Solomon Sheet Steel Ltd v Fiulaua [2013] SBHC 132; HCSI CC 56 of 2013 (12 September 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

SOLOMON SHEET STEEL LTD
Claimant

AND:

JACKSON FIULAUA (trading as JF Construction)
Defendant

Date of Hearing: 30 August 2013
Date of Judgment: 12 September 2013

Mr. C. Solosaia for the Defendant/Applicant.
Mr. W. Rano for the Claimant/Respondent.

RULING

Apaniai, PJ:

Introduction.

1. This is an application by Jackson Fiulaua, the defendant herein ("Applicant"), for an order to stay execution of an enforcement order made in connection with a default judgment obtained against him by Solomon Sheet Steel Ltd, the claimant herein ("Respondent"), on 23 May 2013. The judgment sum was $930,604.29.
   
2. Consequent upon obtaining the default judgment, the Respondent obtained an enforcement order against the Applicant on 31 July 2013 for failure by the Applicant to settle the judgment sum. The Applicant now comes to court seeking a stay of execution of the enforcement order.
   
3. The application is made under Rule 21.8 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules") which authorises an enforcement Respondent to apply to the court for an order suspending the enforcement order.
   
4. Where an application is made under Rule 21.8, the court has discretion under Rule 3.10 to suspend the enforcement of all, or part of, the order where facts have arisen or been discovered since the order was made or for such other reasons and to make other orders as it considers appropriate including another enforcement order.
   
5. In this case, the reason for the application to suspend the enforcement order is that the Applicant has applied to have the default judgment set aside. That application was filed on 6 August 2013 and was supported by a sworn statement by the Applicant also filed on the same date.
   
6. The Applicant also says that his solicitor had informed the Respondent's solicitor by letter dated 3 July 2013 about the pending application to set aside the default judgment and, therefore, as a matter of procedure, any intended enforcement action should be put on hold until the application to set aside has been determined.
   
7. With respect, that is not a correct proposition of law. An application to set aside a judgment does not operate as a stay of the judgment unless there is an order staying the execution of the judgment. To hold otherwise would run counter to the established principle that a successful party has a right to enjoy the fruits of his judgment[1].
   
8. The question, however, is whether the filing of the application to set aside the default judgment is sufficient reason to stay execution of the judgment?
   
9. It seems to me that to justify a stay of execution, the Applicant must show that the application to set aside the default judgment has a reasonable prospect of success. To have a reasonable prospect of success, the sworn statement supporting the application must show, amongst others, a prima facie defence which is viable and has some degree of conviction[2].
   
10. In the present case, the Applicant does not deny that he has owed money to the Respondent. He admits that he had been contracted by the Solomon Island Government ("SIG") to build houses for the School of Tourism & Hospitality at the Kukum Campus in Honiara and that he had taken materials from the Respondent to build those houses. He admits that he had not paid for all of the materials because the SIG had not yet paid him for his services. He said he will pay the Respondent when the SIG pays him. He says that he had already paid off some of the debts and he believed that the amount remaining is less than the judgment sum of $930,604.29.
    
11. Unfortunately, he has not stated in his sworn statement how much he still owes the Respondent. A bare statement of belief that the amount owed is "less than the judgment sum" would not be sufficient to justify disturbing a judgment. In that sense, the Applicant's sworn statement does not sufficiently disclose a viable defence.
    
12. Counsel for the applicant says from the bar table that the amount owed by the Applicant is $884,755.04 and not $930,604.29. Unfortunately, that cannot form part of the evidence. In the absence of proper evidence, I do not think the respondent should be deprived of the enjoyment of the fruit of his judgment.
    
13. Accordingly, this application is dismissed with costs against the Applicant to be taxed if not agreed.
    

THE COURT

James Apaniai
Puisne Judge

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^[1] Wells v Knott (1910) 20 Man. R 146; Kanna v National Fisheries Development Ltd [2001] SBHC 159; HCSI-CC 033 of 2000 & HCSI 055 of 1999 (18 January 2001).
^[2] Ross Mining (SI) Ltd & Others -v- Slater & Gordon & Others (Civil Case No. 230 of 1998).