Bano v Rashid [2013] FJHC 499; HBC 218.2009 (1 October 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 218 of 2009

BETWEEN:

HUSSAN BANO of Lot 35, Stage II, 8 Miles, Narere, Nasinu, Businesswoman.
PLAINTIFF

AND:

MOHAMMED RASHID of Wainiyaku, Taveuni, Driver.
FIRST DEFENDANT

AND:

CREDIT CORPORATION (FIJI) LIMITED a body incorporated and registered under the Laws of Fiji and having its registered office at Credit House, 10 Gorrie Street, Suva, Fiji Islands.
SECOND DEFENDANT

BEFORE : Justice Deepthi Amaratunga

COUNSEL : Mr. V. Singh for the Plaintiff
Mr. E. Narayan for the Defendant

Date of Hearing : 6th March, 2013
Date of written ruling for circulation : 1st October, 2013

RULING

1. INTRODUCTION
   

1. The summons of the Plaintiff filed on 6th November, 2013 sought setting aside of the Default Judgment entered on 30th August, 2011 by the Chief Registrar. The Plaintiff failed to file a reply to the counter claim of the Defendant. After the hearing I have granted the orders sought by the summons considering the delay in this case, and the written ruling was prepared upon the request.
   

2. FACTS
   

2. The Plaintiff in the statement of claim pleads that she purchased a motor vehicle under a Bill of Sale with the 2nd Defendant for a sum of $6,111.51 She also states that she entered into an agreement with the First Defendant for the sale of the vehicle to the 1st Defendant for $8,373 on monthly payment of $250 by the 1st Defendant to the 2nd Defendant and the transfer was to be effected upon the full payment of the debt of the 2nd Defendant. The Plaintiff's claim is that 1st Defendant failed to pay any payment to 2nd Defendant. In the statement of defence the Defendant is alleging that vehicle was transferred to him as a part of consideration regarding a land transaction between the parties. The vehicle was seized by the 2nd Defendant in terms of the Bill of Sale, and later returned to the Plaintiff by court on certain conditions and the proceeding against the 2nd Defendant withdrawn upon the return of the vehicle to the Plaintiff.
   

100. ANALYSIS
     

3. The counter claim of the Defendant is based on the alleged consideration of $10,000 for which the vehicle was transferred to the Plaintiff. The said consideration according to the Defendant was part of consideration in a dealing of land between the Plaintiff and 1st Defendant's father. The amended defence and counterclaim was filed on 29th July, 2011, but no reply to the said counter claim was filed and the Defendant obtained default judgment on 30th August, 2011 for the counterclaim against the Plaintiff. The Plaintiff now seeks to set aside the said default judgment. An earlier attempt to set aside was made but due to non compliance of the rules the said application for setting aside was struck off and the Defendant was also awarded a cost of $350.
   
4. The present solicitors who filed notice of appointment on 10th September, 2012, and subsequent to this an application was made for setting aside of default judgment, which was based on the counterclaim of the Defendant was made. The Defendant objected to this application on the basis of earlier striking out of similar nature for want of compliance. The previous application for setting aside of the default judgment was struck off due non compliance of mandatory requirements under the High Court Rules of 1988 and merits of the application was not considered. Hence, the objection of the Defendant cannot hold water.
   
5. I have to consider this application afresh, and see whether the Plaintiff had fulfilled the requirements to set aside the default judgment based on the counterclaim of the Defendant. The counter claim is based on the facts which I have stated earlier in this ruling. The facts are disputed and upon the perusal of the Plaintiff's affidavit in support and also the proposed defence to counterclaim the ascertainment of the truth cannot be considered, but what I have to determine is whether there is strength in the defence to the counterclaim.
   
6. In Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc [1986] 2 Lloyd's Rep 221, it was held that in order to set aside the default judgment, the proposed defence advance "must carry some degree of conviction" and this principle was further advanced in judgment of Moore-Bick j in international Finance Corporation UtexafricaS.p.r.l (2001) CLC 1361 at p 1363 it was held
   

"A person who holds a regular judgment even a default judgment, has something of value, and in order to avoid injustice he should no be deprived of it without good reason. Something more than merely arguable case is needed to tip the balance of justice to set the judgment aside. In my view, therefore Mr. Howard is right in saying the expression "realistic prospect of success" in this context means a case which carries a real conviction."

7. The Defence to the counterclaim carries a degree of conviction that needs further investigation upon the production of the oral evidence to the court. The Plaintiff's version and Defendant's version of the events and facts needs further investigation at trial. On the strength of affidavit evidence, I can't decide correctness but I am more than certain that it is not a sham defence or a defence that is doomed to fail.
   
8. The circumstances on which the Plaintiff's earlier application for setting aside demonstrate the reason for delay in making this application and also explains why the Plaintiff was unable to file a reply promptly. The Plaintiff even needed to change the solicitors and the present solicitors had filed proper application in terms of the High Court Rules of 1988 as soon as they filed the change of solicitors for the Plaintiff. The Defendant will not be prejudiced by the setting aside of the Default judgment, and in any event the Plaintiff's action needs determination of the court and the issues contained in the counterclaim are mixed with the claim of the Plaintiff and the defense of the Defendant. In the circumstances the Defendant is not prejudiced by the setting aside of the Default judgment entered on 3rd September, 2012.
   

4. CONCLUSION
   

9. The Plaintiff has shown merits in its defence to the counterclaim that carry some degree of conviction and it cannot be considered as sham defence or defence doomed to fail. The default judgment entered on 3rd September, 2012 is set aside. The cost in this action will be cost in the cause.
   

5. FINAL ORDERS
   
   1. The default judgment is set aside.
   2. Cost of this application is cost in the cause.
   100. The matter to take normal cause.
        

Dated at Suva this 1st day of October, 2013.

Justice Deepthi Amaratunga
High Court, Suva