Rewa Provincial Holding Co Ltd v Cookes United Refrigeration and Airconditioning Ltd [2012] FJHC 1332; HBC284.2011 (13 September 2012)

IN THE HIGH COURT OF FIJI

AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 284 of 2011

BETWEEN:

REWA PROVINCIAL HOLDING COMPANY LIMITED
a limited liability company having its registered office at 370 Victoria Parade, Suva in Fiji
PLAINTIFF

AND :

COOKES UNITED REFRIGERATION AND AIRCONDITIONING LIMITED
a limited liability company having its registered office at NATCO Building, Edinburgh Drive, Suva in Fiji
DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : Mr. P. Sharma for the Plaintiff
No Appearance for the Applicant –Defendant at Hearing

Date of Hearing : 13th August, 2012
Date of Ruling : 13th September, 2012

RULING

1. INTRODUCTION
   

1. This is an application by the Defendant to Set Aside the Judgment by Default entered on 7th October 2011, counsel for the Applicant Defendant filed the proposed statement of defence but did not appear for the hearing. The default judgment was entered regularly and there is no allegation of that being irregular. There is no defence on merit either in the affidavit in support or in the proposed statement of defence.
   

2. FACTS
   

2. On 07th October 2011, the Plaintiff obtained Judgment by Default against the Defendant. The Judgment by Default was served on the Defendant's then Counsel, Naiwaikula Esquire on 11th October 2011.On 31st October 2011, the Defendant's present Counsel on record, Vakaloloma & Associates filed the following documents:
   

(a). Inter Parte - Notice of Motion; and

(b). Affidavit of Joseph Wise in Support of Inter Parte - Notice of Motion.

3. At the hearing on 18th January 2012, this Court made the following directions:
   

(a). The Defendant to file a Supplementary Affidavit in Reply annexing the Proposed Statement of Defence within 14 days;

(b). The Plaintiff to file its Affidavit in Reply within 14 days thereafter; and

(c). The matter listed for hearing on Tuesday 13th March 2012at 2:00pm.

4. The Defendant did not file its Supplementary Affidavit in Reply annexing the Proposed Statement of Defence by 31st January 2012.On 14th February 2012, the Defendant then filed the Affidavit of Niko Bulai in Reply to the Affidavit of Joseph Wise and the Supplementary Affidavit of Elena Ratukalou. This Affidavit of Mr. Bulai was sworn on 13th February, 2012.
   
5. On 15th June 2012, the Defendant filed the Supplementary Affidavit in Support of Joseph Wise; and annexed a copy of the Proposed Statement of Defence. On 27th June 2012, the Plaintiff filed the Affidavit of Niko Bulai in Reply to the Supplementary Affidavit of Joseph Wise.
   

100. ANALYSIS
     

6. In Fiji National Provident Fund v Shri Datt (1988) 34 FLR 67, Justice Fatiaki held that in setting aside of the default judgment following tests has to be applied:
   
   1. Whether the defendant has a substantial ground of defence to the claim
      
   2. Whether the defendant has satisfactory explanation for his failure to enter an appearance to the writ
      
   100. Whether the plaintiff will suffer irreparable harm if the judgment is set aside.
        

Whether the Defendant has substantial ground of Defence to the Plaintiff's Claims?

7. The Defendant annexed its Proposed Statement of Defence as annexure JW1 of the Supplementary Affidavit of Joseph Wise sworn and filed on 15th June 2012 and the only paragraph that dealt with the meritorious defence is contained in paragraph 4 and state as follows
   

'4.Further the Defendants reiterates that the Defendant has a meritorious defence and it did not breach its initial contract as it has performed and fulfill the agreement before the Plaintiff terminated the contract, therefore the statement of claim filed in this case ought to be summary dismissed in view of the foregoing..'

This paragraph does not deal with the detailed averments dealing with the breach of the contract between the parties. If default judgment were to be set aside on such unmeritorious defence, it is a futile effort as the Plaintiff would seek summary judgment and it would succeed under the circumstances since the defence is doomed to fail.

8. This is the only paragraph that dealt with a defence which comprised 4 paragraphs and paragraphs 1, 2 and 3 are all bare denials of the paragraphs in the statement of claim and do not address any of the issues raised in the statement of claim. The Defendant's Proposed Statement of Defence can be analysed as follows:
   
   • (a) At paragraph 2 of the Draft Proposed Statement of Defence the Defendant is unable to confirm or deny the paragraphs 3 to 6 of the Plaintiff's Statement of Claim which relates to the Defendant's Tender and particulars. This is a delaying tactic and should not be allowed to abuse the process through delay, when the Defendant is estopped from denying it conveniently avoid answering the pertinent issue and would defeat the purpose of the pleading. In any event since there is no denial or explanation as to why it cannot answer the tender particulars, which it had accepted it is evident that the Defendant is buying time and evading the issue and this application for setting aside is also abused to buy time.
     
   • (b) At paragraph 3 of the Draft Proposed Statement of Defence the Defendant denies paragraphs 7 to 17 of the Plaintiff's Statement of Claim; however, the Defendant does not give reasons for its denials and this is a bare denial, considering the fact that Defendant had even failed to admit the obvious facts, this denial also has to be considered in the light of the circumstances of the matter.
     
   • (c) At paragraph 4 of the Draft Proposed Statement of Defence the Defendant states that it did not breach the contract; however it failed to specifically respond to paragraphs 7 to 9 of the Plaintiff's Statement of Claim which outline the Defendant's breach of the Tender. Specifically, the Defendant fails to say how it did not breach the Tender. Nor does the Defendant state when it completed the project. Paragraphs 7 to 9 of the Statement of Claim stated:
     

"7. The Defendant then breached the Tender.

Particulars of Breach

8. The Particulars of the Defendant's Breach are as

follows:

1. The Defendant did not complete the 3rd phase of the project; and
   
2. The Defendant failed to commence the 4th phase of the project even though it was paid $17,280 for it by the Plaintiff.
   

9. Upon an inspection of the project by engineers Irwin Aslop, the following defects were discovered; and the following parts [which were in the care, custody and responsibility of the Defendant] were also missing from the Plaintiff's premises:
   

1. Three compressors from the chiller (the chiller had seven compressors) worth $31,825.50;
   
2. The electronic control circuit had been bypassed; and not all the safety controls were connected;
   

100. Four wrong sized condenser fans had been installed. It cost the Plaintiff $8,687.25 to replace the fans with the proper sized fans;
     

4. Five indoor coil unit fans were missing; and two wrong sized fans had been installed. It cost the Plaintiff $11,866.75 to replace the fans with new ones;
   
5. One chilled water pump and motor were missing. It cost the Plaintiff $10,508.00 for the new pump and motor.
   
6. One chilled water flow switch was missing. It cost the Plaintiff $277.36 for the switch.
   
7. The 24 hour time clock was missing. It cost the Plaintiff $387.25 for the clock."
   

The Defendant failed to specifically respond to paragraph 10 of the Plaintiff's Statement of Claim which outlines the costs for the missing parts as it is a vital and substantial part of the statement of claim, the Defendant cannot evade such an important issue by a bare denial. Paragraph 10 of the Statement of Claim stated:

"10. In total it cost the Plaintiff $63,552.11 for the missing parts."

The Defendant failed to specifically respond to paragraph 11 of the Plaintiff's Statement of Claim which states the Plaintiff terminated the Defendant's services as a result of the Defendant's breaches. Paragraph 11 of the Statement of Claim stated:

"11. As a result of the Defendant's breaches, by letter dated 12th March 2010, the Plaintiff terminated its services in relation to the project.

The Defendant failed to specifically respond to paragraph 12 of the Plaintiff's Statement of Claim which states that the Plaintiff hired the services of Air Pro to repair the damage caused by the Defendant and to complete the project.

9. The Defendant's bare denial of the Plaintiff's Statement of Claim cannot amount to a substantial ground of defence and even if there was no default judgment the Plaintiff upon such a statement of defence, the Plaintiff would have sought summary judgment since there is no defence or it is evident that the defence will be doomed to fail and or unmeritorious, under the circumstances.
   
10. Fiji National Provident Fund v Shri Datt (1988) 34 FLR 67, Justice Fatiaki in setting aside of the default judgment analyzed the affidavit evidence before the court in arriving at a conclusion as to whether the proposed defence was meritorious and held that it was not so. I do not have sufficient materials on defence to consider the merits of the defence and it is only a bare denial, this can be considered an evasion of the material facts. The Defendant was granted more than one opportunity to satisfy the requirements and it did not do so and finally it did not even participated at the hearing.
    

4. CONCLUSION
   

11. There are no merits in the affidavit in support as well as the proposed defence and the proposed defence is only a bare denial and it is deemed to fail. The default judgment is regular and therefore setting aside the paramount consideration is to show the defence on merit, which the Defendant had failed. The application for setting aside of the default judgment is struck off and the Plaintiff is granted a cost of $1,500 assessed summarily.
    

5. FINAL ORDERS
   

1. The application for setting aside of the default judgment is struck off.
2. The Defendant is ordered to pay a cost of $1,500, as the cost of this application to the Plaintiff.
   

Dated at Suva this 13th day of September, 2012.

.................................................
Master Deepthi Amaratunga
High Court, Suva