Kumar v Kumar [2024] FJHC 211; HBC216.2018 (25 March 2024)

IN THE HIGH COURT OF FIJI AT LAUTOKA

CIVIL JURISDICTION

Civil Action No. HBC 216 of 2018

SHELVIN KUMAR of Saru, Lautoka, Contractor.

PLAINTIFF

AND

AMENDRA KUMAR & SHAINESHNI LATA aka SHAINESHNI LATA KUMAR

both of Saru, Lautoka, Self Employed and Domestic duties respectively.

DEFENDANTS

Counsel : Mr. Sharma V. for the Applicant

Ms. Cava V. for the Respondent

Date of Hearing : 22^nd February 2024

Date of Ruling : 25^th March 2024

RULING

(On Summons for Reinstatement)

[1] The plaintiff filed the writ of summons seeking the following reliefs against the defendants:

1. A declaration that the defendants are holding the property described in Housing Authority Sub-Lease No. 178409 being Lot 29 on DP No. 4721 in the Province of Ba and in the Tikina of Vuda containing an area of 22.1 perches together with all improvements on trust for the plaintiff.
2. An order that the defendants transfer property described in Housing Authority Sub-Lease No. 178409 being Lot 29 on DP No. 4721 in the Province of Ba and in the Tikina of Vuda containing an area of 22.1 perches together with all improvements to the plaintiff and in the absence of the defendants the Deputy Registrar execute on their behalf.
3. Specific Performance of the said agreement by the defendants and the plaintiffs.
4. Injunction restraining the defendants from transferring, encumbering the said property to other third parties.
5. Further or other relief that the Court may deem fit to facilitate the transfer of the property.
6. Costs on an indemnity basis against the defendants.

[2] The defendants in their statement of defence are seeking the following reliefs:

1. For an order that the plaintiffs’ claim herein be dismissed on the ground that this action is frivolous, vexatious and scandalous or an abuse of the process of the court and discloses no reasonable cause of action and has maliciously brought this action to ridicule the defendants.
2. For an order that the judgment be entered for the defendant against the plaintiff on the counter-claim.

[3] When this matter came up for trial before this court on 27^th February 2023 the plaintiff was absent. The solicitor for the plaintiff informed court that the plaintiff removed the file from their office about two months before to retain another counsel. The defendant’s counsel moves court to have the matter struck with $4,000.00 costs and the court struck out the matter with $4,000.00 costs.

[4] The plaintiff then filed this summons pursuant to Order 35 rules 1 and 2(1) of the High Court Rules 1988 seeking the following orders:

(a) That the plaintiff be granted an extension of time to set aside the orders of this Honourable Court on 27^th February 2023;
(b) That the orders of this Honourable Court on 27^th February 2023 be set aside;
(c) That the plaintiff’s claim as struck out by this Honourable Court on 27^th February 2023 be reinstated and a trial date be re-fixed for this matter;
(d) That there be a stay of execution of the decision of this court dated 27^th February 2023 pending the determination of this application;
(e) Such further or other relief as may seem fit; and
(f) Costs be in the cause.

[5] Order 35 rule 2 of the High Court Rules 1988 provides:

(1) Any judgment, order or verdict obtained where one party does not appear at the trial may be set aside by the Court, on the application of that party, on such terms as it thinks just.
(2) An application under this rule must be made within seven days after the trail.

Order 3 rule 4 of the High Court Rules Provides;

(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 authorised 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.

[6] Order 3 rule 4 of the High Court Rules 1988 confers discretion on the court of extend the time within which a particular act is required to be done. However, for the court to exercise such discretion, the party must provide the reason for the delay.

[7] In this matter the plaintiff has failed to give sufficient reasons explaining the delay. In his affidavit the applicant states that the order made by the court striking out the action was served on him by the defendant’s solicitors on or about May 2023. The application to reinstate the matter must be made within 7 days from the trial and not 7 days from its service. Even if it’s assumed that it should have been made within 7 days from the service the plaintiff is still out of time.

[8] Since the plaintiff has not provided the court with sufficient grounds for the delay the application for extension must be refused.

[9] In Rosedale Ltd v Kelly [2004] FJHC 429; HBC0323.1997L (11 June 2004) Conners J has discussed this issue in detail.

The issues for consideration by the court on an application to set aside the judgment entered after trial are set forth in Shocked and Another v Goldschmidt and Others [1998] 1 All E.R. 372. The leading judgment of the court was given by Leggatt LJ who said at page 377: -

“The cases about setting aside judgments fall into two main categories: (a) those in which judgment is given in default of appearance or pleadings or discovery, and (b) those in which judgment is given after a trial, albeit in the absence of the party who later applies to set aside. Different considerations apply to these two categories because in the second, unless deprived of the opportunity my mistake or accident or without fault on his part, the absent party has deliberately elected not to appear, and an adjudication on the merits has thereupon followed.”

Jenkins LJ in Grimshaw v Dunbar [1953] 1 All E.R 350 at 355 said:

“...a party to an action is prima facie entitled to have it heard in his presence. He is entitled to dispute his opponent’s case and cross-examine his opponent’s witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. If by mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that the litigant who is accidentally absent should be allowed to come to the court and present his case, no doubt on suitable terms as to costs...”

Leggatt LJ in Shocked after considering the authorities then set out at p. 381 a series of propositions or “general indications” which are: -

(1) Where a party with notice of proceedings has disregarded the opportunity of appearing at and participating in the trial, he will normally be bound by the decision.
(2) Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important: unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing.
(3) Where the setting aside of judgment would entail a complete retrial on matters of fact which have already been investigated by the court the application will not be granted unless there are very strong reasons for doing so.
(4) The court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success.
(5) Delay in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it.
(6) In considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered: where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour.
(7) A material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences.
(8) There is a public interest in there being an end to litigation and in not having the time of the court occupied by two trials, particularly if neither is short.”

The Lord Justice then said that the predominant consideration is the reason why the party against whom judgment was given absented himself.

“It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case” – Rich J in Cameron v Cole [1944] HCA 5; 68 C.L.R. 571 at 589.

Most recently, the issue has been considered by the Supreme Court of New South Wales Court of Appeal in Murphy v Doman (as representative of the estate of Simpson (dec’d)) – unreported [2003] NSWCA 249 – 11 September 2003 where at paragraph 48 Handley JA said:

“Taylor v Taylor [1979] HCA 38; [1979] 143 CLR 1 and Allesch v Maunz [2000] HCA 40; [2000] 203 CLR 172 are decisions to the same effect. They establish that where judgment had been given in the absence of a litigant who has been denied a hearing through no fault of his own and where his absence has been adequately explained, that litigant has a prima facie right to have that judgment set aside to permit a re-hearing on the merits.”

[10] The plaintiff avers in his affidavit in support that when he was informed that he had taken his file to Vijay Naidu & Associates. The plaintiff’s position is that it was a misunderstanding because Vijay Naidu & Associates are handling two other matters. When this matter was mentioned before this court 18^th May 2022 both the plaintiff and the defendant were represented by their respective solicitors. On the same the trial of the matter was fixed for 27^th and 28^th of February 2024. The plaintiff, in between, had more than nine months to inquire about this matter from his solicitors but he has shown no interest in finding out the status of his case. There may have been some misunderstanding between the plaintiff and the solicitors but he does not explain why he was not present in court on the day of the trial.

[11] For the reasons set out above the court makes the following orders.

ORDERS

1. The plaintiff’s summons filed on 13^th July 2023 is struck out.
2. There will be no order for costs.
   

Lyone Seneviratne

JUDGE

25^th March 2024