Kiribati Ports Authority v Obetaia (trading as KAS Wheels Services) [2023] KIHC 6; Civil Case 21 of 2022; Miscellaneous Application 54 of 2022 (5 May 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 21 OF 2022;
MISCELLANEOUS APPLICATION 54 OF 2022.

BETWEEN:
KIRIBATI PORTS AUTHORITY
Applicant

AND:
ARIBETA OBETAIA T/A KAS WHEELS SERVICES
Respondent

Date of Hearing: 4 APRIL 2023
Date of Judgment: 5 MAY 2023

Appearances: Ms. Elsie Karakaua for the Applicant
Ms. Kiata Kabure for the Respondent

JUDGMENT

A brief fact of the case;

The Statement of Claim was filed with the High Court registry on the 27^th of June 2022 for the compensation of 5 units used vehicles and other damages claimed by the plaintiff.

The applicant/defendant filed their appearance on 18 July 2022 but failed to file their defence. In the absence of defence, judgment in default was entered on the 10^th of August, 2022.

The Writ of Fieri Facias was signed on 1^st September 2022.

On 17^th of August 2022, the Kiribati Ports Authority (KPA), through their lawyer, filed their application (this Miscellaneous application) to set aside the Default Judgment and the application to stay the execution of the Writ of Fifae. The application was supported by the affidavit of the KPA’s Chief Executive Officer, Mr. Ruatu Titaake. The Court registry did not accept their application as it was supposed to be filed as a Miscellaneous Application, hence the second filing on 29^th August 2022.

Issues:

Following the famous case of Waysang Kum Kee v Abamakoro Trading Co Ltd [2001] KICA 9, the issues are as follows;

1. Whether there is a substantial defence,
2. Whether there is a justifiable excuse for failing to file a defence on time, and

100. Whether the respondent/plaintiff will suffer irreparable harm if the Default judgment is set aside.
     

1. Whether there is a substantial defence:

The case of Kiribati Ports Authority v SOAK [2019] KICA 4, para 18 showed that the supporting affidavits were accepted to show arguable defences. The applicant/defendant’s CEO deposed in his affidavit that their defence is that they have statutory powers to auction the vehicles when the consignee could not pay off her storage charges. The respondent/plaintiff argued that no proposed defence was filed with the application; therefore, it is unclear whether they have a substantial defence. The applicant responds that there is no need to file a proposed defence as their defence is mentioned in their CEO’s affidavit. I agree with this view and find that the applicant has a substantial defence stated in their CEO’s affidavit.

2. Whether there is a justifiable excuse for failing to file a defence on time:

The applicant/defendant failed to file its defence because they required further and better particulars. They sent the letter regarding this need on 12 August 2022, only to be informed by the respondent/plaintiff that a default judgment had been entered against them on the 10^th of August 2022. The respondent argued that the applicant’s excuse was unreasonable as they could have asked for this further information before the defence due date. I agree with the respondent; a party must know the importance of adhering to the timelines stated in the Court rules, especially where a qualified lawyer represented this party.

100. Irreparable harm to the plaintiff/respondent:

The court is informed by the respondent’s counsel that the damage the respondent would suffer if the default judgment is set aside would be the delay in completing her case. To me, this is normal, as the case proceeding would have to start from the beginning if the default judgment is set aside. I expect something more serious than this.

The application to set aside the judgment was made seven days after the date of the judgment or two days after becoming aware of the judgment, refer to paragraph 4 of CEO Titaake’s affidavit. For ease of reference, the default judgment was entered on 10^th August 2022. Defendant wrote to the plaintiff for further and better particulars on 12 August 2022. On 15 August 2022, the defendant became aware of this judgment. On 17 August 2022, they filed their application to set it aside; on 29 August 2022 they filed a corrected one. This shows their quick action to set aside the judgment against them as soon as they became aware. They did not sleep on this, indicating their seriousness about the case against them. It would be unjust to deny them the chance to have their side heard, especially if there is no serious harm to be suffered by the respondent/plaintiff if the default judgment is set aside.

Decision:

Following the remark of McMllin J in Russell v Cox [1983] NZLR 654 at 659, which was quoted in the KPA v SOAK case above, it is necessary to look at several other factors of the case to get an informed decision as to whether or not it is just in all circumstances to set aside the judgment to allow the justice of the case to be measured, in the context of procedural rules whose overall purpose is to secure the just disposal of litigation.

In light of the above reasons, this court finds that although there is no justifiable excuse not to file a defence on time, the fact that the defendant/applicant has an arguable or substantial defence, together with the fact that the respondent/plaintiff did not show serious harm if the judgment is set aside, the court makes the following orders;

1. The application to set aside the default judgment is granted,
2. The application to stay the execution of the writ of Fieri facias is granted.
3. Cost of $150 is to be paid to the respondent/plaintiff.
   

The respondent/plaintiff also raised the need for the applicant/defendant to deposit $30,000 into court to abide by the decision of the Court after trial as in the case of Moel Trading Co Ltd v King Holdings Ltd [2019] KIHC 60; Miscellaneous Application 51 of 2019 (14 June 2019). I feel that the circumstance of that case is different from the case at hand. In this current case, the applicant/defendant acted immediately to set aside the default judgment against them, while in the Moel case, the applicant/defendant waited for nearly nine months to apply for the judgment to be set aside. The request is therefore denied. However, I set out the following conditions;

- Further and better particulars to be settled within two weeks, and
- Defence must be filed and served within two weeks thereafter, and the case will take its own course.

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice