Dream Cars (Fiji) Ltd v Williams and Gosling Ltd [2001] FJHC 239; HBC178.2000 (10 October 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC178 OF 2000

BETWEEN:

DREAM CARS (FIJI) LIMITED
a limited liability company having its registered office at Nadi
Plaintiff

AND:

WILLIAMS AND GOSLING LIMITED
a limited liability company having its registered office at Suva and carrying on
business in Fiji as Cartage Contractors and Freight Agents
Defendant

Hari Ram for the Plaintiff
F. Keil for the Defendant

Dates of Hearing: 19th April, 17th May 2001
Date of Ruling : 10th October 2001

RULING

The Plaintiff applies by Summons dated 26th January 2001 to set aside Judgment in Default of Defence to Counter-Claim entered against the Plaintiff on the 26th of July 2000 by the Defendant. The application is opposed.

In its Statement of Claim the Plaintiff states that it imported twelve motor-vehicles from Japan and agreed with the Defendant that on arriving in Fiji the vehicles would be kept in its enclosed Bond at Walu Bay.

It states that the vehicles arrived in Suva on or about the 4th of December 1998 and that the Defendant would keep them in its enclosed Bond at the agreed price of $1,200.00 per month for the twelve vehicles.

The Statement of Claim continues that contrary to the agreement the Defendant did not keep the vehicles in its enclosed Bond but in open space close to the sea resulting in them being damaged by weather, sea water, the environment and being unsecured.

The Statement of Claim then alleges that the Plaintiff suffered damages at the rate of $10,000.00 per vehicle inclusive of shipment and freight charges. The Plaintiff then claims $120,000.00 and general damages.

On the 7th of June 2000 the Defendant served a Statement of Defence and Counter-Claim on the agent for the Plaintiff’s then former solicitors in Suva. The Defence denies any agreement to keep the vehicles in an enclosed area and makes a Counter-Claim which alleges that although it provided storage facilities for the vehicles the Plaintiff has failed to pay the Defendant the agreed storage fee of $1,200.00 per month for the twelve vehicles from December 1998 to April 2000 in the sum of $23,872.50 inclusive of VAT.

On the 26th of July 2000 as the Plaintiff had not filed any Defence to the Counter-Claim of the Defendant it entered Judgment in Default of such Defence in the sum of $23,872.50 and $3,960.00 at the rate of $320.00 per month for three months from the 1st of May 2000.

By the 26th of January 2001 the Plaintiff had engaged a new solicitor and on that date issued a Summons to have the Judgment in Default of Defence to Counter-Claim set aside.

The Summons is supported by an affidavit of Michael Fenech a Director of the Plaintiff who states that although he gave detailed instructions to the company’s former solicitor it was through the latter’s neglect that the Plaintiff failed to file any Defence to the Counter-Claim.

In a very persuasive submission the Defendant points to inconsistencies and contradictions in the affidavit of Mr. Fenech.

It describes as preposterous the suggestion by the Plaintiff that storage charges would only be paid if and when the Plaintiff decided to seek the release from the storage of a particular vehicle.

The Defendant also alleges a lack of credibility in the Plaintiff’s allegations in support of its application to set aside the judgment.

Clearly the allegations made by the parties raise triable issues but in my judgment at this very early stage of the action it would be unwise to grant the Defendant’s application. One of the best statements on the practice to be applied by the Court was made by Lord Atkin in Evans v. Bartlam (1937) AC 473 in the passage frequently cited in the Courts at p.480:

“The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.”

Consequently I shall give the Plaintiff leave to set aside the Judgment in Default but on condition that it pays the Defendant’s costs to date which I fix at $500.00 within 14 days of the delivery of this Ruling.

The Plaintiff is to deliver a Reply to Defence and Defence to Counter-Claim within 7 days of the date of this Ruling after which the action is to take its normal course. There will be Orders in these terms.

JOHN E. BYRNE