Gordon v Ghim Li Fashions (Fiji) Ltd [2005] FJHC 366; HBC0167.2005 (26 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0167 OF 2005

BETWEEN:

RONALD RAJESH GORDON, PATRICIA PRANITA GORDON,
ANITA ANGELINA GORDON and VERONICA VINITA GORDON
all children of Charles Gordon all of 8 Covuli Street, Lautoka and Barrister & Solicitor, Accountant, School Teacher and Barrister & Solicitor respectively
PLAINTIFFS

AND:

GHIM LI FASHIONS (FIJI) LIMITED
a duly incorporated company having its registered office situate at 12 Walu Street, Marine Drive, Lautoka, Fiji and GHIM LI APPAREL (FIJI) LIMITED a duly incorporated company having its registered office situate at 12 Walu Street, Marine Drive, Lautoka, Fiji both trading as GHIM LI GROUP OF COMPANIES.
DEFENDANTS

Mr S K Ram for the Plaintiffs
Mr I Fa for the Defendants

Date of Hearing: 9 September 2005
Date of Ruling: 26 October 2005

INTERLOCUTORY RULING OF FINNIGAN J

This is an interlocutory application by the Defendants to set aside a default judgment entered against them on 13 July 2005.

I have had written submissions from Counsel for both parties and have tried to absorb what facts there are in the affidavits of the two deponents to which Counsel have referred me.

The pleadings the affidavits and the submissions are all verbose. The affidavits are full of arguments and submissions.

Early on I urged Counsel to settle this matter and I am sure they are able to do that. If however the issues have to be litigated then the Court will expect Counsel, who are able and experienced, to reduce the causes of action to their simple terms and conduct the litigation with reasonable economy.

I turn to the default judgment, entered on 13 July 2005. I shall deliver this ruling in short form without specific reference to any of the submissions made Counsel. In my view the default judgment is irregular and cannot be sustained. For this there are several reasons.

1. Judgment was entered against both Defendants. Judgment is entered on the pleadings only. There is nothing in the Statement of Claim to sustain any cause of action against Ghim Li Fashion (Fiji) Limited.
   
2. In the present case judgment was sought on a pleaded claim for special damages of $35,345.00. That figure is not itself sustained by the pleadings in the Statement of Claim. It is just a figure. It is apparently based on a plea that a “quotation” had been obtained for repair work allegedly caused by the default or negligence of the second named defendant. It included an element of three months’ rents for a period of “2 – 3 months” which the Statement of Claim claimed would be necessary for the carrying out of the repair work. None of this amounts to a liquated demand so Order 19 Rule 2 does not apply. At best they are unliquidated damages and under Order 19 Rule 3 the most to which the Plaintiffs were entitled was interlocutory judgment or damages to be assessed and costs.
   

Defendants’ Counsel submits that the Writ of Enforcement is irregular because it has been executed on property which belongs solely to the first named defendant against whom there is no cause of action. He also submits that it is irregular because it was issued out of the Magistrate’s Court. Counsel made a third submission, that the two companies named as Defendants are separate entities and are, in effect, strangers to each other. I mention these submissions not in order to make a decision about them but in order to record that in my view the two companies are so closely inter-twined that if at trial the Plaintiff is able to establish any causal connection with Ghim Li Fashion (Fiji) Limited then, even though it is not a contracting party in the contract sued upon, I would be loath to strike it from the action.

I am aware of Counsels’ other submissions but make no further comment except to say that some of them in my view are misdirected. I make the following orders.

Orders:

1. The judgment entered by default on 13 July 2005 is wholly stayed and set aside;
   
2. Costs are fixed in favour of the Defendants and summarily assessed at $800.00.
   
3. The Writ of Enforcement (“FIFA”) is hereby set aside and any items detained in execution of the default judgment are hereby freed from its effect.
   

D.D. Finnigan
JUDGE

At Lautoka
26 October 2005