Fiji Development Bank v Vakausu [2011] FJMC 86; CC207.2009 (1 August 2011)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Civil Case No: - 207/2009

BETWEEN:

FIJI DEVELOPMENT BANK
PLAINTIFF

AND:

TOMASI VAKAUSU
1ST DEFENDANT,

AND:

AVIUTA BAINIMOLI
2ND DEFENDANT

For Plaintiff: - Mr. Nand,
For 2nd Defendant: - In person.

RULING

1. This is an application by the 2nd Defendant in pursuant of Order XXXII rule 11 of the Magistrates' Court Rules to set aside the Judgment entered in this action against the 2nd Defendant on 26th day of November 2009 and the Defendant be given unconditional leave to file Defence and defend this action.
   
2. The Plaintiff filed his affidavit in reply to the affidavit in support filed by the 2nd Defendant with his said notice of motion. Subsequently both parties were invited to file their written submission but only the Plaintiff tendered. Upon considering the respective affidavits of the Plaintiff and the 2nd Defendant and the written submission tendered by the Plaintiff, I now proceed to pronounce my ruling on this application.
   
3. The brief chronological background of this action is that the plaintiff instituted this Civil action against the 1st and the 2nd Defendants for recover sum of $ 4,835.63 being the balance money owed to the Plaintiff which were lent and advanced to the 1st Dependant and guaranteed by the 2nd defendant. Upon service of the writ of summon the matter was called on 26th of October 2009, but both defendants failed to appear in the court therefore a default judgment was entered against the Defendants.
   
4. On 13th of April 2010, Judgment debtor summons were issued against the Defendants. On 17th of May 2010 the 2nd Defendant appeared in court and informed the court a proposal for the repayment of the debt. After several adjournments in the pretext of a possible repayment proposal, the 2nd Defendant changed his position for repayment and filed this notice of motion seeking an order that the Default Judgment entered against him be set aside.
   
5. In his affidavit in support, the 2nd Defendant contended that he became a guarantor unknowingly and has a meritorious defence against the Plaintiff.
   
6. The law pertaining on the setting aside of judgment obtain by default has succinctly discussed by Fry LJ in Anlaby v Praetorious (1888) 20 Q.B.D.764 where it was held that, " there is a strong distinction between setting aside a judgment for irregularity in which case the court has no discretion to refuse to set it aside and setting it aside where the judgment thought regular, has been obtained through some slip or error on the part of the defendant in which case the court has a discretion to impose terms as a condition of granting the defendant relief".
   
7. The Defendant has not advanced any argument of irregularity and I hold this is a regular judgment obtained in default of the defence. In this circumstance, the defendant does not have a right to set aside the default judgment as per irregular judgment by default and it is a matter of exercise the discretion of the court.
   
8. Hon Justice Patik in Pravin Gold Industries Ltd v The New India Assurance Company Ltd, (2003), FJHC 298, HBC0250d,2002s.(4 February 2003) discussed the main principles pertaining to set aside of judgment in the exercise of court discretion, where it was held that "The basic principles applicable to setting aside judgments in the exercise of Court's discretion are set out in Halsbury's Laws of Eng#160;#160;Vol 37 4th Ed. Para 40ter alia, thus:"hus:"In the case of a regular judgment, it is an almost inflexible rule that the application must be supported by an affidavit of merits stating the facts showing that the defe has a defence on the meritmerits,... For this purpose it is enough to show that there is an arguable case for a triable issue."There it is further stated:"There is no rigid rule requiring the applicant to explain why he allowed judgment to go by default, but nevertheless, at least in the case of a regular judgment, such explanation is obviously desirable to enable the court to exercise its discretion, especially as to any and if so what terms should be imposed."
   
9. I now turn to the propose ground of defence submitted by the 2nd Defendant, where he mainly contended that he became a guarantor in this case unknowingly and the Plaintiff must exercise his power to recover the said amount due from the 1st defendant by executing the Bill of Sale No 2304 which I do not find an arguable or triable issue. In order to form my finding as such I was greatly assisted by the findings of Justice Jitoko in "Council of the Fiji Institute of Technology v Anania Cara, Jone Tawaketini and Aminiasi Tabuakula ( HBC 0258R of 2002s) where Justice Jitoko has extensively discussed the responsibilities of the guarantor and the rights of the creditor against the guarantor.
   
10. Furthermore, the 2nd Defendant has not given satisfactory explanation of his delay and change of position from his own proposal of settlement which he made on 17th of May 2010.
    
11. Having considered the reasons set out in above paragraphs, I dismiss the application by the 2nd Defendant in pursuant of Order XXXII rule 11 of the Magistrates' Court Rules to set aside the Judgment entered in this action against the 2nd Defendant on 26th day of November 2009.
    
12. Cost of this application shall be the cost of the cause.
    

On this 01st day of August 2011.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.