Farook v Kumar [2005] FJHC 703; HBC0146.2005L (25 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0146 OF 2005L

BETWEEN:

MOHAMMED FAROOK
f/n Salim Buksh
Plaintiff

AND:

PRAVIN KUMAR
f/n Dharam Raj
1st Defendant

AND:

LAND TRANSPORT AUTHORITY
2nd Defendant

Mr. H.A. Shah for the plaintiff
No Appearance for the 1st defendant
Mr. K. Qoro for the 2nd defendant

Date of Hearing: 9 September 2005
Date of Ruling: 25 November 2005

RULING

By Summons dated the 24^th August 2005 the applicant/2^nd defendant seeks that the default judgment sealed on the 25^th July 2005 be wholly set aside and further that the 2^nd defendant be granted leave to file its statement of defence out of time.

The principle ground upon which the application is made is that the judgment is irregular and therefore it should be set aside.

The submission with respect to irregularity is dependent upon a determination as to whether the plaintiff’s claim against the 2^nd defendant is a liquidated demand or not. Order 19 Rule 2 provides for a final judgment to be entered in default of a defence for a liquidated demand only.

Order 19 Rule 3 provides that where the plaintiff’s claim against the defendant is for unliquidated damages then any judgment in default of defence is an interlocutory judgment for damages to be assessed.

The claim against the 2^nd defendant is set out in the pleadings as a claim for misrepresentation, fraud and negligence which resulted in the plaintiff purchasing from the defendant the motor vehicle which was subsequently seized by the police as the engine number and chassis number had been tampered with. This resulted in the plaintiff loosing the purchase price of the vehicle. The vehicle was purchased for the sum of $24,000.00. Default judgment entered in this matter is for the sum of $24,000.00 being the purchase price of the motor vehicle paid by the plaintiff to the 1^st defendant.

It is submitted on behalf of the 2^nd defendant and it would appear that the leading authority is the decision of the Fiji Court of Appeal in Subodh Kumar Mishra v Car Rentals (Pacific) Ltd – Civil Appeal No. 35 of 1985. In that decision the Fiji Court of Appeal referred to Knight v Abbott (1882) 10 Q.B. 11 where it was said:

“A liquidated demand is in the nature of the debt i.e. a specific sum of money due on payable under a contract. Its amount must be ascertained or ascertainable as a mere matter of arithmetic.”

The Fiji Court of Appeal in the same decision also referred to Workman Clark & Co. Ltd v Lloyd Brazaleno [1908] UKLawRpKQB 42; (1908) 1 K.B. 968 where the Court of Appeal said:

“A claim is unliquidated, where even though specified or named as a debt definite figure, its ascertainment requires investigation beyond mere calculation.”

The plaintiff’s action against the 2^nd defendant is in tort and the damages he claims must therefore be special damages which leads the claim to be an unliquidating claim.

The plaintiff clearly purchased the motor vehicle for $24,000.00 on the pleadings, however the vehicle was purchased from the 1^st defendant and not the 2^nd defendant and there is no contractual relationship with the 2^nd defendant. The loss suffered by the plaintiff must therefore be proved as against the 2^nd defendant.

The Fiji Court of Appeal in Mishra v Car Rentals also considered the distinction between setting aside a judgment for irregulatory and setting aside a judgment which was in fact regular. The Fiji Court of Appeal referred to the words of Fry LJ in Analaby v Prietorius [1888] UKLawRpKQB 55; (1888) 20 Q.B.D. 764 at 769 where he said:

“There is a strong distinction between setting aside a judgment for irregularity in which case the court has no discretion to refuse to set it aside, and setting it aside where the judgment through regular, has been obtained through some slip or error on the part of the defendant, in which case the court has a discretion to impose terms as a condition of granting the defendant relief.”

It would appear therefore that there is no alternate but to grant the relief sought by the applicant/2^nd defendant in its Summons. I note however that in the course of the hearing the Summons the plaintiff tendered to the Court a letter written by the 2^nd defendant to the Divisional Police Commander Western dated the 1^st September 2004. This letter was a clear admission on behalf of the 2^nd defendant as to its liability. In the circumstances therefore the 2^nd defendant may consider its position prior to the filing of any defence in this matter.

Orders of the Court

1. Judgment entered on the 25^th July 2005 is set aside.

2. The 2^nd defendant is given leave to file a statement of defence within 14 days.
   

3. Cost to be cost in the cause.

JOHN CONNORS
JUDGE

At Lautoka
11 November 2005