Mishra v PRA Contracting (Fiji) Company Ltd [2012] FJHC 1437; HBC185.2012 (6 November 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
Action No. HBC 185 of 2012

BETWEEN:

SUNIL PRASAD MISHRA
trading as Super Construction & Interiors.
DEFENDANT-APPELLANT

AND:

P.R.A CONTRACTING (FIJI) COMPANY LIMITED
a duly incorporated limited liability company having its registered office at Nadi.
PLAINTIFF-RESPONDENT

Before: Priyantha Nāwāna J.

Counsel: Appellant : Mr D Gordon
Respondent : Mr H Ram

Date of Hearing and Judgment : 06 November 2012

JUDGMENT

1. This is an appeal, with leave to appeal out of time, against the decision dated 24 July 2012 of the learned Magistrate, Nadi, refusing to set-aside the default judgment dated 02 August 2011.
   
2. The case record shows that the plaintiff-respondent (plaintiff) had instituted action against the defendant-appellant (defendant) seeking a sum of $ 26,580.48, being the amount due on the electrical goods supplied by it between 05 August 2007–19 November 2007 to the defendant. The plaintiff also claimed interest at the rate of 12.5% from 20 December 2007–20 April 2009 on the above amount.
   
3. The defendant, in terms of its statement of defence dated 07 July 2009, accepted that the plaintiff was carrying on business in the trade of electrical goods at the material time. The defendant denied that it had owed the amount claimed by the plaintiff but disclosed no material facts in its defence.
   
4. On 29 March 2011, after a series of adjournments to explore the possibility of settling the matter, the trial was fixed for 02 August 2011. It also appears that defendant had intended to change solicitor as borne-out by the record.
   
5. On 02 August 2011, defendant was absent and unrepresented. On an application by Mr Ram on behalf of the plaintiff, the statement of defence was struck-out and the case proceeded ex parte.
   
6. Evidence of Anulesh Mudaliar, Manager of the plaintiff-company, was led and documents marked Ex.1–Ex.5 were produced. Document marked Ex.5, being the final notice addressed to the defendant, showed seven invoices relating to the months of August, October and November 2007 making a total sum of $ 26,580.48, which was the sum claimed by the plaintiff in the action. The learned Magistrate, having accepted the plaintiff's evidence and the documents, entered judgment in the sum of $ 26,580.48 along with costs in a sum of $ 2,500.00 in favour of the plaintiff.
   
7. An application for the setting-aside of the default judgment was, thereafter, made on behalf of the defendant on 15 November 2011.
   
8. The learned Magistrate, after inquiring into the application to set-aside the default judgment, delivered his ruling on 24 July 2012 refusing the same. Notice of intention to appeal was filed on behalf of the defendant, which, too, was disallowed on 06 August 2012 by the learned Magistrate stating that it was out of time.
   
9. The defendant was, however, granted leave to appeal out of time against the ruling of the learned Magistrate dated 24 July 2012 by this court.
   
10. At the hearing, Mr D Gordon, learned counsel for the appellant, submitted that the learned Magistrate had applied a wrong test in that the learned Magistrate had relied on the requirement of establishing acceptable reasons for the default in appearance on 02 August 2011. Learned counsel submitted that learned Magistrate had further proceeded to consider the absence of the new counsel as at 02 August 2011 in dealing with the application to set- aside the default judgment. Moreover, Mr Gordon submitted that the applicable test for the learned Magistrate to consider was the existence of a meritorious defence in coming to a finding in regard to the setting-aside of the default-judgment.
    
11. Mr H. Ram, on behalf of the plaintiff, submitted that the learned Magistrate was satisfied with the evidence and the documents presented when he entered the ex-parte judgment in favour of the plaintiff. Mr Ram also drew the attention of court to the documents marked Ex.1–Ex.5 to establish the amount claimed by the plaintiff in the action. It was further submitted that the statement of defence had not placed any material factors to negate the claim of the plaintiff.
    
12. I have considered the submissions of both counsel along with the case precedents relied on by them in regard to the matter of setting-aside a default judgment. The law is clear; and, there was no dispute between the parties as to the test applicable in setting-aside a default judgment. The factors that need to be considered are the existence of a meritorious defence; and, also the reasons adduced for the default.
    
13. I have examined the ruling dated 24 July 2012 of the learned Magistrate and find that the learned Magistrate has given his mind to these two fundamental factors in terms of paragraphs 22–24 of the ruling. Insofar as the existence of a meritorious defence is concerned, this court forms the view that there was no meaningful defence filed on behalf of the defendant in terms of its statement of defence dated 07 July 2009. That statement of defence does not contain anything other than a mere denial. Such a statement of defence could not disclose any defence at all.
    
14. In the circumstances, I find no reasons to interfere with the ruling of the learned Magistrate dated 24 July 2012 in dismissing the application of the defendant to set-aside the default judgment dated 02 August 2011. I, accordingly, dismiss the appeal
    
15. Having considered all the facts and circumstances of this case, I award a sum of $ 600.00, as summarily assessed costs, payable by the defendant-appellant to the plaintiff-respondent.
    

Priyantha Nāwāna
Judge
High Court
Lautoka
06 November 2012