Chand v Raj [2019] FJHC 727; HBC172.2018 (24 July 2019)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 172 OF 2018

BETWEEN DINESH CHAND of Chiba Ken Shiroi shi Sasazuka 2-5-1-809, Japan, Professional Golfer.

PLAINTIFF

A N D RAJIV RAJNEEL RAJ of Waimalika, Nadi, Businessman.

DEFENDANT

Appearances : Mr V. Chandra for the plaintiff
Mr E. Maopa for the defendant
Date of Hearing : 24 July 2019
Date of Ruling : 24 July 2019

R U L I N G

[01] The plaintiff has entered a default judgment against the defendant for the sum of $50,000.00 and for damages and costs to be assessed. The default judgment has been entered on the basis that there was no defence filed by the defendant.

[02] The action was initially instituted by way of originating summons, which was subsequently converted into a writ action with liberty to amend the pleadings. After conversion, Mackie J (as he then was) referred the matter to the Master for pre-trial steps.

[03] When the matter was called over before the Master on 26 February 2019, the Master advised the plaintiff to file and serve a writ and recorded that the matter is to take its normal course. Thereafter, the plaintiff filed a new writ of summons within the pending action, to which the defendant did not file his defence.

[04] It would be improper to file a fresh writ in a pending action. Only notice of motion or summons may be filed in a pending action.

[05] Where, in an action begun by originating summons, if the court orders it to be continued as if the action had been begun by writ, the proceedings will continue as if the action had been so begun and any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof (see O 28, R 9 (1), the High Court Rules).

[06] The default judgment appears to be irregularly entered while there was a defence filed by the defendant.

[07] When Mackie J ordered to convert the originating summons into a writ, the affidavits filed by the parties will stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof. Apparently, Mackie J ordered that the parties were at liberty to amend their pleadings. He did not order to file a new writ in the proceedings.

[08] The plaintiff had filed affidavit in support of the originating summons, the defendant filed affidavit in opposition and the plaintiff filed affidavit in reply. These affidavits will stand as writ of summons, statement of defence and reply to defence respectively. A new writ was absolutely unnecessary. Instead, the parties may have filed amended pleadings.

[09] The default judgment has been entered based on the new writ filed in the action. The plaintiff would not have filed a new writ in the proceedings as there were pleadings filed by the parties previously. The new writ filed by the plaintiff should be struck out. So I do. I would accordingly set aside the default judgment entered against the defendant as it was entered irregularly.

[10] The plaintiff must file a summons for direction to further proceed with the action. The plaintiff will file and serve the summons for direction within 14 days. Thereafter, the matter will be called over before the Master for pre-trial steps.

The outcome

1. The new writ of summons filed on 12 March 2019 is struck out.
2. The default judgment entered against the defendant is struck out.
3. The plaintiff must file and serve a summons for direction within 14 days.
4. Thereafter, the matter will be called over before the Master for pre-trial steps.
5. Costs shall be in the case.
   

DATED THIS 24^TH DAY OF JULY 2019 AT LAUTOKA.

...........................................

M.H. Mohamed Ajmeer

JUDGE

Solicitors:

For the plaintiff: Millbrook Hills Law Partners, Barristers & Solicitors

For the defendant: Babu Singh Associates, Barristers & Solicitors