Waysang Kum Kee v Shantilal Brothers (Fiji) Ltd [2015] KIHC 13; Civil Case 4.2011 (24 March 2015)

IN THE HIGH COURT OF KIRIBATI 2015

CIVIL CASE NO. 4 OF 2011

BETWEEN

WAYSANG KUM KEE
PLAINTIFF

AND

SHANTILAL BROTHERS (FIJI) LTD
DEFENDANT

Before: The Hon Chief Justice Sir John Muria

24 March 2015

Ms Batitea Tekanito for Plaintiff
Ms Taoing Taoaba for Defendant

RULING

Muria, CJ: This is an application for setting aside judgment in default. The applicant/defendant were represented by a lawyer, Bhavna Narayan, when the Writ of Summons was served on them on 6 May 2011. On 24 May 2011 Appearance was entered for the defendant by their lawyer. The address for service on the defendant's Counsel was the Office of TA Law Firm, BTC Main Office, Takoronga.

The defendant allowed time to file a defence slipped by. They knew they have to file a defence but failed to do so. They knew that judgment in default of defence was the next consequential step if no defence was filed.

Judgment in default of defence was entered against the defendant on
1 July 2011 and service of default judgment on the defendant was not a reminder that they should file defence. It was to notify them that they have defaulted in filing a defence and that the default judgment was the consequence of that default.

Not surprisingly the defendant was met with the default judgment for failing to file a defence.

Application to set aside the default judgment was not filed until
2 April 2012, almost a year later.

In the affidavit in support of the application, it stated that a defence was filed on 16 August 2011. Unfortunately that cannot be correct. There was no defence filed at all, as no application was filed asking for permission to file a defence out of time. The Court registry clerk should not have accepted it as filed. So the defence that was said to have been filed on 16 August 2011 was no defence at all.

There is just no good reason at all to excuse the defendant for failing to file a defence in time. The plaintiff must be entitled to enjoy the fruit of his judgment.

The application to set aside judgment in default of defence is refused with costs to be taxed, if not agreed.

Dated the 24th day of March 2015

SIR JOHN MURIA
Chief Justice