State Transport Ltd v Housing Authority [1989] FijiLawRp 34; [1989] 35 FLR 13 (18 January 1989)

[1989] 35 FLR 13

HIGH COURT OF FIJI

Civil Jurisdiction

STATE TRANSPORT LTD

v

THE HOUSING AUTHORITY

Palmer J

18 January 1989

Practice (Civil) - Judgment by consent - application to set aside - whether application may be made in action settled or whether fresh action must be commenced - application for stay - whether stay warranted RHC O 47 r 1.

Six months after Judgment was entered for the Plaintiff by consent the Defendant sought to set the judgment aside. Dismissing the application the High Court HELD: that (i) an application to set aside a consent judgment must be made in a fresh action and (ii) there were no exceptional circumstances to justify a stay of the judgment entered.

Cases cited:

Ainsworth v. Wilding (1896) 1 Ch 473
de Lasala v. de Lasala [1980] AC 546
Emeris v. Woodward (1890) 43 Ch 185
Great North-West Central Railway Co. v. Charlesbois (1899) AC 114
Huddersfield Banking Co. Ltd v. Henry Lister & Sons Ltd (1895) 2 Ch 273
Mohammed Rasul v. Hazara Singh 8 FLR 140
Wilding v. Sanderson (1897) 2 Ch 534

S.M. Koya for the Plaintiff
K. Bulewa for the Defendant

Interlocutory application in the High Court.

Palmer J:

This is an application to set aside a consent judgment. The point it raises is an important one, nevertheless it may be disposed of shortly. The point being whether the Court giving a consent judgment may set the same aside in the same action.

The Plaintiff, a building and engineering contractor claimed the sum of $34173.54 from the Defendant in respect of work executed by it for the Defendant. The Writ and Statement of Claim was issued on 26.4.88. The Defendant entered Appearance on 28.4.88. On 4.5.88 the Plaintiff filed a Summons for Summary Judgment. On 14.5.88 the Defendant filed a Defence. Affidavits in support and in opposition to the Summons were filed. On 17.6.88, to which date the application for summary judgment had been adjourned, the parties appeared by Counsel before His Lordship Mr. Justice Fatiaki. They announced that the action had been settled for $6000 less than the amount claimed and consented to judgment for the Plaintiff in the sum of $28,173.54 and costs. Counsel for the Defendant on this occasion was a Barrister and Solicitor employed by the Defendant. The judgment was sealed and entered on 21.6.88.

On 20.7.88 the Defendant filed a Notice of Motion in this action asking "for an order that the consent judgment entered in this action be set aside and/or the execution of the said order be stayed" upon grounds set forth in the supporting affidavit. The plaintiff filed an affidavit in Reply and the Defendant rejoined with a further affidavit. The threshold question which arises immediately is whether this Court has jurisdiction to entertain the application to set aside the consent judgment in the present action.

Counsel for the applicant submitted that it has. He submitted a number of grounds, supported by some affidavit evidence and cited a number of authorities including some for the proposition that a consent judgment may be set aside on the same grounds as any agreement. However, in the process there was confusion between the merits and the mechanics.

It is clearly the law that a consent judgment is capable of being set aside, but in my view once it is passed and entered it requires a fresh action brought for that purpose-see Ainsworth v. Wilding (1896) 1 Ch. 673; Wilding v. Sanderson (1897), 2 Ch 534. Counsel cited Huddersfield Banking Co. Ltd v. Henry Lister & Son Ltd. (1895) 2 Ch. 273 in which a consent order was set aside on the ground of common mistake. However, there was a fresh action brought. Vaughan Williams, J. said on p. 276:-

"When this matter was brought before me on Motion I thought that the authorities prevented me from putting the matter right on an application in that form, and I am still of the same opinion. But, now that an action has been brought and the technical difficulty has been removed, it seems to me that the clear result of the authorities is that, notwithstanding the consent order has been drawn up and completed, and acted upon. ...... I may now set aside the order .........."

Counsel also cited Great North-West Central Railway Co. v. Charlesbois (1899), AC 114 (P.C.) but in that case too, a fresh action had been brought.

In Emeris v. Woodward (1890), 43 Ch. 185 the parties had entered into an agreement compromising the action on certain terms recorded in the agreement which was subsequently approved by the Judge. When the Plaintiff applied on Summons in the same action to set aside the agreement there was a preliminary objection that a compromise of an action cannot be set aside upon a summons.

North, J said at p. 186:-

"In my opinion the objection must prevail. I think that the Plaintiff's proper course is to bring a new action to set aside the compromise, and that he cannot by means of a Summons set aside the agreement and reopen the controversy."

The point came before the Supreme Court of Fiji in Mohammed Rasul v. Hazra Singh, 8 FLR 140.

In that case, the Plaintiff brought an action against the defendant on virtually the same grounds as a previous action between the same parties which had been settled. The terms of settlement were filed in Court. The presiding Judge endorsed the record accordingly and the suit was discontinued.

The Court held that the earlier action having been settled and discontinued the same issue could not be made the subject of a fresh action until the compromise in the first action had been set aside in an action brought for that express purpose.

The Privy Council in de Lasala v. de Lasala [1980] AC 546, 561 held that the setting aside of a consent order which is a final order on the grounds of fraud or mistake requires the bringing of a fresh action for this purpose.

In my view, it is clearly the law that a consent order cannot be set aside by application in the same action. A fresh action has to be instituted for that purpose. The principal ground of appeal therefore fails.

That being so there is no point in considering the other submissions of Counsel which go to the merits. They may fall to be considered if and when the matter is pursued to a fresh action.