Padam Singh Construction v Maui Beach Villas Ltd [2014] FJHC 831; HBC115.2013 (14 May 2014)

IN THE HIGH COURT OF THE REPUBLIC OF FIJI
AT LAUTOKA
[CIVIL JURISDICTION]

Civil Action No. HBC 115 of 2013

BETWEEN:

PADAM SINGH CONSTRUCTION
a limited liability company having its registered office at Muasara, Sigatoka in the Republic of Fiji Islands.
PLAINTIFF

AND:

MAUI BEACH VILLAS LIMITED
a limited liability company having its registered officeat c/- Aliz Pacific Level 8, Dominion House, Thompson Street, Suva, P. O. Box 2475,Government Buildings, Suva in the Republic of Fiji Islands.
DEFENDANT

Before : Actg Master M H Mohamed Ajmeer

Counsels:
Mr J Singh for the Plaintiff
Mr M. B Patel for the Defendant

Date of Hearing : 14 May 2014
Date of Ruling : 14 May 2014

INTERLOCUTORY RULING

[1] This is an application by Maui Beach Villas Limited, defendant for setting aside the default judgment entered on 4 September 2013. The application is supported by an affidavit of Francis Colin Kumar. The application seeks the following orders:

1. That the Judgment entered herein on 4th September 2013 against the Defendant in default of filing the Defendant's Acknowledgment of Service and Defence unconditionally and as of right be set aside on the following grounds:
   

1. That the Default Judgment is irregular for want of compliance of service in that the Defendant was not served with the Writ of Summons and Statement of Claim filed in these proceedings and as otherwise contained in the Affidavit of FRANCIS COLIN KUMAR sworn and filed herein; and
   

2. That all and any further proceedings on the Judgment in Default entered on 4th September 2013 be stayed pending the hearing and determination of this Application; and
   

100. That all and any further proceedings on the Notice of Assessment of Damages dated 29th July 2013 be stayed pending the final hearing and determination of this Application.
     

4. That costs be awarded to the Defendant on an Indemnity basis.
   

[2] The application is made pursuant to Order 2 Rule 2 and Order 13 of the High Court rules 1988 and the Inherent Jurisdiction of the Court.

[3] Plaintiff filed affidavit in reply to oppose the defendant's application to set aside. The defendant then filed affidavit of Francis Colin Kumar in response to the plaintiff's affidavit in reply.

[4] The plaintiff brought proceedings by way of writ endorsed with statement of claim against the defendant seeking judgment, inter alia, in the sum of $83,355.00 being the payment arising out of a contract the plaintiffs had with the defendant, in the further sum of $83,635.00 as special damages. The plaintiff also claimed general and punitive damages for breach of contract.

[5] The writ of summons was allegedly served on 11 July 2013. An affidavit of service has been filed in proof thereof.

[6] The defendant did not file acknowledge of service and thereby failed to give notice of intention to defend. The defendant should have filed an acknowledgement of service within 14 days after the service of the writ counting the day of service.

[7] On 30 July 2013 the plaintiff filed notice of assessment of damages. This notice was served at the plaintiff's registered office on 10 September 2013 according to affidavit of service filed on 27 September 2013. That notice was returnable on 27 September 2013. On 27 September Mr Savau appeared on behalf of the defendant sought a mention date to fix the matter for hearing. Mr J Singh counsel for the plaintiff insisted hearing. In the meantime I indicated Mr Savau that he is appearing without filing any notice of appointment. He then withdrew his appearance and the matter proceeded to hearing.

[8] On behalf of the defendant Mr Patel submitted that affidavit of service is defective and denied service of the Writ of Summons on the defendant being a Company. He also argued that statement of claim is defective and judgment by default has been obtained irregularly.

[9] There was no proper response by the Plaintiff. He did not address all the issues raised by the defendant's counsel.

[10] On my part, I find the affidavit of service filed by the plaintiff is defective. In that the place and where service effected and the name of the person served had been interpolated in ink while rest of it is typewritten. It follows that the writ of summons was not properly served on the defendant.

[11] In the case of an irregular judgment, the defendant is entitled to have it set aside ex debito justiciae and the court should not impose any terms whatever upon the defendant, see para 403, Halbury's Laws of England Vol. 37 (4th Edn).

[12] I therefore unconditionally set aside the default judgment entered on 4 September 2013. The defendant is permitted to file and serve a statement of defence within 21 days and the plaintiff to file and serve a reply within 14 days thereafter, if need be. Costs shall be in the cause. I now adjourn the matter to 10/07/14 for mention only. Order accordingly.

...............................................
M H Mohamed Ajmeer
Actg Master of the High Court

At Lautoka

14/05/14