Kotua v Tiarite Kwong (trading as Taotin Trading) [2025] KIHC 2; Miscellaneous Application 04561 of 2024 (31 January 2025)

IN THE HIGH COURT OF KIRIBATI

MISCELLANEOUS APPLICATION 2024-04561 from
HIGH COURT CIVIL CASE 36 of 2020

BETWEEN: MWAMWA KOTUA

Applicant

AND: TIARITE KWONG T/A TAOTIN TRADING

Respondent

Date of Hearing: 2 December, 10 December (Written submissions)
Date of Judgment: 31 January 2025

Appearances: Mr. Banuera Berina for the Applicant
Ms. Taaira Timeon for the Respondent

JUDGMENT

Introduction

1.1. This is an application to set aside the default judgment entered on 7 July 2020 for the failure of the applicant to file her appearance and defence within the required period. This application was filed on 9 September 2024, 4 years after the judgment was entered.

1.2. On 23 August 2023, the respondent filed their miscellaneous application, Misc. App 61 of 2023, to enforce the default judgment through an oral examination of the applicant. On 26 August 2024, the respondent’s miscellaneous application was listed for the Pre-trial Conference (PTC), and the applicant was served. That’s when the applicant sought legal assistance.

2. Principle for setting aside default judgment
   

2.1. As stated in Waysang Kum Kee v Abamakoro Trading Limited [2001] KICA 9, the court must consider the following three requirements before making its decision.

-Whether the defendant has a substantial defence

-Whether the defendant’s failure to take any steps or to appear at the hearing was excusable

-Whether the plaintiff will suffer irreparable harm if the judgment is set aside.

3. Analysis
   

3.1. The applicant claimed she did not know she should enter her appearance and defence within the required period. She is not familiar with the court process and procedures. She also could not come to South Tarawa from Nonouti to seek legal assistance. Her mother was sick, and her father was an elderly man. She came to South Tarawa in August 2024 when she received a notice of the Pre-trial conference for the enforcement of the default judgment.

3.2. The applicant stated during cross-examination that she did receive the Writ of Summons and the Default Judgment in 2020. She confirmed that she knew the content of the documents and that she would pay the respondent $10,000 plus, but she did not do anything because she did not know what to do.

3.3. The applicant denied the allegations against her and further stated that she was audited several times while working for the respondent, and her works were all accounted for.

3.4. On the other hand, the respondent argued that if the applicant denied the allegations, she should be worried and seek legal assistance as soon as possible.

3.5. I agree with the respondent that the four-year delay is not reasonable. The fact that she lived on the outer island should not prevent the applicant from getting legal assistance regarding the claim against her. The amount is not small; she should be concerned about the allegations and clear herself.

3.6. The applicant also raised the issue of the delay being partly the respondent's fault since they just applied for enforcement of their default judgment after 4 years. I do not accept this argument. Enforcing the judgment is the respondent’s right. This does not concern the applicant’s decision to set aside the judgment.

3.7. The applicant filed a draft proposed defence on 9 August 2024, which generally mentioned that she denied the allegations because she had been audited and cleared. This may be their defence, but the delay is substantial. The respondent has applied to enforce the judgment. The respondent is entitled to enjoy the fruit of their judgment.

3.8. In the circumstances of the matter, justice requires the application to set aside the default judgment to be denied.

4. ORDER
   

4.1 In light of the above reasons, the application to set aside the default judgment is denied. Costs to the respondent, to be taxed if not agreed.

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice