Qaqiri v Alai [2012] SBHC 39; HCSI-CC 412 of 2009 (9 May 2012)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 412 of 2009

BETWEEN:

LIVINGSTONE QAQIRI
Claimant

AND:

JOHN ALAI
Defendant

Date of Hearing: 22 February 2012
Date of Ruling: 9 May 2012

Mr. Pehu for the Claimant
Mr. Iroga for the Defendant

RULING

[1] This is an application by the Defendant filed on June 2011 for the following orders:

(1) That the default judgment entered on October 21 2010 be set aside;
(2) That the enforcement order filed on February 23 2011 be stayed upon the grounds stated in the sworn statement of John Alai;
(3) That the Applicant be allowed time to file a defence;
(4) That the Applicant be allowed time to sell the 10 tonne truck which the court intends to pay for the amount which is owning in these proceedings;
(5) Cost of this application be borne by the Applicant and
(6) Any further orders that the court deems fit to make.

Background

[2] The Claimant, Livingstone Qaqiri, was the previous owner of the Fixed Term Estate in Parcel Number 191-039-604 at Naha Height, in Honiara, on which he built a residential house. The Defendant rented the house from 1 January 2008 to early September 2009. The Defendant had rental arrears when he left the house in September 2009.

[3] The Claimant filed a claim to recover the rental arrears and costs from the Defendant on October 23 2009. The claim was served on Mr. Sale Bifa, other than the Defendant, on October 30 2009. On March 26 2010, the Claimant filed an application for default judgment against the Defendant for failing to file a response or defence to the claim. That application was heard on April 22 2010, but was dismissed by consent as it was not served on the Defendant. The Defendant was then personally served with a copy of the claim in the afternoon of that day.

[4] However, the Defendant failed to file either a response or defence to the claim. So, the Claimant filed an application for judgment on October 7 2010 and entered judgment against Defendant on October 21 2010 for the sum of $80,420.00 and costs. The Solicitor for the Claimant served the Solicitor for the Defendant with a sealed copy of the judgment before end of October 2010. The Defendant failed to settle the judgment debt and costs made against him. As a result of that, the Claimant obtained an enforcement order from the court and served it on the Defendant on February 23 2011, for the sum of $83,895.00 on February 23 2011. That sum is comprised of a debt of $80,420.00, a filing fee of $775.00 and costs of $2,700.00.

The Defendant's Case.

[5] The Defendant alleges that he is merely liable to pay the sum of $10,500.00 in rental arrears to the Claimant. And that he had reasons to believe that he and the Claimant could settle the claim out of court, so he did not file defence to the claim on time.

[6] The Claimant's case is that there is undue or unreasonable delay in filing application to set aside the judgment; that there is no draft defence filed by the Defendant; and that he would suffer prejudice not capable of being rectified by costs if the judgment entered against the Defendant is set aside.

The Rule under which judgment may be set aside.

[7] The court may set aside a default judgment under Rule 9.54 of the Solomon Islands Courts (Civil Procedure) Rules 2007, if it is satisfied that:

(a) The Defendant has shown reasonable cause for the delay in defending the claim; and

(b) The Defendant has a meritorious defence, either about his or her liability for the claim; and

(c) There is no substantial prejudice to another party in setting aside the judgment that could not be rectified by a costs order.

Draft defence

[8] The Defendant filed a draft defence with a further statement on 17 May 2011. In that defence, he says that he did not file defence on time because he had reasonable grounds to believe that he and the Claimant could settle the claim out of court. He denied being liable to pay the costs of $48,920.00. He also denies being liable for rental arrears of $31,500.00 but merely $10,500.00. And he denies being responsible for the payment of the Claimant's loan with the Solomon Islands National Provident Fund. The Defendant claims that he repaired the Claimant's house to the value of $19,500.00 and paid the sum of $1,500.00 as part settlement of the rental arrears. He says he is merely liable in rental arrears of $10,500.00 and the cost of this application. The Defendant had filed an earlier sworn statement on 29 April 2011 in support of his application.

Consideration

[9] There is delay between the entry of judgment and filing of the application to set aside the Judgment. The Defendant does not deny that. But he says that he held a belief that there were reasonable reasons to settle the claim out court. I infer from his draft defence and his sworn statement in support of his application that his reasons seem to point to his renovation of the Claimant's house worth at $19,500.00; the part payment of rental arrears in the sum of $1,500.00 paid directly into the Claimant's bank account; and his denial of liability for the sum of $48,920.00 for costs, which he contends to be incurred by the Claimant himself in pursuit of selling his land and the residential house on it. The Defendant was adamant that he is only liable to pay rental areas in the sum of $10,500.00 and the cost of this application.

[10] It is clear to the court that there are factual issues in dispute in this claim which require oral testimony to resolve. This court therefore holds the view that the Defendant has through his draft defence, a reasonable arguable defence to part of the Claimant's claim. The court will therefore set aside the judgment.

Order : 1. Default judgment entered on 21 October 2010 is set aside.

2. The enforcement order filed on 23 February 2012 is set aside.

3 The Defendant is to file a statement of defence within 14 days.

4. Any replies to be filed within 7 days thereafter.

5. Mutual disclosure 14 days thereafter after the close of pleadings.

6. The Applicant to pay the Respondent's cost of this application.

7. Matter to be mentioned at 9.30am on 25th June 2012.

THE COURT