Kumar v Sabeto Valley Investments Ltd [2005] FJHC 654; HBC0345.2001L (3 May 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0345 OF 2001L &
CIVIL ACTION NO. HBC0392 OF 2001

BETWEEN:

PRANIL KUMAR
f/n Parmendra Kumar
Plaintiff

AND:

SABETO VALLEY INVESTMENTS LIMITED
1st Defendant

AND:

REIAZ ALI
f/n Riyasat Ali
2nd Defendant

Counsel for the Plaintiff: Mr. R. Chaudhary
Counsel for the Defendants: Mr. F. Koya

Date of Hearing & Ruling: 3 May 2005

EXTEMPORE RULING

Before the court is a Notice of Motion filed on behalf of the 1^st defendant on the 12^th April 2005. The Notice of Motion seeks that the default judgment entered on the 23^rd May 2002 against the 1^st defendant in Matter No. 392 of 2001 be set aside and similarly, with respect to the default judgment entered on the 5^th December 2001 with respect to Matter No. 345 of 2001 and further that the 1^st defendant be granted leave to defend the plaintiff’s claim.

The applicant alternatively seeks an order that if the orders sought in the motion be refused that leave be granted to file an appeal against the judgments entered in these matters. I consider it inappropriate to deal with the alternative order sought in this application and only propose to deal with Orders (i) and (ii).

Should it be that the 1^st defendant/applicant then seeks some other alternate relief I think it should come by way of a separate application at the relevant time.

The history of these matters are that the plaintiffs were injured in a motor vehicle accident on the 27^th July 2001. At the time of the motor vehicle accident, the plaintiffs were in the employ of the 1^st defendant. The motor vehicle was owned by the 1^st defendant and it was being driven by the 2^nd defendant. The accident occurred at about 9.00pm at night.

The defendant failed to file a defence, as a result of which, the plaintiff obtained judgment by default in Matter No. 345 of 2001 on the 5^th December 2001 and Matter No. 392 of 2001 on the 23^rd May 2002. The plaintiffs subsequently served upon the 1^st defendant notice of assessment of damages and the matters were ultimately listed for assessment of damages before the court.

Counsel appeared for the 1^st defendant from time to time and it is apparent from the court files was well aware of the existence of the proceedings and the fact that they had been set down for hearing for assessment of damages. The 1^st defendant failed to appear at the hearing and the matter proceeded in the absence of the 1^st defendant with evidence being adduced by the plaintiff in support of the respective plaintiffs claim for damages.

Judgment was ultimately delivered by the court on the 8^th December 2004 with respect to both matters. Following judgment, the plaintiff then sought to enforce that judgment by way of garnishee proceedings. It is after those garnishee proceedings was served upon the garnishee that 1^st defendant then saw fit to make application to the court to set aside the default judgments entered in December 2001 and May 2002 respectively. There is indeed an inordinate delay by the 1^st defendant with respect to the filing of these applications.

It is submitted on behalf of the 1^st defendant that the most relevant consideration of the court is whether there is a defence on the merits and ultimately the interest of justice.

Applications of these types have been considered by the court on numerous occasions. In Fiji National Provident Fund v Shri Datt – 34 FLR 67 – decision of Fatiaki J. of the 22^nd July 1988, His Lordship there highlighted the recognized tests as being:

(a) Whether the defendant has a substantial ground of defence to the action.

(b) Whether the defendant has a satisfactory explanation for his failure to enter an appearance to the writ; and

(c) Whether the plaintiff will suffer irreparable harm if the judgment is set aside.

These tests have in part come to the courts of this country from the well known decision of the New Zealand High Court where Hardie-Boys J. said in Russell v Cox [1983] NZLR 654 at 659:

“The court has a discretion. The tests being whether it is just in all circumstances to set the judgment aside and if so, whether the terms should be imposed. The justice of the case is generally to be measured against 3 factors, although they are not exclusive and the relative weight to be given to each will vary according to the circumstances. These factors are whether the delay has been reasonably explained secondly, substantial ground of defence has been disclosed and thirdly, the plaintiff will suffer irreparable injury if the judgment is set aside.”

It is of note that in Russell v Cox, it was emphasized that the court has a discretion not only as to the matters to be considered but more particularly as to the weight to be placed on the three generally accepted factors.

The affidavit filed on behalf of the 1^st defendant seeks to explain the delay upon one basis alone and that might be described as the dilatory behaviour of the then managing director of the 1^st defendant company.

I do not consider that the dilatory behaviour of an officer of the 1^st defendant company is a satisfactory explanation as to the delay particularly delay of the extent that exists in these matters.

In paragraph 22 (ii) of the affidavit of Mohammed Ashik Khan sworn on the 8^th April 2004 in support of this application, it is stated:

“The vehicle was driven by the 2^nd defendant Reiaz Ali with the consent of the defendant.”

The draft defence annexed to the affidavit seeks to plead in paragraph 3.2 that the 1^st defendant denies that at the material time, the 2^nd defendant was acting as servant and/or agent of the 1^st defendant. This pleading appears to be in conflict with the evidence that has been placed before the court. In all other respects, the draft defence appears to be nothing more than a mere denial.

The plaintiff might not suffer irreparable harm if the judgment is set aside but certainly there is a risk that the plaintiff will suffer harm. The accident occurred on the 27^th July 2001. Memories of necessity must fade. The matter cannot be re-listed for hearing in this court before July 2006. The matter was given a hearing date. The parties were clearly placed on notice. The 1^st defendant was clearly aware of the hearing dates allocated to the matters and the 1^st defendant had chosen not to participate.

I am of the opinion that the interests of justice do not in all of the circumstances in these matters justify the setting aside of the judgments that have been entered. In reaching that conclusion, I do so in reliance of Russell v Cox and the discretion that rests with the court. Both as to the matters to take into account and the weight to place on the fundamental matters in the particular circumstances of each case and accordingly, the Notice of Motion is dismissed.

The defendant is to pay the plaintiff’s costs of the motions assessed in the sum of One Thousand Dollars ($1000.00) in total being Five Hundred Dollars ($500.00) with respect to each matter.

JOHN CONNORS
JUDGE

At Lautoka
3 May 2005