John Wesley Timbers Ltd v Sasau [2009] SBHC 60; HCSI-CC 160 of 2008 (25 November 2009)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

JOHN WESLEY TIMBERS LIMITED
Claimant

AND:

CLIFF SASAU AND LUDDINGTON BAREKE
Defendants

Date of Hearing: 17 September 2009
Date of Decision: 25 November 2009

Mr. Apaniai for Claimant
Mr. Saramo for Defendants

DECISION ON APPLICATION FOR DEFAULT JUDGMENT

Cameron PJ:

1. The claimant applies for judgment by default on the grounds that the defendants, while having filed a response to the claim, have failed to file any defence.

2. The defendants’ advocate contends in written submissions that the application is not accompanied by a statement of case setting out the legal justification for entry of judgment by default, and merely relies on previous sworn statements filed in this claim. In other words, because the application does not specifically incorporate a statement of case referring to the fact that no defence has been filed within the time permitted (which provides the justification for entering judgment by default under rule 9.17 of the Rules), and has no accompanying sworn statement supporting the application, the contention is that it be dismissed.

3. While the application ought to have referred to the rule upon which it relies, this is an irregularity only and does not of itself mean that the application ought to be dismissed. The fact that it has its basis the failure by the defendants to file a defence is common ground, and the application itself on its face seeks "judgment in default of defence". Also, a fresh sworn statement would have simply drawn to the Court’s attention the failure to file a defence, a fact readily discernible from an examination of the file.

4. Further, no excuse at all has been offered on behalf of the defendants for failing to file a statement of defence, and no application for leave to extend time for the filing of a statement of defence has been made.

5. A further argument offered on behalf of the defendants is that the original claim is defective in that it fails to disclose a cause of action. I agree that the statement of case does not identify the principle of law on which the claimant relies (it does not specify, for instance, whether the claim is in contract or in tort, or both), which is a requirement under rule 5.3(c) of the Rules. Nevertheless the facts pleaded show that the defendants are alleged to have converted 41 cubic metres of the claimant’s timber by persistently refusing the claimant access to its own timber stored in the yard of the defendants. A claim for the value of the timber (allegedly $80,800) is therefore included.

6. I consider that the claim does disclose facts which if true establish a cause of action in conversion.

7. I enter judgment in default against the defendants for damages in the sum of SBD $80,800, and order that interest is payable at the rate of 5 per cent per annum on the amount of the judgment sum that is unpaid on and after judgment.

8. The basis for the additional claim in damages for $51,000 is unclear, and I decline to award such sum.

9. Costs including filing fees are awarded against the defendant on a standard basis, such figure to be agreed or failing agreement to be taxed.

BY THE COURT

Justice IDR Cameron
Puisne Judge