IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 62 OF 2005L

NO. 44 OF 2007

BETWEEN

DOR SWAMY also known as DORSAMI REDDY
Plaintiff

AND

DHANBHAGYAN and MANIKAM REDDY
Defendants

Appearances: Pillai Naidu & Associates for plaintiff
Gordon & Co. for defendants

Date of Hearing: 5 April 2007
Date of Decision: 5 April 2007

Decision

[1] This is the defendants application, by motion filed on 24 August 2006, to set aside orders made in their absence and for other orders inter-alia:

(i) that Messrs Pillai Naidu be ordered not to act for the plaintiff any longer by reason of serious conflict of interest

(ii) that tenders received by the plaintiff be opened and be deposited, intact, into Court

(iii) that Log Nadan be given leave to be joined as a defendant

(iv) that the parties be given leave to file further affidavits

(v) that the originating summons be heard inter-parte.

[2] On 9 August 2006 orders were made in favour of the plaintiff in terms of the Amended Originating Summons filed on 21 April 2005. The orders were made in the defendants absence. Those orders were stayed on 24 August 2006 and prayer (2) above was granted.

[3] From the competing affidavit material before me I am satisfied that the defendants have met the pre-requisite of showing that there are questions and issues raised fit to be determined. The onus of establishing triable issues has been met.

[4] The application to set aside the orders made in the defendant’s absence was promptly made. However the reasons advanced for non-appearance are not compelling. The fault lies with the defendant’s previous solicitors on record. The plaintiff should not be prejudiced by the defendant’s failure to appear on 9 August 2006. The record shows that after the amended originating summons was filed, the case was called and adjourned fifteen (15) times on the basis that the parties had settled their dispute. The reasons for the continuous delays are partly attributable to the defendants – one of the trustees had emigrated to the United States and there were delays caused by difficulties obtaining instructions in regard the proposed terms of settlement. That an Estate matter has languished in the Court system for five years is extremely detrimental to all interested parties. The injustice to the plaintiff occasioned by further delay in final resolution is able to be compensated by an appropriate order for costs.

Orders

i) the orders made on 9 August 2006 are set aside

ii) I decline prayer (B) of the motion – the factual and legal basis has not been established

iii) Leave granted to Log Nadan to be joined as a defendant. I also grant leave for him to file an affidavit. To avoid further delay, I order this be filed and served no later than 19 April 2007.

iv) Any amended affidavit by the plaintiff is to be filed and served no later that 4.00 pm 3 May 2007

v) The plaintiff is to be paid costs as condition of the setting aside, assessed in sum of $1000.00 to be paid by 4.00 pm 19 April 2007

vi) Case adjourned for mention 18 May 2007 to fix inter-parte hearing date.

Gwen Phillips
JUDGE

At Lautoka
5 April 2007