|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION
CIVIL CASE No. 98 of 2004
APPEAL CASE No. 61 of 2008
BETWEEN:
MAHENDRA KAUR s/o Ishar Singh
APPELLANT/DEFENDANT
AND:
SARJIT SINGH s/o Dharam Singh
APPELLANT/DEFENDANT
AND:
PARGAN SINGH s/o Subran Singh
RESPONDENT/PLAINTIFF
Appearances: Dr Sahu Khan for the Appellants/Defendants
Mr SK Ram for the Respondent/Plaintiff
Date of Hearing: 29 July 2008
Date of Judgment: 5 August 2008
JUDGMENT
Headnote
Default judgment – setting aside as of right; Default judgment – setting aside conditionally; Magistrates Court Rules - Order VI - ‘Form and Commencement of Suit’, Rules; Order XV – ‘Admissions’, Rules 1, 2, 4; Order XVI – ‘Pleadings’, Rules 1, 3 (e), (h); Order XXX – ‘Non-Attendance of Parties at Hearing’, Rules 1, 2, 3, 4, 5; Non-appearance of Defendants; Default judgment for full amount; Admissions of part-amount only; Deed – dispute as to execution; Withdrawal of Counsel; Unrepresented parties; Requirement to stand matter down
Subodh Kuma Mishra v. Car Rentals (Pacific) Ltd [1985] 31 FLR 49
Craig v. Kanseen [1943] 1 All ER 108
Anlaby v. Praetorious [1888] UKLawRpKQB 55; (1888) 20 QBD 764; 57 LJQB 287; 58 LT 671:
Hughes v. Justin [1894] UKLawRpKQB 33; [1894] 1 QB 667; 63 LJQB 417; 70 LT 365
1. Background
On 24 October 2005 at Ba Magistrate’s Court default judgment was entered in favour of the Plaintiff in the substantive action by Pargan Singh against Mahendra Kaur and Sarjit Singh. On 10 September 2007 Ba Magistrate’s Court granted the Defendants/Appellants’ application for setting aside default judgment, but upon conditions.
1.1 The Magistrate hearing the application to set aside determined that he should do so, albeit he was not the Magistrate who had granted default judgment, due to inordinate delay in progressing the application: Court Record, p. 25
1.2 There is no dispute between the parties as to what occurred on 24 October 2005 that led to the entering of default judgment, nor the stage pleadings had reached at that time. Rather, the dispute lies in the question whether setting aside should have been as of right and hence unconditional.
1.3 There are in effect two areas of dispute. The first relates to the entry of default judgment itself. The second to the setting aside of the default judgment.
1.5 The first dispute (entry of default judgment) revolves around whether default judgment is entered regularly or irregularly, where:
1.6 The second dispute lies in the setting aside of default judgment at all, and in the basis on which it was set aside.
1.7 The Appellants/Defendants say default judgment was entered irregularly and not in compliance with the Magistrates Court Rules, because if judgment were to be entered, it could be done only upon calling evidence from the Plaintiff. Hence, setting aside should be ‘as of right’ and hence without conditions. Further, the Appellants/Defendants challenge the Magistrate’s reliance at the setting aside upon admissions in the Statement of Defence and the contention that the onus lay upon the Defendants to prove their defence.
1.8 The Respondent/Plaintiff says there is nothing irregular about the default judgment or its entry on the record: there was evidence before the Court in the pleadings, by reason of application of the Magistrates Court Rules.
2. Judgment in Default
The Magistrate’s Court orders in the judgment in default were sealed on 17 November 2005. The Court Record shows:
JUDGMENT
BEFORE THE RESIDENT MAGISTRATE ... ON THE 24TH OF OCTOBER 2005
UPON READING the Pleadings filed herein,
AND upon hearing Mr JM Boseiwaqa as Counsel for the Plaintiff and upon leave being granted to Messrs Sahu Khan & Sahu Khan to withdraw as Solicitors for the Defendants for lack of instructions.
IT IS HEREBY ADJUDGED:
(a) That Judgment is entered for the Plaintiff in the sum of $8,973.77 (Eight Thousand Nine Hundred Seventy-Three Dollars and Seventy-Seven Cents) and interest in the sum of $897.37 (Eight Hundred Ninety-Seven Dollars and Thirty-Seven Cents) at the rate of ten (10) per centum per annum from the 22nd day of October 2004 to the 24th day of October 2005.
3. History of Action
The action began with a Statement of Claim filed in the First Class Magistrate’s Court, Western Division at Ba, on 1 December 2004. The Plaintiff claimed the sum of $8973.77, comprising:
3.1 On 13 January 2005 the Defendants filed a Notice to Defend.
3.2 On 17 January 2005, the return date, both Plaintiff and Defendants were represented by Counsel. The matter was listed for mention on 14 February 2005, with the Defendants being granted 21 days to file their defence: Court Record, p. 17
3.3 On 14 February 2005, the mention date, there was no appearance by or for the Plaintiff. The Defendants were represented by Counsel, with a further 21 days to file the Statement of Defence granted, the matter being set for 11 April 2005 for mention: Court Record, p. 17
3.4 On 11 April 2005, the parties were represented by Counsel. The court granted 21 days for the Plaintiff to file a Reply to Defence. The matter was listed for hearing on 24 October 2005: Court Record, p. 18
3.5 On 24 October 2005, the listed hearing date, the Plaintiff was present and represented by Counsel. The Defendants were not in Court and their Counsel sought leave to withdraw for lack of instructions. Leave to withdraw was granted. Counsel for the Plaintiff sought judgment in default. The Court granted judgment in default and costs against the Defendants: Court Record, p. 18
3.6 On 26 October 2005, the Defendants filed a Notice of Motion seeking to have the Judgment entered on 24 October 2005 set aside and the matter listed for hearing: Court Record, p. 38
3.6 Both Plaintiff and Defendants acknowledge that on the date of hearing, 24 October 2005, the Defendants were present at Court earlier in the day.
3.7 In his Affidavit filed on 27 October 2005 in support of the application to have default judgment set aside, the Second Defendant Mr Sarjit Singh said amongst other matters:
This matter was listed for hearing on 24th day of October 2005 and we had filed our Notice of Intention to Defend and Statement of Defence and we were ready for the trial but ... on the date of hearing there was a misunderstanding on our part as we thought our case will not commence before the morning break.
My mother [the Defendant Mrs Mahendar Kaur] and I had come to the Court at 9.00 o’clock but seeing the list I assumed that the case will not commence before 11.00 o’clock and we went away with the view to return to Court again.
Accordingly we reached Court at about 11.00 o’clock but then I was informed that Judgment by Default had been entered: Court Record, pp. 6-7
3.8 The Plaintiff/Respondent in his Affidavit in opposition to the application states amongst other matters:
On the 24th of October 2005 at approximately 9.00am I was sitting outside the Magistrates Court with my witnesses waiting for my case to be called when I saw the Defendants.
I do not know why the Defendants say that their case would be called at 11.00am when the Cause List says 9.00am. I came all the way from New Zealand for this case and waited patiently for my matter to be called. The Defendants reside here in Ba and they could have waited as well.
When my matter was eventually called I was present in Court with my witnesses. There was no sign of the Defendants. However the Defendants’ counsel was present that day and she was given leave by the Court to withdraw as solicitors for lack of instructions.
My counsel then obtained judgment in my favour: Court Record, p. 9
3.9 Adverting to the position of the Defendants on the day of the hearing, in his Ruling granting on conditions the Defendants’ application for setting aside default judgment the Magistrate said:
The 2nd defendant has filed an affidavit on behalf of her [sic] mother (1st defendant) and herself. She deposes that both of them were present at Court on 24/10/05 and had arrived at about 9.00am and saw the cause list and presumed that the case will not be called until 11.00am and went away and came back to Court at about 11.00am and found out that default judgment had been entered.
The affidavit does not state as to whether the defendants had any contact with their solicitors on 24/10/05 or a few days prior to that. I presume that they had no contact with their solicitors as Ms S. Sahu Khan sought leave to withdraw as solicitor for lack of instructions.
The plaintiff filed an affidavit in reply and stated that he came to Court on 24/10/05 at 9.00am with his witnesses. His affidavit does not state as to whether or not the defendants were present in Court in the morning.[1] He states that he came all the way from New Zealand and waited for his case to be called and since the defendants lived in Ba he states that they should have done likewise. This may suggest that the defendants were in Court in the morning of 24/10/05: Court Record, pp. 24-25
4. Conditional Grant of Application to Set Aside
In granting conditionally the application to set aside the default judgment, the Magistrate said amongst other matters that the Defendants/Appellants in the Statement of Defence:
... has admitted owing the sum claimed and they have pleaded that a sum of $3,016.00 was paid in full and final settlement ... This is [a] positive defence and the onus was on the defendant to prove the payment as the amount claimed was admitted by them and since the defendants did not appear and their counsel sought leave to withdraw for lack of instructions the Court in my view was correct in entering default judgment for the sum of $8,973.77 plus interest of $897.37.
I therefore hold that the judgment was regular ...
4.1 The Magistrate then added that in exercise of his discretion he was ‘prepared to set [the judgment] aside to allow the defendants to defend this action on the following conditions:
(i) That a sum of $9,871.14 shall be paid in Court;
(ii) That since the plaintiff resides in New Zealand a sum of $800.00 shall be paid as his air fares;
(iii) I order that the above sums shall be paid within 21 days.
4.2 Costs of the application summarily assessed in the sum of $250.00 were awarded to the Plaintiff: Court Record, pp. 25-26
5. Grounds of Appeal
The Appellants/Defendants’ Grounds of Appeal are:
6. Submissions for Defendants/Appellants and Plaintiff/Respondent
Counsel provided both written and oral submissions which were of considerable assistance to the Court.
6.1 (a) Submissions for Defendants/Appellants: The Defendants/Appellants’ position is that the default judgment was entered irregularly for it did not comply with the requirements for judgments made in the absence of a party (in this case, the Defendants). Having filed and served a Notice of Appearance and Statement of Defence, the Defendants/Appellants say, there could be no judgment in default without the hearing of evidence. In the absence of hearing evidence, judgment is said to have been entered irregularly, the Magistrate having no jurisdiction to enter default judgment.
6.2 In the face of default judgment entered irregularly, say the Defendants/Appellants, the Magistrates Court had no option but to set it aside ‘as of right’ - without conditions.
6.3 Further as to the setting aside, the Defendants/Appellants say the Magistrate was in error in ‘considering part of the Statement of Defence and not other parts’:
If he did find it necessary as a matter of discretion to refer to the Statement of Defence then he ought to have considered the whole of it. The Statement of Defence made it very clear that the full amount had been paid by [the Defendants/Appellants] but after going into accounts: Written Submissions, p. 5
6.4 It is further said that the Court was not entitled to refer only to the admission of the sum owed without ‘taking into account the context in which the admission was made’ that is, paid after ‘going into account’. In any event, say the Defendants/Appellants this reference to the Statement of Defence ‘was completely irrelevant’ as judgment could not be entered without hearing evidence per Order XXX, Rule 3 of the Magistrates Court Rules. The failure to hear evidence at default judgment stage meant the ‘procedure adopted by the Court [in the trial] was tantamount to giving evidence from the bar table’: Written Submission, pp. 5-6
6.5 Additionally, in setting aside default judgment, the finding by the Magistrate that the onus rested upon the Defendants/Appellants to prove their defence ‘as it was a positive defence’ is challenged:
... if there was [a] positive Defence then the Learned Trial Magistrate had to hear the evidence of the Plaintiff in that regard in any event. The question of who had the onus of proof at that stage was irrelevant.
In any event there was no admission made of owning the full amount for which Judgment was given. Only $3016.00 was admitted ... after going through the accounts ...: [and] the Statement of Defence ... made this very clear: Written Submissions, p. 7
6.6 Finally, say the Defendants/Appellants, there is no need for them to assert ‘merit’ in order that the judgment be set aside, for it was entered irregularly. However, the Magistrate on the setting aside application ‘saw merit in the application’ in that he set it aside, albeit on conditions: Written Submissions, p. 8
6.7 In addition to the Magistrates Court Rules, the Defendants/Appellants rely principally upon Subodh Kumar Mishra v. Car Rentals (Pacific) Ltd [1985] 31 FLR 49; also referring to Ram Raji v. Audh Raji (1966) FLR 173; FSC Ltd v. Mohammed Ismail 34 FLR 75; Evans v. Bartlam (1937) 2 All ER 646; O’Shannessy v. Dasun Hair Designers Ltd (1980) 2 NZLR 652; Hayman v. Rowlands (1957) 1 All ER 321.
6.8 (b) Submissions for Plaintiff/Respondent: The Plaintiff/Respondent says judgment was entered regularly, adverting to the principle that admissions in pleadings constitute ‘evidence’ as allegations of fact not specifically denied or admitted and taken as established at the hearing. There was no need for oral evidence.
6.9 The Plaintiff/Respondent relies on Magistrates Court Rules Order XVI, Rule 3:
this ‘provide[s] for situations where facts either have been deemed to have been established or proven’:
In that event such facts need not be established by way of oral evidence. It is already evidence adduced and proved: Written Submissions, paras [5]-[8]
6.10 The Plaintiff/Respondent goes onto say that regularity of the default judgment is shown in that:
6.11 Hence, says the Plaintiff/Respondent, the Magistrate was entitled to impose conditions ‘and correctly did so’, by reference to Subodh Kumar Mishra v. Car Rentals (Pacific) Ltd [1985] 31 FLR 49[2]
6.12 Finally, says the Plaintiff/Respondent, the order for costs (challenged by the Defendants/Appellants) was ‘correctly made’ because:
6.13 The Plaintiff/Respondent also relied upon a submission that the Defendants/Appellants had failed to establish that there were matters put before the Magistrate showing ‘any merit in the defence’ so that the application ‘should be dismissed with costs on that ground alone’, relying upon Farden v. Richter [1889] UKLawRpKQB 79; (1889) 23 QBD 124; Hopton v. Robertson [1884] WN 77, reprinted 23 QBD 125(n); also Richardson v Howell (1883) 8 TLR 445 and Watt v. Barnett [1878] UKLawRpKQB 21; (1878) 3 QBD 183: Court Record, pp. 43-44
7. Magistrates Court Rules – Provision for Default Judgment
Entry on the record of judgment in default must have a proper foundation. The Magistrates Court Rules provide for entry of default judgment in particular circumstances. Unless the circumstances exist, the Court cannot enter judgment in default.
7.1 Order III – ‘Miscellaneous Provisions’ provides for application of the High Court Rules where there is no provision in the Magistrates Court Rules for the circumstances arising ‘in any particular cause, matter, case or event’. As provision in the High Court Rules for judgment in default are consistent with those in the Magistrates Court Rules, there is no room to call upon them to provide a foundation for default judgment if the Magistrates Court Rules provide no basis for the default judgment entered here.
7.2 I turn then to the Magistrates Court Rules.
7.3 (a) Order VI – No Basis for Default Judgment: Order VI – ‘Form and Commencement of Suit’ provides for an undefended suit to be disposed by default:
Filing of notice of intention to defend
Special leave to defend where foregoing rule not complied with
Disposal of undefended suit
7.4 Order VI does not apply in the present case. Here, there was no failure to give notice of intention to defend, nor any failure to file a Statement of Defence. Order VI could not have been relied upon by the Magistrate to enter default judgment, nor for setting it aside on conditions.
7.5 (b) Order XV – No Basis for Default Judgment: Order XV – ‘Admissions’ also provides for judgment to be entered, as follows:
Notice of admissions
Notice to admit ...
Costs on refusal to make reasonable admission
Admissions by defendants
7.6 The default judgment cannot have been entered in accordance with Order XV, for judgment was entered in the whole amount, not simply upon the part of that amount admitted. Hence, Order XV provides no basis for the default judgment.
7.7 (c) Order XXX – Basis/No Basis for Default Judgment?: Does Order XXX – ‘Non-Attendance of Parties at Hearing’ provide a basis for entry of default judgment? I briefly look at each aspect, for it indicates an endeavour to ensure that the Court operates in a fair and just manner, and not peremptorily, in the instance of non-appearance.
7.8 Order XXX, Rule 1 provides for the case where neither party appears and the cause may be struck out.
7.9 Rule 2 provides for the instance of the Plaintiff’s not appearing, providing three possible approaches:
7.10 Rule 4 deals with counterclaims when the Plaintiff does not appear, whilst the Defendant does:
Where the defendant to a cause which has been struck out under rule 2 has a counterclaim, the court may, on due proof of service on the plaintiff of notice thereof, proceed to hear the counterclaim and give judgment on the evidence adduced by the defendant, or may postpone the hearing of the counterclaim and direct notice of such postponement to be given to the plaintiff.
7.11 Notably, evidence is required to be adduced by the Defendant for the judgment to be granted on the counterclaim. Further, there is a capacity in the Court to adjourn the hearing of the counterclaim so that the Plaintiff may be advised.
7.12 Rule 3 provides for the Defendant’s not appearing:
If the plaintiff appears, and the defendant does not appear or sufficiently excuse his absence, or neglects to answer when duly called, the court may, upon proof of service of the summons proceed to hear the cause and give judgment on the evidence adduced by the plaintiff, or may postpone the hearing of the cause and direct notice of such postponement to be given to the defendant.
7.13 Here, the Rule replicates Rule 4, in that evidence is required to be adduced by the Plaintiff for judgment to be entered, and there is a capacity in the Court to postpone the hearing with notice being given to the Defendant.
7.14 Rule 5 then provides for any judgment obtained against any party in their absence to be set aside at the discretion of the Court, ‘on sufficient cause shown’, and ‘upon such terms as may seem fit’.
7.15 The Plaintiff/Respondent relies upon the Court’s capacity to enter judgment in default of the Defendant’s appearance.
7.16 However, Order XXX, Rule 3 can apply so as to make the default judgment regular only if it is accepted that the Court entered judgment on the basis of evidence consistent with the claim and the nature of the defence. The Plaintiff/Respondent relies upon Order XVI for this purpose.
7.17 It is necessary therefore to go to Order XVI.
7.18 (d) Order XVI – Basis/No Basis for Default Judgment?: Does Order XVI provide a basis for the default judgment when considered in conjunction with Order XXX?
7.19 Order XVI deals with ‘Pleadings’.
7.20 Rule 1 provides for suits to ‘ordinarily be heard and determined in a summary manner without pleadings’, and for the Court to order pleadings if required. In the present case, there being both a Statement of Claim and Statement of Defence, there was no question of ‘hearing in a summary manner without pleadings’.
7.21 As to the Statement of Defence, Order XVI, Rule 3 provides amongst other paragraphs:
Defendant’s pleading to meet allegations in statement of claim
(e) The defendant’s pleading shall deny all such material allegations in the statement of claim as the defendant intends to deny at the hearing. Every allegation of fact, if not denied specifically or by necessary implication or stated to be not admitted, shall be taken as established at the hearing.
7.22 The Defendants/Appellants having made admissions in the Statement of Defence, the Plaintiff/Respondent relies on these as ‘evidence’ founding the default judgment and hence rendering it ‘regular’. The Plaintiff/Respondent calls upon Rule 3, paragraph (h) for this purpose:
Admissions: their effect
(h) The answer shall admit such material allegations in the statement of claim as the defendant knows to be true or desires to be taken as admitted, and such allegations may be taken as established without proof thereof.
7.23 This means that the admissions made in the Statement of Defence may be classified as ‘evidence’, however, it is admissions alone that come into that category. If a Statement of Defence includes both admissions and denials, or calls for strict proof, or in some other way limits what can be said to be admissions as to the whole of the matters pleaded in the Statement of Claim, then Rule 3 (h) cannot be used to support judgment in default in the entirety of the claim. That is, the Statement of Defence would have to admit whole of the Statement of Claim, or at least the key aspects of it, for default judgment to be entered in the whole of the terms or amount claimed in the Statement of Claim.
7.24 I turn, then, to the Statement of Defence.
8. Statement of Claim & Statement of Defence
To determine the extent of admissions in the Statement of Defence, its terms must be seen in conjunction with the terms of the Statement of Claim. Both are here set out in abbreviated form, noting that the Statement of Defence repeats its paragraphs 1-8 in response to both paragraphs 1 and 2 of the Statement of Claim:
Statement of Claim, para 1
Plaintiff claims from Defendants $8,973.77 owed by them to the Plaintiff plus interest at 10% per annum form 25 July 2003 pursuant to Deed of 22 July 2003 made by the Defendants in favour of the Plaintiff:
Principal amount due and owing $7,983.00
Interest at 10% $ 990.77
TOTAL $8,973.77
Statement of Claim, para 2
Defendants agreed to pay total sum due and owing plus interest by 24 July 2003 but failed refused and/or neglected to pay it.
Statement of Defence, para 1
(a) Defendants were managing and looking after the Plaintiff’s farm under Power of Attorney and withdrawing money on behalf of the Plaintiff from time to time to pay for expenses and dues.
(b) Plaintiff in or about July 2003 made allegations against the Defendant so the Defendants sought Solicitors’ advice.
(c) On 22 July 2003 Plaintiff had discussions with his Solicitor then told the Defendants that if they did not agree to payment of a certain sum according to his Solicitor they ‘could be handed over to Police’.
Statement of Defence, para 2
Defendants denied liability asking Plaintiff to go into proper account of all monies paid from his account. Plaintiff refused to do so at that stage, saying he ‘was only concerned as the monies withdrawn’ and ‘made the Defendants to execute the purported Deed ... prepared by’ the Plaintiff’s Solicitors.
Statement of Defence, para 3
Defendants received no independent legal advice and requested Plaintiff to give the purported Deed to the Defendants so it could be checked by their own legal advisers and Solicitors who had been acting for the late husband of the First Defendant and father of the Second Defendant for almost 40 years.
Statement of Defence, para 4
The Plaintiff ‘refused to do so and put undue pressure and influence on the Defendants that if they did not execute the deed ... on that day then they will be handed to the Police.
Statement of Defence, para 5
Defendants ‘did not want to involve themselves in any purported crime and executed the Deed ...’
Statement of Defence, para 6
Defendants before signing the Deed ‘demanded the Plaintiff and the Defendants to go in to proper account and the Plaintiff refused and said ‘all that will be done after the execution of the Deed’.
Statement of Defence, para 7
After execution of the Deed Plaintiff and Defendants went into account and it was agreed that $3016.00 be paid by the Defendants to the Plaintiff as full settlement provided Defendants paid that amount before Plaintiff left for overseas.
Statement of Defence, para 8
Second Defendant sold his Motor Vehicle for $4000.00 to pay the Plaintiff the amount claimed by him and $3016.00 was paid to the Plaintiff in full and final settlement of account, out of the $4000.00.
Statement of Claim, para 3
Defendants have failed to pay after demand letter of 16 September 2003.
Statement of Defence, para 10
Defendants admit receiving letter of 16 September 2003 but explained to Plaintiff’s Solicitors office of the substance of paragraphs 1-8 herein.
Statement of Claim, para 4
Plaintiff claims further interest on Principal sum at rate of 10% per annum from 22 October 2004 until date of Judgment.
Statement of Defence, para 11
Defendants deny each and every other allegation in Statement of Claim and say the action be dismissed with costs.
9. Judgment in Default versus Statement of Defence
As noted, judgment in default was granted in the whole of the sum claimed by the Plaintiff plus interest, namely $8,973.77 plus $897.37, plus (as it appears) interest at 10% from 22 October 2004 to 24 October 2005. Can it be said, however, that there was ‘evidence’ before the Court upon which this judgment was based?
9.1 The only admission made as to the sum of money owing was the amount of $3016.00: Statement of Defence, paras 7 and 8
9.2 Notably, the admission as to owing $3016.00 is followed by a claim that that sum was paid to the Plaintiff/Respondent.
9.3 Does this limited admission and its countering by the contention of having paid the sum admitted to constitute ‘evidence’ sufficient to found the default judgment made in the full amount plus interest, plus the further interest ordered for the year 22 October 2004 to 24 October 2005?
9.4 It appears to me that the answer has to be ‘no’.
9.5 As an alternative, can it be said that there is an admission that the Deed was executed by the Defendants/Appellants so that this constitutes evidence that the whole of the monies was admitted by them to be owing?
9.6 Certainly there is an ‘admission’ as to execution of the Deed. However, the allegation is that its execution was secured by coercion or duress or representations that interfered with full and free consent or agreement, or its voluntary execution. There is then the admission as to a sum (as noted) below the whole of the amount claimed in the Statement of Claim.
9.7 It does not appear to me that one can say there is ‘evidence’ through ‘admissions’ supporting default judgment for the whole of the amount.
9.8 Even if it could be said that the onus was on the Defendants/Appellants to prove their contention in the Statement of Defence that they had paid the amount they admitted was owing, there would still be an absence of evidence through admissions as to the whole of the amount of the default judgment.
9.9 Hence the conclusion must be that judgment in default was entered without evidence to sustain it. The onus was on the Plaintiff/Respondent to establish on his evidence that the whole of the sum said to be owing plus interest was due to him. He did not do this.
9.10 ‘Evidence’ does not mean solely evidence given on oath or affirmation in person from the witness box. It can (as Order XVI provides) include admissions in the pleadings. It can include Affidavit evidence. But it must be there for judgment to be entered: otherwise, judgment cannot be entered – whether in favour of a Plaintiff or a Defendant, or against a Plaintiff or a Defendant. If the evidence is not there, or not there to sustain the judgment in full, then a judgment is entered irregularly.
9.11 Hence, the Defendants/Appellants’ submission that judgment in default was entered irregularly must prevail.
10. Non-Appearance of Defendants/Appellants
Before turning to the authorities to determine what assistance they can provide, I address a further matter for consideration.
10.1 I have earlier set out Order XXX, Rule 3 which provides for the Defendant’s not appearing. However, in all the circumstances here, it bears repeating:
If the plaintiff appears, and the defendant does not appear or sufficiently excuse his absence, or neglects to answer when duly called, the court may, upon proof of service of the summons proceed to hear the cause and give judgment on the evidence adduced by the plaintiff, or may postpone the hearing of the cause and direct notice of such postponement to be given to the defendant.
10.2 Several matters are of concern:
10.3 Their being unrepresented, this meant, in turn, that the matter should have been called outside the Courtroom – the Defendants names should have been called. There is no indication on the Court Record that this was done. However, to comply with Order XXX, Rule 3, in my opinion that was the course that should have been followed.
10.4 There is of course no assurance that the Defendants would have appeared, had they been called: on their own Affidavit in Support of the application to set aside default judgment, they had left the Court premises in the belief that the matter would be called midmorning rather than at 9.00am. However, once they were unrepresented, consistent with Order XXX this opportunity should have been provided.
10.5 Further, the Court did not ‘proceed to hear the cause’. The Court ‘heard’ only the evidence that could be seen to count as ‘admissions’. (And even those admissions were countered by the contention of the sum admitted being lower than the sum claimed, and the contention of its having been paid.) The Court did not ‘hear the cause’. Hearing the cause would, in this case, have required adverting not only to the pleadings and any admissions therein which the Court could fairly consider as ‘admissions’ for the purpose of judgment in default of appearance, but hearing evidence from the Plaintiff as to the matters not admitted and indeed being contested.
10.6 It was up to the Plaintiff to prove his case. This he did not do – the Court in not requiring evidence over and above any ‘admissions’ – did not apparently require it. In not requiring it, the requirements of the Magistrates Court Rules as to entering judgment in default of the Defendants’ appearance were not complied with.
10.7 The allegations made in the Statement of Defence were serious. The Defendants should have made it their business to remain within the Court precincts until the case was called. They ought not to have taken themselves off. Some may consider it to have been foolish in the extreme not to seek out their Solicitor or wait until she made contact with them. At the same time, entering judgment in default of appearance in all the circumstances and without evidence given in support of the whole of the amount claimed and in relation to which judgment was entered meant judgment was entered irregularly.
11. The Authorities
The facts in Subodh Kuma Mishra v. Car Rentals (Pacific) Ltd [1985] 31 FLR 49 differ from those in the instant case. The Defendant had been ordered to file and serve a Statement of Defence, with the proceedings being adjourned to 7 March 1984 for that purpose. No Statement of Defence being filed or served by that date, the matter was further adjourned to 4 April 1984. on that date, still no Statement of Defence having been filed and served, judgment in default of defence was obtained by the Plaintiff in the sum set out in the Statement of Claim.
11.1 The Order under which judgment was obtained was XXXIV – ‘Enforcement of Orders’. Rule 3 provides:
Interlocutory orders may also be enforced according to the following provisions –
If a plaintiff in a suit makes default or fails in fulfilling any interlocutory order, the court may, if it thinks fit, stay further proceedings in the suit until the order is fulfilled, or may give a judgment of non-suit against such plaintiff, with or without liberty of bringing any other suit on the same grounds of action, or may make such other order on such terms as to the court shall seem fit.
If a defendant in any suit makes such default or failure, the court may give judgment by default against such defendant, or make such other order as to the court may seem just:
Provided that any such judgment by default may be set aside by the court, upon such terms as to costs or otherwise as the court may think fit.
11.2 The judgment in Mishra v. Car Rentals rested upon the basis that the Defendant had failed to comply with an interlocutory order. It was held that not only was the Court empowered to exercise its discretion to enter judgment, but this followed whether the claim was ‘liquidated’ or ‘unliquidated’ and even where the action was in tort.
11.3 This was not the case here.
11.4 Further, I observe that in Mishra v. Car Rentals in the absence of any Statement of Defence, the whole of the Statement of Claim is taken to be admitted. Again, this was not the case here.
11.5 Mishra v. Car Rentals does, however, support the proposition that where judgment is entered irregularly, the party against whom it is entered has a right to have it set aside, rather than its being a matter of discretion. The Court relied for the distinction upon Anlaby v. Praetorious [1888] UKLawRpKQB 55; (1888) 20 QBD 764; 57 LJQB 287; 58 LT 671:
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 though 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: at 769, per Fry LJ, at 52-53
11.6 It may be argued in the present case that judgment was obtained ‘through some slip or error on the part of the defendant’ – because the Defendants/Appellants failed to appear due to a ‘slip up’ in their understanding of Court listings. However, that does not follow, for the problem confronting the Plaintiff/Respondent here is that the default judgment was obtained inconsistently with the Rules. Hence, it was irregular.
11.7 As was said, again, in Mishra v. Car Rentals:
... if the judgment was obtained irregularly .... The appellant was entitled to have it set aside ex debita justitiae, but, if regularly, the Court was obliged to act within the framework of the empowering provision – in this case – the provision to Order XXXIV, r. 3 which confers an unfettered discretion upon the Court: at 53
11.8 The Court then went on to consider Order XXX, Rule 3:
... which provides that if the plaintiff appears at the hearing ‘and the defendant does not appear or sufficiently excuse his absence, or neglects to answer when duly called, the Court may, upon proof of service of the summons proceed to hear the case and give judgment on the evidence adduced by the plaintiff ...’
The underlining is ours.
So, in the instant case, if the appellant had not appeared at the hearing and judgment was entered without the hearing of the evidence both as to liability in negligence and of the special damages claimed, such judgment would have been also given irregularly with the consequences previously outlined: at 53
11.9 Further support for the proposition that an irregularity means default judgment should be set aside as of right lies in Craig v. Kanseen [1943] 1 All ER 108. There, the English Court of Appeal discussed amongst other matters the question of judgments entered irregularly. The Court cited a number of authorities and jurisprudential sources, then adverted to Hughes v. Justin [1894] UKLawRpKQB 33; [1894] 1 QB 667; 63 LJQB 417; 70 LT 365 which has similarities with what is alleged in the present matter:
There, after the issue of the writ, the parties had come to some sort of an agreement as a result of which a payment was made. In spite of that, judgment was signed for the full amount claimed. It was held that the case fell within the class of case referred to in Anlaby v. Praetorius and was one where the defendant had a right ex debito justitiae to have the judgment set aside: at 112
11.10 Albeit no Reply has been filed in respect of the Statement of Defence, there is clearly a dispute in the present case as to whether any agreement was arrived at as the Defendants/Appellants say, and whether any monies have been paid. However, this simply supports the proposition that the judgment as entered could not have been entered other than irregularly where the evidence before the Court did not support the whole of the judgment amount. Hence, upon the authorities the judgment should be set aside as of right.
12. Costs
Costs were awarded to the Plaintiff/Respondent by the Magistrate when judgment in default of the Defendants/Appellants was entered. Costs were also awarded to the Plaintiff/Respondent by the Magistrate in the application to have that judgment set aside. In addition, the Magistrate at that time awarded the sum of $800.00 to cover the Plaintiff/Respondents’ airfares as he traveled from Aotearoa/New Zealand for the hearing.
12.1 Had the Defendants/Appellants not absented themselves from the Court precincts on 24 October 2005 then presumably the matter would have been heard and determined upon on that day, in accordance with their evidence and that of the Plaintiff/Respondent. in the action Albeit I have had that the judgment was entered irregularly, the absence of the Defendants was at least in part responsible for what happened on that day.
12.2 The Defendants/Appellants have been successful in their appeal in this Court. In all the circumstances, however, I do not consider it appropriate to make an order for costs.
13. Final Matter
A perusal of the Court Record reveals the sealed Orders made by the Magistrate on 10 September 2007 in respect of the application to have the judgment of 24 October 2005 set aside as being ‘by consent’:
UPON READING the Notice of Motion dated 26th October 2005 and the Affidavit of Sarjit Singh sworn on the 26th day of October 2005 and the Affidavit of Pargan Singh sworn on the 21st day of November 2005 and upon reading the Submissions filed herein;
AND UPON HEARING Mr Peni W. Dalituicama of Counsel for the Plaintiff and Dr MS Sahu Khan of Counsel for the Defendant;
IT IS HEREBY ORDERED BY CONSENT:-
DATED this 24th day of September 2007: Court Record, p. 62.
13.1 At the appeal, no adversion was made by Counsel to these Orders and no oral or written submissions were advanced in relation to them.
13.2 I have therefore not taken into account the proposition that the orders herein appealed against were ‘by consent’. In any event, it appears to me that this must be an error for the application to set aside default judgment was the subject of oral and written submissions, and the Court Record indicates it was vigorously agitated. In that circumstance it appears unlikely that the orders were made ‘by consent’. The judgment does not record any ‘by consent’ orders: to the contrary, the orders arise directly out of the Magistrate’s judgment.
14. Note on Orders
The Orders made herein are directed to ensuring that the Magistrates Court hears the proceeding as expeditiously as possible. It is understood that the Magistrates Court at Ba is currently without a Resident Magistrate. That being so, the Orders are made to ensure that the matter proceeds in Lautoka if Ba Magistrates Court is for that reason unable to expedite the proceeding.
Orders
Jocelynne A. Scutt
Judge
Lautoka
5 August 2008
[1] On the material before the Magistrates Court at the application to set aside default judgment, it is clear that (i) the Defendants
were not in Ba Court on the morning default judgment was entered – for this is the very basis upon which the Court gave default judgment.
It is equally clear that the Defendants were at Ba Magistrates Court on that morning – both from the Affidavit of the Second Defendant and that of the Plaintiff. The Plaintiff
says he saw the Defendants whilst he was ‘sitting outside the Magistrates Court ... waiting for [his] case to be heard’.
[2] Relied upon also by the Defendants/Appellants.
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2008/158.html