K Naidu Investment Proprietary Ltd v Khan [2014] FJHC 220; HBC273.2009 (31 March 2014)

In the High Court of Fiji at Suva
Civil Jurisdiction
Civil Action No. HBC 273 of 2009

Between:

K Naidu Investment ProprietaryLimited
Plaintiff

And:

Azam Khan of Auckland,New Zealand
as Executor in the estate of Salim Khan
Defendant

Appearances: Mr I. Samad for the plaintiff
Mr V Singh for the defendant
Date of hearing: 7th March,2013

JUDGMENT

1. This is a second application made by the defendant to set aside a default judgment .
   
2. I will at the outset set out the sequence of the matters that transpired in this case:
   
   1. On 25 August,2009,the plaintiff filed writ of summons against the defendant.
      
   2. On 5 October,2009,Parshotam & Co,solicitors filed acknowledgement of service stating that the defendant disputes the jurisdiction of this Court.
      
   100. On 11 November,2009,the plaintiff entered default judgment.
        
   4. On 29 January, 2010, the defendant filed inter partes summons to set aside the default judgment.
      
   5. On 5 February,2010,the summons was supported before Justice Wati.The plaintiff was unrepresented. Her Ladyship set aside the judgment, as being irregular, since the defendant was not in the jurisdiction and procedurally,the leave of the court to issue and serve writ was required.
      
   6. On 11 October, 2012, the High Court registry issued Or 25 r 9 notice to the solicitors for both parties to show cause why this matter should not be struck out for want of prosecution.
      
   7. On 5 November, 2012, the plaintiff filed ex parte notice of motion and affidavit seeking inter alia that the default judgment be restored, on the ground that the defendant failed to file his statement of defence within 14 days as ordered.
      
   8. On 16 November,2012,I granted the orders sought .
      
   9. On 19 November, 2012, the defendant filed summons together with an affidavit in support to set aside the ex parte orders.
      
   10. On 18 February,2013,the plaintiff filed affidavit in reply.
       
   11. On 7 February,2013, the plaintiff filed a writ of fieri facias .
       
   50. On 12 February, 2013, I stayed the execution of the default judgment, until the determination of this application to set aside the judgment.
       
3. The determination

3.1. At the hearing, Mr Samad,counsel for the plaintiff took issue with the failure of the defendant to file his defence for two and a half years, after filing acknowledgment of service. He rested his case on Or 10,r.1(4). This rule provides that where a defendant acknowledges service of writ, the writ shall be deemed to have been served on him.

3.2. Mr Singh, counsel for the defendant relied on Or 3,r. 5 and Or 8,r 2. He submitted that a statement of defence was not required to be filed, since the solicitors for the defendant had filed a conditional acknowledgement of service disputing jurisdiction. This court had not made an order for the statement of defence to be filed within 14 days, as contended by the plaintiff. He submitted further that the plaintiff has failed to satisfy court why an ex parte application was made on 5 November, 2012.

3.3. The question for determination before me is whether the default judgment entered by this Court on 16 November, 2012,can stand in light of (i) the order of Justice Wati of 5 February, 2010, and (ii) the plaintiff not taking steps for a period of 2 years,9 months.

3.4. Justice Wati held that the leave of court to issue and serve writ was required,since the defendant was not in the jurisdiction. This order was not complied with by the plaintiff. Instead, the plaintiff once again moved for default judgment, on the ground that order was made that statement of defence be filed within 14 days. I find that no such direction was given by court.

3.5. The next matter is non-compliance with Or 3,r 5.This provision requires that where "six months or more has elapsed since the last proceeding in a cause or matter, a party intending to proceed must give not less than one month's notice of that intention to every other party".

3.6. The last proceeding, as so far as relevant, was on 5 February, 2010. The matter was dormant for two years and nine months until 5 November, 2012. In the intervening period, the High Court registry on 11 October, 2012, issued a Or 25,r 9 notice to the solicitors for the parties to show cause for want of prosecution. On receipt of this notice, the plaintiff did not give notice of intention to proceed as directed, but quite inappropriately, filed an ex parte motion for default judgment on 5 November, 2012.

3.7. In my view, the plaintiff was required to give the defendant notice of intention to proceed in terms of Or 3,r 5, since more than six months had elapsed since the last proceeding.

3.8. I would refer to a passage from the judgment of Lindley LJ in Webster v Myer,[1884] UKLawRpKQB 221; (1884) 14 QBD 231 at 234 as cited by Nourse J in Sudeclub Co v Occasions Textiles, (1981) 3 All ER 671 at page 673:

The fact of more than a year having elapsed since the last proceedings, seems to shew that the plaintiff had intended to abandon the prosecution of the action, and it might be very unjust to allow him to sign a judgment without giving the defendant an opportunity of establishing to the satisfaction of the court that the plaintiff is not entitled to proceed further.

3.9. I would also agree with Mr Singh that there has been no compliance with Or 8,r 2. This requires that two days notice before the hearing of a motion must be given to any affected party, except where "irreparable or serious mischief" could result.

3.10. In my judgment, the ex parte orders entered on 16 November, 2012, must be set aside. It follows that the application for a writ of fieri facias must necessarily be declined. The plaintiff has to show cause under Or 25, r9, why this case should not be struck out for want of prosecution, as he was initially requested to.

4. Orders
   
   1. The ex parte orders entered by this court on 16 November, 2012,are set aside.
      
   2. The application for writ of fieri facias is declined.
      
   100. The plaintiff shall show cause under Or 25, r9 why this case should not be struck out for want of prosecution.
        
   4. The defendant is entitled to costs summarily assessed in a sum of $ 2000 payable by the plaintiff within 21 days.
      

31 March, 2014

A.L.B.Brito-Mutunayagam
Judge