuvuki states that no defence was filed because instructions were awaited from Cabinet in respect of a proper
settlement. The matter was not discussed by Cabinet until its meeting of 18th January 2000. By this time, judgment had already been
entered.
The affidavit states that the letter written to the Plaintiff of 15th June 1999 was not a binding cct for sale, and that the Statute
of Frauds Act 1677 requirequired all contracts for the sale of land to be in writing and to be by way of deed. The affidavit states
that the Fair Trading Decree did not apply because the State is immune from prosecution by virtue of section 2 of the Decree, that
in any event sections 55 and 56 were relevant only to criminal proceedings, and that the Government is not in a “business” for the
purposes of the Decree.
On these grounds the Defendants say they have a meritorious defence.
The Plaintiff filed an affidavit in reply by Ik Chin Kang director and shareholder of the Plaintiff. In that affidavit, the Plaintiff
says that various attempts to settle the matter showed that the Defendants knew they did not have a good defence, that the Defendants
were given ample time to settle the matter, that the Plaintiff will be prejudiced in its business if judgment is set aside, that
there was a formal contract between the parties in the form of the letter of 15th June 1999.
The application was heard on 24th February 2000. Counsel submitted on the basis of the affidavits filed, counsel for the Stating an
additional point that that Section 15(1)(a) did not permit the Court to make an order for specific performance against the State.
He did not however argue that the Default Judgment was thereby irregular, merely that it would have required amendment in any event.
This last matter would clearly be relevant, if this application issed and the court were to consider correcting any irregularity under
Order 13 Rule 10 of thof the High Court Rules.
The law on the setting aside of default judgments is well-settled since the Court of Appeal ion in Alpine Bulk Transport Co. Inc. -v- Saudi EagleEagle Shipping Co. Inc. The Saudi Eagle (1986) 2 Lloyds Rep. The matter is a discretionary one and the purpose of the power is to avoid the injustice which may be caused
if judgment is not entered on the merits. The primary question is whether the Defendant has shown that he/she has a defence of some
merit. However the cause for delay is also relevant.
In this case the Defendants have not annexdraft Defence to the affidavit of Luke Ratuvuki. However the affidavit itself raises defencefence
which are, in my view, clearly meritorious. Apart from the issue of the Statute of Frauds, the affidavit says “The letter of 15th
June 1999 is merely an offer to purchase the Plaintiff’s land, it did not constitute a contract. It lacks precise details of all
the properties and was not signed by both parties. There is no mention in the letter of how or when payment is to be made.”
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Furthermore, the issue raised in the affidavit in respect of the applicability of the Fair Trading Decree to Goent business, and in
respecespect of the applicability of sections 54 and 55 of the Decree to civil proceedings are matters which in my view warrant a
trial on the merits of the case.
The reason given for the delay on the other hand, is not compelling. Irrespective of attempts to settle, the writ was filed on 27th
October 1999. A failure to receive instructions from the relevant Ministry and from Cabinet for three months thereafter, is hardly
an impressive reason for failing to file a defence.
Nevertheless, the overriding consideration isher or not the Defendants have filed an affidavit disclosing a meritorious defence. They
haey have done so.
The Plaintiff says that the damage caused by the delay is so prejudicial that judgment should not beaside.
However I am of the view that the Defendants should not be prevented seeking a decision on the merits, and that the Plaintiff if he
succeeds in the action, mus, must do its best to compute damage to his business.
I therefore order in terms of the Defendants’ summons of 17th Fry 2000. The Defendants must file their Defence within 14 days. Costs
are in the cause.
ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> Nazhat Shameem
JUDGE
At Suva
9th March 2000
Hbc0497j.99s
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