Maesimae v Paine [2003] SBHC 110; HC-CC 020 of 2003 (15 July 2003)

HIGH COURT OF SOLOMON ISLANDS]

Civil Case No. 020 of 2003

MARK MAESIMAE

-v-

PETER PAINE AND JOY PAINE

Honiara: Brown PJ

Date of Hearing:
Date of Judgment:

Mr. Mark Maesimae in person
Mr. A. H. Nori for Defendant

APPLICATION TO SET ASIDE DEFAULT JUDGMENT

Reasons for decision

On the 3^rd June Peter Paine and Joy Paine, the named defendants sought by summons, orders setting aside a judgment in the sum of $12,398.36 for debt entered on the 23 May 2003, in default of defence. Earlier, on the 10 March, Mr. Nori, who appears as lawyer for the defendants, had entered a “conditional appearance” but since neither the appearance, nor a defence was filed to plead the incorrect naming of these two persons as defendants, at the expiration of the time allowed for a defence to the specially endorsed writ, the plaintiff sought and obtained judgment. The procedure complied with the roles.

The summons to set the judgment aside was originally fixed for hearing on the 25 June, when I stood the proceedings over to enable Mr. Maesimae to seek legal advice. The hearing was adjourned to the 2 July when Mr. Maesimae again appeared, without legal representation. I refused further adjournment and indicated that I would have regard to his submissions in his letter of the 24 June 2003, addressed to the Registrar.

He said:

“My position as a defence to the application is as follows:

1. A conditional appearance had been filed in the High Court on 13^th March 2003. By than a defence should have been filed.
   
2. The nature of the intending application in the summons filed on 3^rd June 2003 should have been put as a defence (by the Defendant) for further and better particulars if so does require.
   
3. This is an abuse of the High Court Civil Procedure rules to set aside default judgment when the period for filing a defence been lapsed.
   
4. Unless the defendant directs the Court to the rules as to why the defence was not filed in time so that the default judgment can be set aside, the plaintiff wish and can say that the default is upheld”.
   

In support of their application to have the judgment set aside, Mr. Paine’s affidavit was filed and read. He pleaded the absence of any agreement with the plaintiff whereby moneys could be found due and owing. He recounted the fact of a log pond land rental agreement dated 1^st August 1997 between Pedac Limited of the one part, and Samuel Siro Orion, Timothy Lii, Mark Maesimae, David Radewe and Barnabas Caliohu (as log pond owners) of the other part and annexed copy cash receipts for moneys paid pursuant to the agreement. The last receipt was in these terms:

Received from Diamond Nominees P/L Luabar Solomon Islands Limited the sum of SI Dollars: Ten thousand ($10,000.00) as final settlement per deed of agreement made 18 December 1998 between Mapo Landowners.

Received on behalf
of all landowners

Mark Masemae

Pedac Enterprises Limited was incorporated on the 14 August 1996.

On the 5^th February 2003, the plaintiff by originating statement of claim pleaded a log pond agreement dated 2^nd August 1998 and summoned Pedac Limited, (a party to the agreement) claiming the sum of $12,398.36 plus interest. By amended writ of summons, the plaintiff sued Peter Paine and Joy Paine (trading as Pedac Enterprises with the word Limited scored through) and relied on the same statement of claim (with minor omissions) as that originally forming part of the summons filed on the 5^th February 2003.

Ward CJ in giving judgment in Kayuken Pacific Limited -v- Harper SILR 1987 Civil Case judgment given on 25 February 1987, set out matters relevant to deciding whether a judgment by default of defence should be allowed to stand. He adopted reasoning in other jurisdictions, well settled, and asked:

1. What was the reason for the failure by the absent party to appear?
   
2. Has there been undue delay by the absent party in launching his proceedings for a new trial?
   
3. Will the other party be prejudiced by an order for a new trial?
   

Clearly on the material before me which I have set out in some detail, the plaintiff’s claim raises very grave doubts about the proprietary of changing the defendant parties from the incorporated company to these two individuals, whilst pleading the same facts. There has been no delay in the application, and by virtue of the conditional appearance, the defendants had in fact appeared but not quiet effectively enough as it turned out. The plaintiff will not be prejudiced by an order for a new trial, provided he institutes proceedings before the 1^st August 2003 when the limitations Act will prevent proceedings under the supposed agreement of 1^st August 1997.

It cannot be, as the plaintiff says in his letter, an abuse of rules to set aside a judgment obtained in these circumstances when the plaintiff's cause of action has been changed from one identity to another.

J R BROWN
PUISNE JUDGE