Suhana Investment Ltd v Singh [2005] FJHC 346; HBC0105.2005 (14 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0105 OF 2005

BETWEEN:

SUHANA INVESTMENT LIMITED
a limited liability company having its registered office at
11 Place, Lautoka.
PLAINTIFF

AND:

SUNIL LATA SINGH
(father’s fane Chandar Bhan Singh)
JITENDRA SINGH
(father’s name Ram Singh) both of Vuda Point, Lautoka,
Shareholders and Directors.
DEFENDANTS

Mr S Maharaj for the Plaintiff
Mr Koya for the Defendants

Date of Hearing: 29 July 2005
Dates for filing Affidavits: 12 August and 19 August 2005
Dates of Submissions: 2 September, 16 September and 23 September 2005
Date of Ruling: 14 October 2005

INTERLOCUTORY RULING OF FINNIGAN J

This is another application to set aside a default judgment. As can be seen from the details above it is fully supported and contested by affidavit evidence and by submissions of Counsel. Counsel for the Plaintiff in a letter to the Registrar protests the late filing of submissions by the Defendants.

It is the Defendants who have been in default throughout. They are seeking an indulgence from the Court. However the fundamental principle is whether justice will be done if the application is refused and the Court will not refuse to read submissions on the single ground that they were filed late. Inconvenience and extra costs (if any) can be compensated by costs orders.

The principles are well known. I have read today an interlocutory judgment by a brother Judge delivered in June 2005 on an application just like this that had been filed and served in October 2001. Simpler submissions might have yielded a quicker decision. In my opinion interlocutory rulings such as this must be delivered promptly and citation of well known authorities is barely necessary.

For that reason I shall deliver this ruling in short form. Both parties have filed detailed submissions supported by ample authorities. I have read the submissions and the authorities citied and the ruling I must make seems on those authorities beyond doubt.

Essentially I have an unfettered discretion under Order 19 Rule 9 of the High Court Rules. By decided authority I should guide myself by considering;

(a) whether the Defendant has shown a defence on the merits
(b) whether the Defendant has provided a satisfactory explanation for failure to take action
(c) whether the Plaintiff would suffer prejudice if judgment were set aside; and
(d) the reason for delay if any in making the application. The bottom line is whether it is just in all the circumstances to set aside the judgment.

Counsel for both parties are fully familiar with the facts of the claim and of the proposed defence. I have no doubt that the Plaintiff will suffer little or no prejudice if judgment is set aside. The reason for the delay in taking action has at least been explained. The Defendants however are now required to act promptly, they have already delayed the Plaintiff by filing no statement of defence, suffering default judgment and making this application. The Court will now keep them up to the mark. As well they must pay the Plaintiff’s indemnity costs on this application. To be allow to continue they must comply with the conditions I shall set.

Decision:

For those reasons I make the following orders;

(1) An order setting aside and staying execution of the default judgment entered on 8 June 2005;

(2) An order that the Defendants file and serve their statement of defence within 7 days of this ruling.

(3) The Defendants must indemnify the Plaintiff for its legal costs in this application. To avoid further delay I shall assess quantum summarily taking account of the appearance of Counsel for the Plaintiff, perusing and filing affidavits and submissions and appearance for this ruling. I assess costs at $800.00. This order is against both Defendants jointly and severally. The order must be complied with by 4.00pm on 28 October 2005.

(4) The Defendants must comply with both the latter orders by their due dates. If there is default on either one of those dates the Plaintiff may apply and I shall consider rescinding the setting aside order.

D.D. Finnigan
JUDGE

At Lautoka
14 October 2005