Nieng v Boardman [2009] SBHC 33; HCSI-CC 88 of 2007 (9 July 2009)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 88 of 2007

BETWEEN:

CHRISTIAN NIENG
Claimant

AND:

DAVID BOARDMAN
1st Defendant

AND

DAVID LILOMO
2nd Defendant

AND:

DOVE WINSTON SALE
3rd Defendant

Date of Hearing: 8 July 2009
Date of Decision: 9 July 2009

Mr Radclyffe for Claimant
Mr Tigulu for Third Defendant (Applicant)

DECISION ON APPLICATION TO SET ASIDE DEFAULT
JUDGMENT AND TO SET ASIDE DECISION ASSESSING DAMAGES

Cameron PJ:

1. The Third Defendant Mr Sale applies to set aside the default judgment entered against him for trespass on 31 August 2007 and to set aside the decision dated 20 March 2009 assessing the damages for that trespass at $13,600 plus costs. Mr Sale also seeks a stay of any further enforcement proceedings.

2. Default judgment was entered against Mr Sale because although his then solicitors filed an appearance on his behalf, no statement of defence was filed and served. Then, at the assessment of damages hearing in March 2009, his solicitors failed to appear despite having received notice of the hearing, and liability was fixed after the Court heard submissions on behalf of the claimant alone.

3. The principal ground of the applications to set aside are that the omissions to file a defence and appear at the damages hearing were solely the omission of Mr Sale’s then solicitors, who from the inception of the proceeding in 2007 to the assessment of damages in 2009 were alleged to have been telling Mr Sale that "everything was taken care of." Mr Sale is his sworn statement asserts that he knew of no judgment against him until about 24 April 2009.

4. I have not had the benefit of any sworn statements or other material from Mr Sale’s previous solicitors, responding to the allegations of negligence against them. All I have is the uncorroborated assertions of Mr Sale. Although it is apparent that there has been almost total inaction by those solicitors on behalf of Mr Sale in this proceeding, I consider that at some point over that two year period it was incumbent on Mr Sale to take positive action to ascertain precisely the position reached. In other words, simply to assert now that he took no steps because his enquiries of the solicitors were met with the response that "everything was taken care of" does not excuse Mr Sale from his inaction.

5. Despite this, had a real and discernible defence to the claim been identified by Mr Sale I would have been inclined to consider the applications favourably. No such defence has been identified either in the applications or the sworn statement which accompanied them.

6. Briefly, the claimant’s vacant residential land adjoins land owned and occupied by Mr Sale. The material on the file shows that when the claimant bought his land in 2002, there was already situated on it a kitchen house belonging to the neighbour, Mr Sale. In other words, Mr Sale’s kitchen house was built not on his own land but on the other side of the boundary line on land now owned by the claimant.

7. Material on the file discloses that in 2003 both the claimant and the Honiara City Council wrote to Mr Sale pointing out the encroachment and, in the case of the Council, requiring the removal of the structure forthwith. Despite that, Mr Sale to this day has taken no steps to remove the building.

8. The mere fact that he asserts that he has been using the land on which his kitchen house was built since 1991 by itself affords Mr Sale no defence.

9. Mr Sale also says the quantum of damages as assessed against him is excessive. However, I note that the learned judge adopted a reasoned approach in fixing damages, and there has been no attempt to show in what respects the level is said to be excessive.

10. For these reasons all the applications by the third defendant Mr Sale are declined. The claimant is entitled to costs and disbursements in accordance with Schedule 3 of the Solomon Islands Courts (Civil Procedures) Rules 2007.

BY THE COURT