Isabel Provincial Government v Tauriki [2009] SBHC 34; HCSI-CC 300 of 2008 (29 July 2009)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 300 of 2008

BETWEEN:

Isabel Provincial Government
Claimant

AND:

Roger Tauriki
Defendant

Date of Hearing: 29 July 2009
Date of Decision: 29 July 2009

Mr. W Rano for Claimant
Mr. M Pitakaka for Defendant

DECISION ON APPLICATION TO SET ASIDE JUDGMENT

CAMERON PJ: This an application by the defendant Roger Tauriki to set aside a judgment of $300,000 entered by default against him on 30 October 2008. The reason why default judgment was entered was that no response to the claim was filed on behalf of the defendant following service. The defendant in support of the application to set aside has made a sworn statement which makes it apparent that he instructed a lawyer at an early stage following service of the claim on him but that lawyer for reasons unexplained failed to carry out his instructions to file a response and a defence. I am satisfied from the affidavit that the failure to file a defence rests with the defendant’s solicitor and was not the fault of the defendant. However, in this application the defendant has an onus to satisfy the court that there is a proper defence to the claim. Put another way that there is a triable issue. The judgment sum represents a business licence fee payable to the claimant in respect of timber felling. It represents a liability of $100,000.00 a year for the years 2006, 2007 and 2008. The fees is payable by timber felling licence holders pursuant to schedule 3 of the Isabel Business Licence (Amendment) Ordinance 2003. Under that ordinance the licence holder must pay a fee of $100,000.00 a year, and the logging contractor, described in the ordinance as a subcontractor, is liable for an additional fee of $30,000 a year. The essence of the defence raised by the defendant is that whilst he acknowledges he was the licence holder, he assert a verbal agreement with his logging contractors, under which they agreed to pay all the business licence fees. Even accepting that that may well be an enforceable verbal agreement, it does not of course exonerate the defendant as the licence holder from his liability under the ordinance to pay the relevant fees. If his verbal agreement is enforceable then he would have a right of damages against his logging contractors for any amounts for which he is liable to the claimant. The defendant also seeks to join the logging contractors as parties to this proceeding. I am not prepared to grant leave that they be joined as the liability of the defendant to the plaintiff is clear. The defendant’s right of action against the logging contractors is a separate one and the claimant ought not to be disentitled from pursuing its remedies while that right of action for breach of contract proceeds. In short, because the defendant has been unable to demonstrate that he has a proper defence to the claim, I decline the application to set aside the default judgment. The claimant is entitled to costs on a standard basis.

BY THE COURT