Yu v Kelly [1998] SBHC 14; HC-CC 050 of 1997 (27 February 1998)

HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 50 of 1997

TOM YU

v

SETHUEL KELLY

High Court of Solomon Islands
Before: Lungole-Awich, J
Civil Case No. 50 of 1997

Hearing: 26 February 1998
Judgment: 27 February 1998

Counsel: A Radclyffe for the plaintiff;
S Kelly - defendant in person

JUDGMENT

(LUNGOLE-AWICH, J): The defendant, Mr. Sethuel Kelly participated in the case against him up to the stage of filing defence. He gave a post office box number as his address for service and collected case papers until he filed his defence on 24.3.1997, thereafter he did not collect case papers sent to him and did not participate in further pleadings. Mr. Radclyffe acting as solicitor for the plaintiff continued with the case; he obtained direction orders, filed discovery papers and waited for the defendant to do the same. When no action was forthcoming from the defendant, Mr. Radclyffe applied to have the defence struck out and judgment entered. His application was successful and judgment was entered for the plaintiff for $118,000.00 on 22.9.1997.

The defendant has now showed up following substituted service of order for examination of debtor, by announcement on the radio and publication in newspaper. The consequence of failing to attend would mean warrant of arrest would issue. The defendant has told court that he has been at Weather Coast, South Guadalcanal, he did not receive service of any case papers since he filed his defence, the Post Office box was no longer available to him. He has applied to have the judgment entered against him set aside. He raised the grounds that he has no representation by solicitor and counsel in court. He said that was “a breach of supreme law.” He also said that the contract between him and the plaintiff failed because Mr. Radclyffe interfered with the contract when he acted for another client to obtain the same piece of land for that other client.

The defendant opposed the application, but said that he would welcome full trial because it would give opportunity for the full story to come out. In the event of the court setting aside the judgment of 22.9.1997, he requested conditions to be imposed, one of them was payment of $88,000, admitted received by the defendant.

First it is to be stated clearly that there is no law that requires that parties in court must have professional representation, all that is required is that parties be afforded opportunity to obtain representation if they wish. The question of the costs involved is entirely the business of the party interested in obtaining representation. Sometimes the office of Public Solicitor assists based on the means of the person requesting and other considerations. In this case the defendant had more than enough opportunity to obtain representation; the case was commenced on 24.2.1997 and he was served with writ of summons on 28.2.1997.

It is also baseless for the defendant to submit that he be excused for not receiving service of case papers. He gave an address and he knew he had a case in court in which he filed defence. He must have expected further case papers even if it be simply notice to attend trial. He ought to have checked even at court after a long time without any papers being received by him.

The next consideration is as to whether the defences are likely be sustainable. At first the defence was that transfer of the land was still in the process to completion. Lately the defences are that the plaintiff's solicitor has interfered with the transfer, while the solicitor was acting for another client and the question of intervening impossibility is raised. At this stage it is not required of the court to evaluate the evidence with a view to determining the case. Evaluation is only for assessing prospect. It seems there is arguable case of intervening impossibility. The defendant has presented evidence of offer of the land to him, the basis of his entering the contract with the plaintiff. The court allows his application. The judgment dated 22.9.1997 is set aside and the defence dated 24.3.1997 filed the same day is restored as pleading. But there are conditions, namely:

1. The defendant is to make discovery by list within 7 days of today’s date (i.e. serve list of documents on plaintiff’s solicitor and file at court within 7 days).

2. Defendant to inspect discovered documents of the plaintiff, also within 7 days of today’s date.

3. Defendant to supply interrogatories, if any, within 7 days from the last days required in 1 and 2 (i.e. 14 days of today’s date).

4. Defendant to pay costs of the plaintiff for the proceedings relating to applications by the plaintiff for direction orders, discovery, examination of debtor and for the application to set aside judgment. The costs are to be set out in a bill to be agreed or taxed by the Registrar. The defendant is to collect the bill from the office of the plaintiff's solicitor or from the court's registry within 14 days and to pay within 21 days of today’s date.

5. Defendant is to deposit another $10,000 in court as security for any future wasted costs, the sum to be paid within 21 days of today's date.

6. The defendant to supply within 2 (two) days an address in Honiara at which the plaintiff may serve all papers. If no address is supplied, the judgment of 22.9.1997 will be restored without the need for the plaintiff applying for restoration.

7. Should the defendant fail to meet any of the conditions herein the judgment of 22.9.1997 will be restored without the need for the plaintiff to apply to court.

The plaintiff is asked to perfect the orders herein.Dated this 27^th day of February 1998
At the High Court
Honiara

Sam Lungole-Awich
JUDGE