Lovell v Emmett Logging (SI) Ltd [2007] SBHC 42; HCSI-CC 551 of 2004 (6 March 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 551 of 2004

ALLAN LOVELL

-v-

EMMETT LOGGING (SI) LTD AND RONALD EMMETT

Date of Hearing: 11 March 2005
Date of Ruling: 6 March 2007

G. Suri and M. Tagini for the Plaintiff
P. Lavery for the Defendants

RULING on summons for judgment in default of defence

Mwanesalua J. This is a claim under O.29 r 8 for judgment by default of defence. An appearance had been entered by the defendant on the 3 December 2004. A document entitled "defence" was lodged with the court on 10 March 2005. The Plaintiff has seen the defence but does not deprive the plaintiff from complaining about the default in defence for it is out of time allowed by the High Court Rules and needs the leave of the court if it is to be allowed to be filed. There has been a strict failure to file on time and the fact that it has been accepted over the counter cannot obviate the need to comply with the rules when time is prescribed.

The plaintiff claims inordinate delay for the Writ was served well before appearance was entered. The plaintiff relied on SIWA-v-Charles Siosi a 2005 unreported decision of this court.

Mr. Suri says there is then, no viable defence on the material before the court since the document cannot be read without leave.

The defence shows a dispute on the factual basis of the Plaintiff’s statement of claim. Clearly there are issues to be tried. By virtue of the act of the Registry, the "Defence" document was lodged in time, after the notice of motion seeking judgment. In these circumstances the rules require leave to file a defence, although out of time. In this case, delay has been occasioned through no fault of the parties and it would be unfair to now expect the defendant to justify the delay in the late lodgment of the document, "defence". So delay by the defendants in this case is not of the issue.

As I say, the defence discloses good grounds to defend the Plaintiff’s claim. It is appropriate that the matter proceed on the pleadings. I grant leave for the document to be read as a pleading.

The motion for default judgment is dismissed. Costs shall be costs of the cause.

Mwanesalua J.

THE COURT