Campbell v Challenge Engineering Ltd [2011] FJHC 100; HBC56.2010 (1 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 56 of 2010

BETWEEN:

PAULINE CAMPBELL trading as Style Gallery Fiji of 2nd Floor Velop House, Victoria Parade, Suva, Fiji.
PLAINTIFF

AND:

CHALLENGE ENGINEERING LIMITED a limited liability company having its registered office at 27 Saumatua Street, Lautoka, Fiji.
1ST DEFENDANT

AND:

SURESH PATEL (f/n Thakorbhai Patel) of 27 Saumatua Street, Lautoka, Fiji, Businessman.
2ND DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSELS: SHEKINAH LAW for the Plaintiff
NATASHA KHAN ASSOCIATES for the Defendant

Date of Hearing: 1st November, 2010
Date of Ruling: 1st February, 2011

RULING

1. INTRODUCTION
   

1. Defendant has applied to set aside the default judgment and for striking out of the Statement of Claim.
   

2. FACTS
   

2. Plaintiff filed the writ of summons on 4th March, 2010 and it was issued on the same day. The Statement of Claim was filed on 6th May, 2010 and leave was granted to file the statement of claim out of time on 25th June, 2010.
   
3. On 14th April, 2010 acknowledgement of service of writ of summons was filed by the Defendants.
   
4. On 12th July, 2010 the search for the notice of intention to defend or statement of defence was filed and on the same day judgment by default was filed and issued on16th July, 2010.
   
5. Notice of assessment of damages and interest was filed by the Plaintiff on the 18th August, 2010.
   
6. On 30th of August, 2010 the Defendants filed the summons for the setting aside the default judgment and for striking out of the Plaintiff's claim.
   

100. SETTING ASIDE OF THE DEFAULT JUDGMENT
     

7. The Defendants have filed their acknowledgment of writ of summons but have not filed a statement of Defence with in the stipulated time and judgment in default was entered.
   
8. The judgment in default was entered on 16th July, 2010 and the notice of assessment of damages was filed on 18th August, 2010 and only on 30th August, 2010 that an application to set aside the judgment was filed. I do not have an affidavit of service of the default judgment filed in this case, hence not in a position to state whether there was a delay in making this application as alleged by the Plaintiff. Plaintiff state that the Defendants' application to set aside was made only after their application for the assessment of damages was filed. In any event the Defendants have come before this court with in 45 days of the entering of default judgment. This cannot be considered an inordinate delay.
   
9. The Defendants state that the default judgment is irregular since it state "No notice of intention to defend or statement of defence having been filed and served by......" It is admitted fact that Defendants have filed their intention to defend on 14th April, 2010. At the oral hearing the counsel for the Plaintiff's counsel tried to give anther interpretation to that statement. Plaintiff's argument is that since the preposition 'or' is used in the sentence, absence of either of the two is meant by the statement. I cannot agree with that interpretation and the plain reading of the statement is clear that it denotes that Defendant has not filed notice of intention as well as statement of defence. This is obviously not correct. This has happened as the notice of intention was filed as far back as 14th April, 2010 when the writ of summons filed and the statement of claim was filed only on 6th May, 2010. Obviously there is an error on the default judgment and this cannot stand.
   
10. In the circumstances the Default judgment should be set aside unconditionally, since there is an error on the default judgment.
    
11. Plaintiff's counsel state that in terms of the provisions in order 2 rule 2 if any proceedings is to be set aside on the grounds of an irregularity the grounds for objection must be stated in the summons. The summons state that the Default judgment entered be set aside unconditionally and also in the supporting affidavit in paragraph 11 of the supporting affidavit filed on behalf of the Defendant specifically state that the 'Default judgment is irregular and cannot stand'. In the light of the summons which seeks an unconditional setting aside of the Default Judgment and the paragraph 11 of the supporting affidavit the Plaintiff had adequate notice of the objection of irregularity of the default judgment and no prejudice caused to the Plaintiff by specifically not including in the summons or in the motion. It is to be noted that here an affidavit is filed along with the summons and reading both together will not prejudice the Plaintiff and it is clear that the Defendant is challenging the irregularity in the Default judgment. It is also noteworthy that in terms of the Order 2 rule 2 (2) there is no requirement of affidavit to be filed and in that event it is paramount that the grounds of objection is stated in the summons or in the notice of motion as it would prevent any surprise to the other party.
    
12. For the above mentioned reasons the default judgment entered on 16th July,2010 is set aside unconditionally as there is an error on the face of the judgment.
    

4. STRIKE OUT APPLICATION
   

13. The Jurisdiction to strike-out an application is governed by Order 18 rule 18(1) of the High Court Rules. It states as follows:
    

18(1) The curt may at any stage of the proceedings order to be stuck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that:

(a) it discloses no reasonable cause of action or action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial or the action; or

(d) I t is otherwise an abuse of the process of the court;

14. And may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

15. In Napolioni Kurucake Ratumaiyale –v- NLTB and Pacific Octopus Ltd (200) 1FLR 284 at 285 held that "it is clear from the authorities that the Court's jurisdiction to strike out on the grounds of no reasonable cause of action is to be used sparingly and only where a cause of action is obviously unsustainable. It was not enough to argue that a case is weak and unlikely to succeed, it must be shown that no cause of action exists"(emphasis is added)
    
16. The Plaintiff's cause of actions are breach of the Tenancy Agreement, Unlawful Distress of Rent and Defamation. It is clear that defamation cannot be decided unless oral evidence is led. On that ground alone this strike out application cannot succeed. This was also held in the case of Timber Resources Management Limited –v- Minister for Information and others (2001) HBC 0212/00.
    
17. Accordingly, the strike out application of the Defendant is struck out with a cost of $ 1,250 assessed summarily. The cost to be paid by the Defendants jointly or severally with in 21 days from today.
    

5. CONCLUSION
   

18. Default judgment entered on 16th July, 2010 is set aside unconditionally and the Defendants are granted 14 days to file and serve their statement of defence and 7 days from the service Plaintiff are at liberty to file and serve a reply to the statement of defence.
    
19. The Defendants' application to strike out the statement of claim is struck out and Defendants to pay a cost of $1,250 to the Plaintiff within 21 days.
    

Dated at Suva this 1st day of February, 2011

Mr. Deepthi Amaratunga
Acting Master of the High Court

Suva