Goldstein v Sofitel Fiji Resort & Spa [2010] FJHC 92; Civil Action 47.2009 (17 March 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 47 OF 2009

BETWEEN:

RONNA LYN GOLDSTEIN
Plaintiff

AND:

SOFITEL FIJI RESORT & SPA
Defendant

BEFORE THE HONOURABLE MR JUSTICE R. P. HETTIARACHCHI

Counsel for the Plaintiff: Mr. Banuve
Counsel for the Defendants: Mr. S. Balenitabua

Date of Judgment: 17th March, 2010

DECISION

The defendant through his Solicitors filed summons dated 3/2/2010 and applied that the judgment by default entered on 2/10/2009 against the defendant be set aside.

A Litigation executives of the defendants lawyers named Romulus Koliveo has filed an affidavit stating the facts on which the defendant seeks to get the default judgment set aside.

The writ of summons was filed on 10/2/2009 was served on the defendant. Having acknowledge the service of summons the defendant by letter dated 20/3/2009 requested from the plaintiff that the defendant be allowed a period of six weeks to get proper instructions and prepare these statement of defence.

In response to that the defendant was granted time till 24/4/2009 to file statement of defence.

However the defendant’s solicitors sent another letter on 7/5/2009 to plaintiff’s solicitors asking for a further extension of time explaining that they were unable to obtain full instructions within the time allowed by the plaintiff.

But the defendant was served the default judgment on 7/5/2009.

The defendant’s argument based on two grounds:

(1) The defendant couldn’t file his statement of defence in time because of the delay in obtaining relevant instructions.

(2) The defendant has a substantial defence.

As for the first ground to set aside, there is no doubt that there has been a delay on the part of the defendant.

The defendant was granted six (6) weeks by the plaintiff to obtain adequate instructions and also to investigate the plaintiff’s allegations, which was indeed a reasonable time for the defendant to file his statement of defence.

Therefore it is very clear that the defendant had ample time to get proper instructions and file statement of defence though he failed to do so. Therefore the defendant’s reasons for the delay in filing of a defence are far from satisfactory and I see no merits on those grounds to set aside the judgment by default.

However in considering the second ground argued by the defendant’s counsel it appears that the defendant has proved that he has a substantial defence. Considering the plaintiff’s statement of claim it appears that though the plaintiff sustained injuries at the defendant’s resort one cannot exactly infer that it happened solely due to the negligence of the defendant or its servants or agents.

On the other hand a contributing negligence on the part of the plaintiff also cannot be completely ruled out.

The medical report pertaining to the plaintiff’s condition prepared by the Orthopaedic Surgeon Dr E.D. Tuloga indicates that the plaintiff had similar complaint of back pain when seen on 25/7/2006 and also she had symptoms of lower back pain even before the alleged fall which further strengthen the fact that the defendant has a substantial and meritorious defence.

Therefore it is evident that the nature of defence required to be shown in this applications of this nature has been shown adequately by the defendant.

Further, in considering the application of the defendant there are other authorities and legal principles which I have considered.

The principles governing the setting aside of default judgment are well settled and are very clearly stated in the Supreme Court Practice 1999 Volume 1 at 157 as follows:

- Regular judgment – if the judgment is irregular, then it is an (almost) inflexible rule that there must be an affidavit of merits i.e. an affidavit stating facts showing a defence on the merits (Farden vs Richtor [1889] UKLawRpKQB 79; (1889) 23 Q.B.D 124. "At any rate where such an application is not thus supported, it ought not to be granted except for some very sufficient reason", per Huddleston, B. idbid. p.129, approving Hopton vs Robertson (1884) W.N.77, reprinted 23 Q.B.D.126 R; and see Richardson vs Howell (1883) 8 TLR 445; and Watt vs Barnett (1878) 3 Q.B.D.183 at 363).

For the purpose of setting aside a default judgment, the defendant must show that he has a meritorious defence. For the meaning of this expression see Alpine Bulk Transport Co. Inc. vs Saudi Eagle Shipping Co. Inc.; The Saudi Eagle (1986) 2 Lloyd’s Rep 221, CA.

On the application to set aside a default judgment the major consideration is whether the defendant has disclosed a defence on the merits; and this transcends any reasons given by him for the delay in making the application even if the explanation given by him is false (Vann.V.Awford (1986) 83 L.S. Graz.1725; The Times, April 23, 1986, C.A.). The fact that he has told lies in seeking to explain the delay, however, may affect his credibility, and may therefore be relevant to the credibility of his defence and the way in which the court should exercise its discretion (see para. 13/9/18, below).

In Burns vs Kondel (1971) 1 Lloyd’s Rep 554 it was held by Lord Denning, M.R. Fenton Atkinson, LJ and Sir Gordon Willmer that:

(1) That a defence on the merits does not mean a defendant must show a good cause of defence but need only show one which discloses an arguable or triable issue.

(2) In an accident case it is sufficient if defendant can show that there is a triable case of contributory negligence.

In deciding the issue of "delay" I consider the following extract from the judgment of Lord Atkin in Evans vs Bartlam (1937) 2 All E.R. 550.

"It was suggested in argument that there is another rule, that the applicant must satisfy the court that there is a reasonable explanation why judgment was allowed to go by default, such as mistake, accident, fraud or the like I do not think that any such rule exists, though obviously the reason, if any, fear allowing judgment and thereafter applying to set it aside is one of the matters to which the court will have regard in exercising its discretion. If there were a rigid rule that no one could have a default judgment set aside who know at the time and intended that there should be a judgment signed, the two rules would be deprived of most of their efficiency. The principle obviously is that, unless and until the court has pronounced a judgment on merits or by consent, it is to have the power to revoke the expression of its coercive power where that has been obtained only by a failure to follow any of the rules of procedure"

In addition to that I further consider the following extract from the judgment of Lord Wright in Evans vs Barlam (1937) 2 All E.R 656, where it states "The primary consideration is whether he has merits to which the court should pay heed; if merits are shown the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication. This point was emphasized in Watt v. Barnett [1878] UKLawRpKQB 21; (1878), 3 QBD. 183;

............ the Court, while considering delay, have been lenient in excluding applicants on that ground. The Court might also have regard to the applicant’s explanation why he neglected to appear after being served, though as a rule his fault (if any) in that respect can be sufficiently punished by the terms as to costs or otherwise which the court in its discretion is empowered by the rule to impose"

In Grimshaw vs Dunbar [1953] 1 QB 416 Jankins L.J. stated:

"Be that as it may, a party to an action is prima facie entitled to have it heard in his presence; he is entitled to dispute his apponent’s case and cross examine his opponents witnesses and give his own evidence before the court.

Prima facie that is his right, and if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect without injustice to other parties, that litigant who is accidently absent should be allowed to come to the court and present his case – no doubt on suitable terms as to costs as was recognized in Dick v. Piller [1953] KB 497"

In the light of above authorities cited and submissions made by the counsels I am of the opinion that the application to set aside the default judgment should be granted.

Therefore I set aside the judgment by default against the defendant on condition that the defendant pay the sum of $1,000.00 costs to plaintiff’s solicitors within 14 days of this order. If the defendant fails to pay the said sum the default judgment will stand.

Once the costs are paid the defendant is ordered to file and serve a statement of defence within 21 days of this decision.

[R.P Hettiarachchi]
JUDGE

At Suva
17th March, 2010