Chandramma v Qaranivalu [2005] FJHC 678; HBC0003.1996L (11 January 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0003 OF 1996L

BETWEEN:

CHANDRAMMA
f/n Ramaiya
Plaintiff

AND:

JOSEVATA QARANIVALU
1st Defendant

AND:

RAM CHAND
f/n Sukh Lal
2nd Defendant

Counsel for the Plaintiff: Ms. V. Patel
Counsel for the 2nd Defendant: Mr. V. Qereqeretabua

Date of Hearing & Judgment: 11 January 2005

EXTEMPORE JUDGMENT

This matter comes before the court by way of Notice of Motion filed on behalf of the 2^nd defendant on the 11^th November 1999. In that motion the 2^nd defendant seeks that the judgment entered in default of a defence having been filed against the 2^nd defendant be set aside. In support of that Notice of Motion, the 2^nd defendant relied upon an affidavit sworn by him and by further affidavits sworn by Rafik Khan, both affidavits filed on the 11^th November 1999.

Default judgment was entered on the 13^th September 1998 and that judgment was entered in the sum of $1,820.00, which from the pleadings purports to be special damages and also general damages be assessed, interest and costs.

The issues to be considered by the court have been clearly set out in Russell v Cox [1983] NZLR 654 at 659 where Hardie-Boys J. describes the exercise of the discretion as being whether it is just in all the circumstances to set the judgment aside and if so, whether terms should be imposed. He went on to say that the justice of the case is to be generally measured against 3 factors, which he described as being non-exclusive. These factors are:

1. Whether the delay has been reasonably explained.

2. Whether a substantial ground of defence been disclosed.

3. Whether the plaintiff will suffer irreparable injury if the judgment is set aside.
   

The explanation given for the delay is that the 2^nd defendant only became aware of the judgment 7 days prior to the filing of the application to set aside. There is no explanation given in the affidavits filed as to the delay in filing a defence by the 2^nd defendant.

On behalf of the 2^nd defendant, it is today sought to tender to the court a letter dated 1998. Tender of this letter is rejected notwithstanding the material contained in the affidavits filed on behalf of the parties to this matter. The allegations that this letter will lead to, have not previously been raised.

The 2^nd defendant does show that there is a substantial ground of defence which put simply is the ownership of the subject vehicle at the relevant time.

The third factor for consideration is whether the plaintiff will suffer irreparable injury if the judgment is set aside. It is trite to suggest that any plaintiff must suffer irreparable injury with a delay of 6 years or more. It is submitted that witnesses are no longer available. They have migrated and memories of course must fail over time.

Whilst it is repeatedly submitted in this court that delays of this type are at the hand of the court rather than the hand of the parties, I note in this matter that little appears to have been done by the 2^nd defendant to bring this notice of motion to hearing, it having been filed as I earlier said on the 11^th November 1999.

It is submitted on behalf of the 2^nd defendant that the judgment is irregular in that the special damages are indeed not a liquidated amount and that the plaintiff bears the burden of proving those damages. With this submission I agree.

When I apply the tests, which I have referred to earlier as expressed by Hardie-Boys in Russell v Cox, and attempt to determine whether it is just in all the circumstances to set the judgment aside, I find that I am unable to be satisfied that that is so and that I am obliged to exercise the courts discretion to decline to set the judgment aside. However as I have said, I accept the 2^nd defendant submission with respect to that part of the judgment that relates to the quantification of the special damages and propose that the judgment be varied to delete the reference to the quantified special damages and to order that the special damages and general damages be assessed together with interests and costs.

Costs to be costs in the cause in the circumstances and I so order.

JOHN CONNORS
JUDGE

At Lautoka
11 January 2005