Credit Corporation (Fiji) Ltd v Silimaibau [2003] FJHC 45; Hbc0464d.2000s (26 March 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION HBC 464 OF 2000S

Between:

CREDIT CORPORATION (FIJI) LIMITED
Plaintiff

and

JALE SILIMAIBAU
and
MONA SILIMAIBAU
Defendants

V. Kapadia for the Plaintiff
A. Bale for the Defendants

DECISION

This is an application by the Defendants brought pursuant to the provisions of RHC O19 r 19 to set aside a Judgment entered against them on 29 January 2003 in default of Defence.

The writ was issued in October 2000. The Plaintiff, a financier, sought a total of $392,272 said to be owed to it by the Defendants under four separate asset purchase agreements involving the purchase of buses.

Although service of the writ was acknowledged, no Defence was filed and in November 2000 the Plaintiff entered final Judgment under the provisions of RHC O 19 r 2.

On 13 February 2001 that Judgment was set aside by consent and the Defendants were ordered to file their Defence within fourteen days. A Statement of Defence was filed on 20 March 2001. Although the Defendants do not deny entering into the asset purchase agreements their case is that they had been induced to enter into the agreements through “undue influence and irresponsible lending practices” by the Plaintiff. In the alternative the Defendants sought recalculation of the amount said to be owing.

On 18 December 2002 the Plaintiff was given leave to file an amended Statement of Claim. The only significant difference between the amended claim and the original is that the amount said to be owing was increased to represent the two years which had elapsed since the proceedings were begun.

On 28 January 2003 Judgment was again obtained by the Plaintiff, this time in default of Defence to the amended Statement of Claim.

On 13 February 2003 a Notice of Change of Solicitors was filed by Tamara and Associates. On 24 February the affidavit in support of the present application was filed.

The principal ground advanced in favour of setting the judgment aside is alleged default by the Defendants former solicitors “who did not inform (the Defendants) that they are not going to pursue the matter anymore or represent us in this action...”

In paragraph 9 of his affidavit the first Defendant deponent asserted that he believed that “there is a legitimate ground of defence to reject the claims stated in the Plaintiff’s amended Statement of Claim”. No copy of a proposed Defence to the amended Statement of Claim is exhibited to the affidavit as is the usual practice.

Moving the application, Mr. Bale was content to rely on the first Defendant’s affidavit. He did not present any submissions aimed at leading me to believe that the Defendants had an arguable case which carried some degree of conviction (see Day v. RAC Motoring Services Ltd [1999] 1 All ER 1007).

The Plaintiffs are a well established and reputed finance company. The claimed debt amounts to just under $650,000. It is said to arise out of asset purchase agreements in respect of 7 motor buses. The agreements were signed in August 1998, December 1998 and December 1999. The Defendants say that they did not understand what they were signing.

Were it not for the fact that there is a slightly unclear Defence on file to the original Statement of Claim I would have held that there was little merit in this application but I do not wish to shut out the Defendants entirely.

The Judgment will be set aside upon payment into Court within 30 days hereof of the sum of $100,000. The Plaintiff will have its costs of this application in any event, to be taxed if not agreed.

M.D Scott
Judge

26 March 2003