IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 29 of 2012

BETWEEN :

VANUALEVU HARDWARE (FIJI) LIMITED
a limited liability company having its registered office at 15 Jaduram Street, Labasa.
APPELLANT/PLAINTIFF

AND :

LABASA TOWN COUNCIL 
a town council duly established under the Local Government Act.
RESPONDENT/DEFENDANT

BEFORE : His Lordship Hon. Justice Kamal Kumar
COUNSEL : Mr. F. Haniff for the Appellant/Plaintiff
Mr. S. Sharma for the Respondent/Defendant

Date of Ruling : 10 February 2016

JUDGMENT

1.0	Introduction

1.1	Pursuant to leave granted on 9 September 2014, by his Lordship Justice Brito-Mutunayagam, Appellant (Plaintiff) on 29 September 2014, filed and served Notice of Appeal and Grounds of Appeal against Master's Ruling delivered on 20 September 2013.

1.2	On 31 January 2015, Messrs. Hanif Tuitoga filed Notice of Change of Solicitors on behalf of the Appellant.

1.3	On 5 February 2015, Appeal was called before the Master when Counsel for the Appellant sought further time to take instructions and the Appeal was adjourned to 13 March 2015.

1.4	On 13 March 2015, the Appeal was adjourned to 6 July 2015 for oral hearing.

1.5	On 6 July 2015, Appellant's Counsel handed in submission and both counsel made oral submissions.

2.0	Chronology of Events

2.1	For convenience sake I will reproduce the chronology of events upto delivery of Master's Ruling from the Ruling delivered in respect to the leave application.

"By writ of summons filed against the defendant on 17th May 2012, the plaintiff claimed specific performance of a contract and damages for breach of contract.

The defendant failed to serve its defence within the stipulated period of 14 days.

On 27th November 2012, default judgment was set aside by consent on the conditions that the defendant file its statement of defence on or before 8th February 2013 and costs of $300.00 be paid prior to the filing of the defence.

On 21st March 2013, the plaintiff filed summons for assessment of damages.

On 10th April 2013, the Master noted that "No defence filed as per order of 27/11/12. There also being no costs paid the default judgment remains" (emphasis mine)

On 17th April 2013, the defendant made an application under O.19, 3.9 to vacate the order granted on 10th April 2013 and to comply with the orders of 25th January 2013. The defendant attached a statement of defence to his supporting affidavit.

On 6th May 2013 when the matter was taken up, the defendant was neither represented nor present. The application was declined. The statement of defence was struck out by the Master.

On 6th June 2013, there followed a second application by the defendant to set aside the Master's Orders of 10th April 2013 and 6th May 2013, and to grant leave to comply with the Orders given on the 25th January 2013.

The Master in his Ruling dated 20th September 2013, held that the defendant should be given an opportunity to defend this matter on merit. He made the following Orders:-

1.	That the Defendant is given 14 days from today's date to file a defence;

2.	That the defendant to pay the cost of this application which I assess summarily as $500.00 also payable within 14 days from today's date;

3.	That the above costs does not include the amount of costs already granted against the Defendant which amounts to $800.00; and

4.	UNLESS the Defendant files its defence within the stipulated 14 days and pays ALL the costs under paragraphs (3) and (4) within that period of 14 days the default judgment first obtained against the Defendant stands.

5.	The matter is further adjourned before me for directions on the Monday 7 October 2013."

2.2	On 26 September 2013, Defendant filed Statement of Defence.

2.3	On same day Appellant filed Application for Leave to Appeal Master's decision.

2.4	On 4 October 2015, the Application was adjourned to 25 October 2013 to fix hearing date.

2.5	On 25 October 2013, the Application was adjourned to 15 November 2013, for hearing.

2.6	On 15 November 2015, his Lordship Justice Brito-Mutunayagam directed parties to file Submission and adjourned the Application before Master to fix hearing date.

2.7	Since then the Application was called on thirteen occasions before the Master and on 11 April 2013, was adjourned to 13 May 2014, before a Judge for hearing.

2.8	The Application was heard on 13 May 2014, by his Lordship Justice Brito-Mutunayagam and adjourned for judgment on notice which Judgment was delivered on 9 September 2014.

3.0	Grounds of Appeal

3.1	Grounds of Appeal as stated in the Notice of Appeal and Grounds of Appeal filed on 29 September 2014 are as follows:-

"1.	The Learned Master erred in law and in fact in allowing 14 days to the Defendant to file a defence when by its act and omissions it has defaulted on numerous times as follows:-

a.	By failing to file its Statement of Defence within time stipulated by the Court Rules, i.e. within 14 days after the filing of Acknowledgement of Service, which was ordered as a consequence of the Respondent's application to set-aside judgment in default entered against the Respondent by the Appellant.

b.	By failing to comply with Master's Orders of 10th April 2013 which were conditions to be met by the Respondent before the Default Judgment is set-aside. The Respondent failed to pay $300.00 costs and also did not file its Statement of Defence on or before 8th February 2013.

c.	By failing to attend Court on 6th May 2013 to move its Motion to vacate the Court orders of 10th April 2013 which resulted in the same Motion being struck-out by Order of the Court of 6th May 2013.

2.	The Learned Master erred in law and in fact in holding that the Court is not functus and has a wide discretion to make further orders in this matter, an opinion which is inconsistent with the principles of 'unless orders' or case management.

3.	The Learned Master erred in law and fact in stretching the principles held in Samat v. Qelelai HBC 201 of 2002L applied and adopted in Westmall Limited v. Cul (Fiji) Limited HBC 175 of 2001L so that the facts of this matter are consistent with the principles enunciated therein. Westmall relies on a different set of facts and circumstances of error or mistake. The Respondent's default conduct in this matter is more than an error or mistake. 

4.	The Learned Master erred in law and in fact holding that it has the jurisdiction to determine the Respondent's third application filed on 6th June 2013.

5.	The Learned Master erred in law and in fact not considering the fact the Respondent had lodged its Statement of Defence out of time for filing which in turn was accepted by the Court registry against the Respondent's application as a show of desperation and direct contempt.

6.	The Learned Master erred in law and in fact in holding that the failure by the Appellant to serve the Summons for Assessment of Damages upon the respondent was an issue that needed to be considered in deciding the Respondent's application. In any event, when the Summons for Assessment of Damages was called on 11th June 2013 for hearing before the Master, counsel for the Respondent was present to move the Motion it filed on 6th June 2013 - a fact that waived service due to presence of counsel.

7.	The Learned Master further erred in law and in fact in failing to consider that the hearing of the assessment of damages application by the Appellant did not proceed as expected due to the application by the Respondent and there was no need to serve on a Defendant who continuously defaulted from filing its Defence so forth showing disinterest in the matter."

3.2	This Court needs to determine the following:-

1.	Whether the Learned Master was functus when he extended the time for filing of Statement of Defence by the Respondent.
2.	Whether Learned Master took into account irrelevant factors and failed to take into account relevant factors in exercise of his discretion.

3.	Whether Learned Master stretched principles in Samat v. Qelelai HBC 175 of 2002L applied and adopted in Westmall Limited v. CUL (Fiji) Ltd.

4.	Whether there is a need to serve Application of Assessment of Damages when Defendant is in continuous default in filing Statement of Defence.

Whether the Learned Master was functus when he extended the time for filing of Statement of Defence by the Respondent.

3.3	The relevant Orders made on 25 January 2013 and 10 April 2013 are as follows:

25 January 2013

"(i)	Default Judgment entered on 27 November 2012 be set-aside;
(ii)	Defendant do pay costs of $300.00 to Plaintiff before filing of Defence;
(iii)	Defendant to file Statement of Defence within fourteen (14) days failing which Default Judgment to stand." ("25th January Order") 10 April 2013:
"1.	That the Default Judgment dated 27th November 2012 duly filed in Court on the 28th day of November 2012, that was set aside by consent but subject to certain orders by this Honourable Court on 25th January 2013 is reinstated."

It must be noted the Order on 10 April 2013, was made on the returnable date of the Summons for Assessment of Decision and there was no appearance on behalf of the Defendant (Respondent).

3.4	It is prudent to first deal with the Orders made by the Learned Master on 10 April 2013 which is reproduced at preceding paragraph (hereinafter referred to as "10 April Order").

3.5	10 April Order was made on returnable date of Summons for Assessment of Damages which Summons I understand was not served on the Respondent (Defendant).

3.6	Therefore 10 April Order was made in the absence of Respondent (Defendant) or it's Counsel.

3.7	It is well settled that where any Order made in the absence of any party, the absent party can apply to set aside the Orders made to the Judicial Officer who made that Order.

3.8	Since the 10 April Order was made in absence of the Respondent (Defendant) who was not served with the Summons for Assessment of Damages this order was rightly set aside by the Learned Master.

3.9	The Appellant relied on following cases in Support of its Submissions:-

Singh v. Lata [2015] FJHC; HBC 162.2004 (8 June 2015)
Chandra v. Chand & Ors. unreported High Court Action No. 157 of 2012 (5 August 2013)
Vuti v. iTaukei Land Trust Board - Extempore Ruling Unreported High Court Action No. 18 of 2012 (30 April 2012) 
Hytech Information Systems Ltd. v. The Council of the City of Coventry [1996] EWCA Civ. 1099 (4 December 1996)

3.10	The facts in Singh v. Lata are as follows:

The action was struck out on 1 May 2008 because of Order made on 2 April 2008 on following terms:-

"Unless the Plaintiff proceeds with action by 30/4/2008 it is struck out. Adjourned to 1/5/2008"

Plaintiff filed application to re-instate the action. 

On 9 December 2011, action was formally proved without Court being aware that the action was struck out and there was pending application to re-instate action.

On 1st June 2012, formal proof decision was delivered.

On 19 October 2012, the Court declared formal proof Order null and void and set it aside on the grounds that action was struck out on 1 May 2008.

The Court dealt with Plaintiff's application to re-instate the action.

The Court dismissed Plaintiff's application on the ground that Plaintiff had misled the Court when formal proof Order was made and the Court was functus officio.

3.11	In Chandra v. Chand & Ors. the Court pronounced Order in terms of Terms of Settlement and one of the order was for transfer of Crown Lease. When draft Order was placed before the Court, his Lordship Justice Tuilevuka who was then sitting as Master did not endorse draft Order because of lack of Director of Lands consent as required by s13 of Crown Lands Act when consent order was pronounced. Consent Order was not issued. 
The Court stated as follows:-

"2.	I have decided to withhold my endorsement yet. And I will now recall my verbal consent judgment. The reason I do this is because the proposed settlement involves inter alia a transfer of a piece of Crown Lease to which the Director of Lands' consent has not been sought, let alone obtained. Without that consent, this court is ill-disposed to sanction the settlement given that section 13 of the Crown/State Lands Act forbids any dealing in land without the consent of the Director of Lands first had and obtained.

3.	True, once a judgment is perfected, the court is functus officio and cannot revisit it, let alone, set it aside. But this court is not yet functus because the Order is yet to be perfected. At common law, a court may recall and rehear or review a case until the judgment is drawn up, passed and entered. This principle rests on the notion that a court is not functus officio while there remains any judicial function yet to be performed in relation to the proceeding (see FAI General Insurance Co. Limited v. Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 per Gaudron J at p289). The sealing or the perfecting of an Order is considered to be included amongst such a judicial function. Hence, if an Order remains to be sealed or perfected, it may be recalled and set aside (for an example of the Court recalling an order before it is perfected…."

3.12	In Vuti v. iTaukei Land Trust Board the Court struck out Defendant's Statement of Defence for repeated failure to discover its document to Plaintiff as required by Order 24 Rule 16(1)(b) of High Court Rules.

3.13	It is noted that none of the above cases deal with the issues as to whether the judicial officer who made an unless order can extend the time to comply with unless order after time for compliance has expired and the pleading has been struck out because of the unless order.

3.14	Facts in Hytech Information case which forms part of Appellant's Submission are bit similar to facts of this case.

In Hytech Information case Defendant was ordered to provide particulars of Amended Statement of Defence and Counter-claim.

Order to provide particulars was made on 13 March 1994 and as ordered particulars were to be provided by 1 April 1994 and thereafter the time was extended to 6 May and 2 December 1994. On 13 January 1995 Court made Order that unless particulars are served by 20 January 1995 Defence and Counter- claim was to be struck out.

Particulars served by Defendant were inadequate and at the hearing of Plaintiffs Summons to Strike Out Defence and Counter-claim for non-compliance Court struck out Defence and Counter claim.

It is to be noted at the hearing of Plaintiffs Summons, the Solicitor who was appearing for the Defendant, did not appear and Defendant was represented by six month pupil and Legal Executive of Defendant. Counsel for the Defendant applied for adjournment which was refused and Plaintiff's Summons was heard when Defendant's Counsel did not make any submissions but just sat and observed the proceedings. The Defendant engaged new Solicitors who moved the Court to re-instate Defence and Counter-claim and the Application was dismissed by Justice Harvey on the ground that at the hearing of Plaintiff's Summons to Strike Out Defendant's Defence and Counter-claim, Defendant's Counsel who was present in Court did not make any submissions.

Defendant appealed to Court of Appeal.

The Court of Appeal stated as follows:-

"In his judgment on 28 July 1995, the judge considered, first, whether he had the jurisdiction to entertain the application for an extension of time for compliance with an unless order even after the action had been dismissed. He concluded that he would have the jurisdiction, at any rate where the judgment in default had not been made after a hearing on the merits. Looking at that question he concluded that the hearing was a hearing on the merits and, therefore, there was no jurisdiction to rehear the matter. Had he held that there was such jurisdiction, he would have again dismissed the application because he was satisfied that the solicitor was seriously negligent over a long time, that counsel was not only seriously negligent but intended to flout the court's order and that the Council were responsible for the activity of their lawyers." (emphasis added).

3.15	It is apparent from above statement that Justice Harvey held that he would have jurisdiction to deal with Summons to re-instate Defence and Counter-claim for non-compliance with unless Order if the Summons was not decided on merits.

3.16	Justice Harvey dismissed the Application to re-instate Defence and Counter-claim on the ground the he had no jurisdiction to deal with the said Application simply because the Summons to strike out Defence and Counter-claim was heard on merits. This was so even though Defendant's Counsel sat throughout the hearing of the Summons without making any submissions.

3.17	Justice Harvey's decision was upheld by Court of Appeal.

3.18	It is clear that if Defendant did not appear at the hearing of Plaintiff's Application to Strike out Defence and Counter-claim then Justice Harvey would have heard Defendant's Application to re-instate Defence and Counter-claim.

3.19	Respondent's Counsel relied on the following cases:-

(i)	Whistler v. Hancock [1873] 3 Q B 83
(ii)	Samuels v. Linzi Dresses Limited [1981] QB 115
(iii)	Skinner v. Commonwealth of Australia [2012] FCA 1194 (31 October 2012)

3.20	Whistler's case contradicts Respondent's own submission.

3.21	In Whistler Master of the Court on 22 December made an Order dismissing action for want of prosecution unless Statement of Claim was delivered within a week. On 31 December Plaintiff filed application to extend time to deliver Statement of Claim. On 1st January, Master extended the time by giving another week. Defendant appealed and his Lordship Justice Fry set aside Master's Order extending time on the ground that Master had no jurisdiction to make the Order. The Court of Appeal upheld his Lordship Justice Fry's Order that Master had no jurisdiction to extend Order to deliver Statement of Claim after the seven day period had expired.

3.22	The principle in Whistler was overruled in Samuels v. Linzi (Supra) where the Court of Appeal after analyzing the authorities dealing with unless orders stated as follows:-

"In my judgment, therefore, the law today is that a court has power to extend the time where an "unless" order has been made but not been complied with; but that it is a power which should be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored. Primarily, it is a question for the discretion of the master or the judge in chambers whether the necessary relief should be granted or not." (page 125 para H; page 126 para A)

3.23	In Samuels case the Defendant filed Further and Better Particulars three days after the date fixed for filing of further and better particulars.

3.24	In Skinner v. Commonwealth of Australia an Order was made for filing of Further Amended Statement of Claim and Further Amended Application by 5 September 2012 failing which proceeding was to be dismissed. Plaintiff failed to file the documents by 5 September 2012 but was ready to file on 6 September 2012.

The Federal Court of Australia exercised its powers granted under Rule 1.39 of Federal Court Rules to extend time fixed by the rules or by court, whether or not, application to extend time is made after the time fixed has expired.

The Court held that it has jurisdiction/powers to extend time fixed by the rule and the Court even if application is made after time has expired.

3.25	The Federal Court in Skinner stated as follows:-

"10.	The discretionary power conferred by the rule is a power to be exercised to relieve against injustice. Thus, when considering a comparable provision in the Supreme Court Rules 1970 (NSW), Wilson J in FAI General Insurance Company Limited v. Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 at 283-284 observed: The plain meaning of these words is very wide. The court may extend "any time" fixed by "any …. order" and may do so as well after as before the time expires and even though the application to extend is not made until after the time has expired. As Baggallay LJ said in Carter v. Stubbs [(1880) 6 QBD 116 at 120] of the analogous English rule, it gives "very full discretionary power; indeed, I can hardly imagine a more extended discretion". It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centered in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance. 

An argument was there rejected that the power did not extend to "revive an action which stands dismissed". Brennan, Deane and Dawson JJ agreed with Wilson J. (1988) 165 CLR at 286."

3.26	The Court further went on to state as follows:-

"In the absence of any express constraints imposed upon the manner in which the discretion conferred by r1.39 is to be exercised, it would be unwise and inappropriate to attempt any exhaustive identification of considerations relevant to the exercise of that power. The power is to be exercised by reference to the facts and circumstances of each individual case. Subject to that necessary qualification, and without in any manner seeking to set forth an exhaustive list of considerations, some of the considerations relevant to the exercise of the power may include the following:

•	 ……. to ensure that a proceeding is resolved "according to law" and as "quickly, inexpensively and efficiently as possible";

•	 the nature of the rule or order which has not been complied with - non-compliance with a rule or order fixing the time for the filing of a defence may attract different considerations from (for example) a "self-executing" order that a proceeding be dismissed;

•	if the rule or order is directed to the doing of an act within a specified period of time - the duration of the extension of time which is sought; 

•	the history of the proceeding, including the making of previous orders and whether or not there has been compliance with those orders;

•	the reasons for non-compliance with the rule or order;

•	in the event of non-compliance with an order or direction - whether the order or direction had been made with the consent of the party in default;

•	the respective merits of the claim or defence;

•	whether the "indulgence" which is sought is sought in respect to non-compliance with a "rule" of Court as opposed to an "order" of the Court - it may perhaps be the case that there is a difference between a "rule" universally applicable to all proceedings and an "order" of the Court which may be more directed to the particular circumstances of a particular proceeding and the competing rights of the parties to that proceeding;

•	the prejudice that may be suffered by the party seeking the extension of time; and

•	the prejudice that may be suffered by an opposing party and whether any prejudice may be adequately addressed by (for example) an order for costs."

3.27	Order 3 Rule 4 of High Court Rules which is almost similar to Rule 1.39 of Federal Court Rules provide:-

"4(1)	The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these rules, or by any judgment, order or direction, to do any act in any proceedings.

(2)	The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.

(3) 	The period within which a person is required by these Rules, or by any order or direction to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose.

Provided that wherever the period for filing any pleading or other document required to be filed by these rules or by the Court is extended whether by order of the Court or by consent a late filing fee in respect of each extension shall be paid in the amount set out in appendix II by the Party filing the pleading or other document unless for good cause the Court order that some or all of the same be waived." (emphasis added).

I note that this rule was not referred to by the Counsel for the parties and was not taken into consideration by the learned Master.

3.28	This rule is applicable to time fixed by High Court Rules or by Court irrespective of whether application is made after the time had expired.

South Pacific Recordings Limited v. Ismail & Anor. [1985] HBC 597D/93S 13 April 1985

3.29	What was said in Skinner v Commonwealth of Australia (supra) and quoted at paragraphs 3.25 and 3.26 of this judgment equally applies to Order 3 Rule 4 of our High Court Rules.

3.30	I hold that the Learned Master had jurisdiction to deal with Respondent's application to extend time to file Statement of Defence even though the time fixed to file Statement had expired and unless Order came into effect.

Whether the Learned Master failed to take into account relevant consideration and took into account irrelevant consideration when time was extended

3.31	The factors stated in Skinner's case will apply to the Order 4 Rule 3 of High Court Rules.

3.32	Most of the factors identified in Skinner are those applied by Courts in Fiji in respect to Application to extend time prescribed by rules which are:-

(i)	Length of Delay;
(ii)	Reason for Delay;
(iii)	Whether party has claim or defence on merits;
(iv)	Whether Respondent will be prejudiced.

3.33	It must be noted that factors mentioned in preceding paragraph are to be considered when dealing with applications to extend time prescribed by rules of the Court.

3.34	Unless Orders are mostly made in situations where the defaulting party has failed to comply with time limits prescribed by rules of Court and directions given or orders made by Court. 

3.35	When dealing with application to extend time fixed by unless orders after the time to comply with unless order had expired Court should consider following factors in addition to factors listed at paragraph 3.32 (i) to (iv) of this judgment:-

(i) 	The history of the proceeding, including the making of previous orders and whether or not there has been compliance with those orders; Skinner

(ii) 	Whether defaulting party's action was contumelious.

3.36	In Re Jokai Tea Holdings Ltd. [1993] 1 ALL ER 630 (CA), Sir Nicolas Browne-Wilkinson V-C at page 637 stated as follows:-

"In my judgment, in cases in which the court has to decide what are the consequences of a failure to comply with an unless order, the relevant question is whether such failure is intentional and contumelious. The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded. But, if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed. 

…We must therefore exercise the discretion ourselves. As to the first of those questions, the action has proceeded to close of pleadings, but discovery has not taken place. This is not, as the judge suggested, a very late application for leave to amend, fundamental though the proposed amendments are. On normal principles, leave to amend would be given provided that such leave did not cause the bank uncompensatable damage and the proposed amendment raises an arguable defence." 

Length of Delay

3.37	In terms of 25 January Order, Respondent was to file Statement of Defence within fourteen days failing which judgment by default was to stand.

3.38	Statement of Defence was filed on 17 April 2013, without Court extending time for filing of Statement of Defence and after 10 April Order.

3.39	On 17 April 2013, Respondent then filed Notice of Motion to Vacate 10 April Order and for it to comply with 25 January Order which application was dismissed on 6 May 2013 due to non-appearance of Respondent or its Counsel.

3.40	On 6 June 2013, Respondent filed another Application to vacate 10 April Order. Orders made on 6 May 2013 and for it to comply with 25 January Order.

3.41	It goes without saying that the delay in filing Statement of Defence has been inordinate as Respondent was required to file Statement of Defence by 14 June 2012 under the High Court Rules and by 8 February 2013 under 25 January Order.

The history of the proceeding, including the making of previous orders and whether or not there has been compliance with those orders

3.42	On 17th May 2012, the Plaintiff filed Writ of Summons and Statement of Claim.

3.43	On 18th May 2012, Writ of Summons was served on the Respondent.

3.44 	On 28th November 2012, (six months after service) default judgment was entered against the Respondent.

3.45	On 2nd January 2013, Respondent filed application to set aside default judgment.

3.46	On 25th January 2013, default judgment was set aside by consent on the conditions that the Respondent file its statement of defence within fourteen (14) days and costs of $300.00 be paid prior to the filing of the defence.

3.47	On 21st March 2013, (almost four months after default judgment was set aside by consent) Appellant filed summons for assessment of damages.

3.48	Under 10th April Order the Master ordered that the default judgment remains.

3.49	On 17th April 2013, the Respondent made application to set aside 10th April Order and to comply with 25th January Order.

3.50	On 6th May 2013 being the date of hearing of Respondent's application Respondent or its Solicitor failed to appear and as a result Respondent's application was struck out.

3.51	On 6th June 2013 Respondent filed another application to set aside the 10th April Order and Order made on 6th May 2013 and for leave to comply with 25th January Order.

3.52	It is evidently clear that Respondent has failed to comply with the Rules of High Court, 25 January Order which was made by consent and failed to appear at hearing of its own application on 6 May 2013.

Reasons for Delay

3.53	It is well established that where any party has failed to comply with the time limits then that party is obliged to explain reason the delay.

3.54	The Learned Master at paragraph 6 of his ruling stated as follows:-

"The application was supported by an affidavit sworn by one Roziyana, Law Clerk of Valebasoga, Labasa. The affidavit referred more particularly to the delay in the Defendant's filing of its application to set aside the Court's orders of 10 April 2013 and the subsequent non-appearance of their Counsel when this motion was called for hearing on the 6 May. It made no reference as to the reason why it did not comply with the initial order of the Court granted by consent on the 25 January 2013 in which leave was granted that it file its defence and pay costs. This affidavit did not help the Court in any way at all in deciding this matter. It referred mostly to the inability of the staff in their firms Labasa office to keep tab of the filing of their documents at the High Court registry and their returnable dates. It blamed in particular, one member of their staff who is no longer with them, for not informing counsel of the hearing date as the reason why their counsel did not appear in Court on the date of hearing of their motion on the 6 May 2013. It is not a satisfactory answer or reason for the delay in not filing defence to the claim as initially ordered." (emphasis added).

3.55	I fully endorse Learned Master's comments.

Merits of Defence

3.56	The Applicant is required to show that it has defence on merits by way of Affidavit evidence.

3.57	The Affidavit in Support of the Application to vacate 10 April Order and 6 May Order was signed by Solicitors Clerk.

3.58	This again shows the Respondent's Solicitors ignorance of what has been said by this Court on various occasions regarding execution of Affidavits by Solicitors Clerk.

3.59	Solicitors Clerk state in her Affidavit what defence Respondent has to Appellant's claim.

3.60	Learned Master should have rejected the Affidavit in Support outright as it breaches the established principle.

3.61	Even though the Solicitors Clerk stated that Respondent has defence to Appellant's claim no evidence in the form of any Agreement or correspondence has been put in evidence.

3.62	Appellant's claim is that it paid $12,000.00 on 19 February 1992, for provision of car park at its premises whereas Defendant is saying it was to provide car park at different place.

3.63	Respondent has admitted that to-date no car parking space has been provided so far, and they are currently working on it.

3.64	Since there was no evidence provided to show that the Respondent had meritorious defence Learned Master should have considered this is an important factor.

Whether Appellant is Prejudiced

3.65	Appellant is a commercial entity and has paid $12,000.00 in the year 1992 for provision of car parking spaces.

3.66	Like any other commercial entity Appellant has lost the use of the sum of $12,000.00 for last twenty-three (23) years for its own benefit.

3.67	Failure by Respondent to provide car parking spaces within a reasonable time could have also prejudiced the Appellant.

3.68	Hence, the delay by Respondent in complying with rules and having this matter dragged due to their own fault and incompetence has caused Appellant prejudice and Learned Master should have taken this factor into consideration.

Whether failure to comply with unless Order was contumelious

3.69	As stated at paragraph 3.25 of this Ruling, I find that Respondent's failure to comply with the rules and unless Order to be contumelious and in total disregard to the High Court Rules and Learned Master's Orders.

3.70	Court should loath to extend time or grant litigants like the Respondent in this action any indulgence.

3.71	I therefore find that Learned Master has exercised his discretion wrongly by not taking relevant consideration and I make following findings:-

(i)	Respondents delay in complying with unless Order has been inordinate;
(ii)	Respondent has failed to give any satisfactory reason for the delay;
(iii)	Respondent has failed to provide any evidence to show it has defence on merits;
(iv)	Appellant has been prejudiced by the delay;
(v)	Respondent's action has been contumelious and in blatant disregard to High Court Rules and Learned Master's Orders.

Whether Learned Master stretched principles in Samat v. Qelelai HBC 175 of 2002L applied and adopted in Westmall Limited v. CUL (Fiji) Ltd.

3.72	I agree with Appellant's Submission that the Learned Master stretched what is said in Westmall Limited v. Cul (Fiji) Limited HBC 175 of 2001L.

3.73	In Westmall Limited the then Master sitting at High Court Lautoka struck out Plaintiff's claim for failure to comply with an unless order which according to his Lordship Justice Inoke (as he then was) was not clear. Court also noted Defendant was partly to be blamed in Westmall case.

3.74	Courts in Commonwealth jurisdiction and Fiji have over period of time have identified various factors that Court needs to consider in dealing with application for extension of time. In order to do justice between the parties Court need to consider those factors. 

3.75	If the Courts start to grant indulgence to litigants readily then the High Court Rules and unless Orders made by Court would serve no purpose.

Whether there is a need to serve Application of Assessment of Damages when Defendant is in continuous default in filing Statement of Defence

3.76	I agree with Learned Master that application to assess damages had to be served on the Respondent.

3.77	It must be noted that application to assess damages must be served on the opposing party irrespective of whether Judgment has been obtained in default of notice of intention to defend and Statement of Defence or failure to comply with unless Order or for want of prosecution.

3.78	I accept Appellant's Submission that failure to serve application to assess damages was not relevant to Respondent's application before the Learned Master.

Costs

3.79	I have taken into consideration that the Appellant mainly challenged jurisdiction of the Learned Master to hear the application to extend time subject to 25 January Order. 

4.0	Conclusion

4.1	I make following declaration/orders:-

(i)	Learned Master had jurisdiction/discretion to deal with Respondent's Application to extend time to file Statement of Defence;

(ii)	Learned Master's Order granting Respondent fourteen (14) days to file Statement of Defence is set aside;

(iii)	Statement of Defence dated 20 September 2012, and filed on 26 September 2013, is struck out;

(iv)	Respondent do pay Appellant $1,300.00 being costs assessed by the Learned Master;

(v)	Respondent pay Appellant costs of this appeal assessed in the sum of $800.00;

(vi)	This action be adjourned before Master of the High Court for assessment of damages.

K. Kumar
JUDGE

At Labasa
10 February 2016

Haniff Tuitoga for the Appellant/Plaintiff
Samusamuvodre Sharma Law for the Respondent/Defendant