NBF Asset Management Bank v Chandra [2003] FJHC 38; Hbc0492d.1998s (11 February 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 492 OF 1998S

Between:

NBF ASSET MANAGEMENT BANK
Plaintiff

and

DINESH CHANDRA
(f/n Ram Narayan)
Defendant

T. Seeto for the Plaintiff
Ms. P. Madanavosa for the Defendant

DECISION

This is the Defendant’s application filed on 19 September 2001 to set aside Judgment in default of Defence entered against him on 26 April 2000.

The following affidavits were filed:

1. Defendant, in support 19 September 2001;
2. Sera Bulavakarua, in answer, 25 January 2002;
3. Defendant, in reply 26 February 2002;
4. Sera Bulavakarua, in reply 25 July 2002.
   

Both Counsel also filed written submissions, Ms. Madanavosa on 6 November 2002 and Mr. Seeto on 29 November 2002.

The Defendant says that he has an acceptable explanation for failing to file his defence, that he has an arguable defence with good prospects of success and that the Plaintiff will not suffer irreparable harm if he is given leave to defend.

The Defendant’s explanation for failing to file a defence is that he was unfamiliar with the requirements of the High Court Rules. This explanation is unacceptable. As is clear from the papers, the Defendant is a man of some education who has been running his own business, and was buying his house with a mortgage to the Plaintiff. He has used solicitors before. Ignorance of the law is generally an unacceptable excuse for breaching it. I reject the Defendant’s explanation.

As will be seen from the Statement of Claim and subsequent pleadings this action involves a money claim by the Plaintiff and a money counterclaim by the Defendant. It is clear that if the Defendant is given leave to defend the Plaintiff will not suffer irreparable harm.

The next matter is the Defendant’s prospect of successfully defending the claim against him and of successfully prosecuting his counterclaim. Under an agreement reached with the Plaintiff the Defendant was given until 30 November 1997 (a Sunday) to sell the house (Annexure B to the second affidavit). According to the Defendant he sold the house on 27 November but did not advise the Plaintiff of this fact or produce a copy of the sale and purchase agreement until the following Monday, 1 December (see Annexure K and paragraph 28 to the first affidavit and paragraph 12 of the third affidavit). Notwithstanding these facts the Plaintiff exercised its powers as mortgagee and proceeded to sell the house at a lower price than that the Defendant had negotiated. The Defendant’s principal grievance arises from the difference in the price obtained by the Plaintiff and the price which he himself had negotiated.

Mr. Seeto submitted that the Defendant was guilty of laches, both in applying to set aside the judgment and by failing to attempt to restrain the mortgagee sale. He argued that the sale and purchase agreement was unstamped and inadmissible. It was not suggested that it was brought to the attention of the Plaintiff within the time frame stipulated in their agreement. The Defendant’s record of repayments to the Plaintiff was very poor. Mr. Seeto suggested that it would unjust to set the judgment aside when the Defendant had such an unarguable case.

While I accept that the Defendant’s case has a number of weak aspects, some highlighted by Mr. Seeto, I do not hold the view that it is devoid of all prospects of success. The sale and purchase agreement appears on the face of it to be in a proper and registrable form and there is provision for late stamping. Whether the agreement between the parties required the agreement to be brought to the attention of the Plaintiff not later than 30 November and whether the Plaintiff was justified in ignoring it are issues the resolution of which would benefit from further evidence and argument.

On balance, I have concluded that the Defendant should have leave to defend and therefore under the provisions of O 19 r 9 I set the Judgment in default of Defence entered against him aside. In all the circumstances however I am satisfied that he should provide security for the Plaintiff’s costs which I fix at $1,000. This sum is to be paid by 1 April 2003.

M.D. Scott
Judge

11 February 2003.