Ewers v Sanau [2013] SBHC 172; HCSI-CC307 of 2012 (27 December 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

Civil Case 307 of 2012

BETWEEN:

CRAIG EWERS and PRIMULA SIPOLO
Claimants

AND:

ALICK SANAU and MAGARINA SIMI
Defendants

Mr. P. Afeau for the Claimants.
Mr. S. Balea for the Defendants.

Date of hearing: 18th November 2013
Date of Judgment: 27th December 2013

RULING

Apaniai, PJ:

Introduction.

1. There are two applications before the court. The first application was filed by the Claimants on 30 July 2013 seeking judgment in default of defence. The second application was filed on 23 August 2013 by the Defendants seeking extension of time to file defence.
   
2. I heard both applications on 18 November 2013. At the close of submissions, I rejected the Defendants' application for extension of time to file defence and granted the application by the Claimants for default judgment. I said I would give reasons later. These are the reasons.
   

Application to extend time to file defence.

3. The Claim was filed on 15 November 2012. There is no proof of service to indicate the exact date the claim was served on the Defendants, however, ASG Lawyers has filed a response on behalf of the Defendants on 18 February 2012, indicating that the Defendants must have been served with the claim on or before 18 February 2012. Since filing the response no defence has yet been filed. They have now filed an application to extend the time to file defence. Obviously, this was done as a result of the Defendants having been served with the application for default judgment.
   
4. Assuming that 18 February 2012 was the date of service of the claim, the Defendants should have filed their defence by 18 March 2012. They have not done so. Up to the time of filing the application to extend time, they were late by 18 months. So the question is whether a delay of 18 months is acceptable.
   

Power to extend time.

5. Rule 26.6 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules") provides that a court or judge may by order extend or abridge any time fixed by the Rules or by any judgment or order. Whether or not to extend or abridge time is a matter for the discretion of the court.
   
6. But the court cannot exercise that discretion in a vacuum. There must be evidence upon which the court can exercise its discretion. The evidence must explain why defence has not been filed within the time set by the Rules and whether the Defendant has an arguable case. It is not in the interest of justice that the court should waste its time hearing a case which has no hope of success or where the Defendants' failure to file defence is deliberate and contumelious.
   
7. In Samlimsan v Tarihao[1], the Court of Appeal said at paragraph 12:
   

"It has long been accepted that the court will not grant extension of time as a matter of course. The burden is on the applicant to satisfy the court that there is good reason for the delay and for any consequential extension of time and, in determining that, the court will always consider whether there is arguable merit in the proposed grounds of appeal."

8. At paragraphs 14 and 15, the court further said:
   

"[14] ... the introduction of the new Solomon Island Civil Procedure Rules in 2007 heralded a fundamental change in the court's attitude to delay in court proceedings.

[15] Parties in civil claims should be entitled to expect that the case will proceed with reasonable expedition. All lawyers must appreciate that it is their responsibility to ensure that they and their clients comply promptly with all procedural requirements and, in particular, any orders by the court. Failure to do so is likely to result in orders for the strict application of the new Rules."

9. These statements were made in relation to an application for extension of time to appeal, but in my view, they apply equally, as here, to an application for extension of time to file pleadings.
   

Reasons for delay.

10. Mr. Alick Sanau ("Mr. Sanau") has filed a sworn statement on 23 August 2013 in support of the application to extend time explaining the reasons why no defence has been filed. The reasons are contained in paragraphs 5, 7 and 8 of his sworn statement.
    
11. In paragraph 5, Mr. Sanau says that the delay was caused by the difficulty in obtaining instructions from the second-named Defendant, Magarina Simi. In paragraph 7, he says that Magarina is his former wife and that since the breakdown of their marriage, they both have remarried, hence, the difficulty in coming together to give instructions to their lawyers. In paragraph 8, he says that he and Magarina had made attempts to meet and discuss the claim but due to their previous relationship and their remarriage, they were unable to come together. In short, the reason for their failure to file defence in time was their difficulty in coming together to give instructions.
    
12. I must confess that I find this explanation beyond belief and totally unacceptable. First, even though Magarina was not willing to co-operate as he claims, Mr. Sanau himself was available to give instructions. He could have filed his defence earlier without having to wait for Magarina.
    
13. Secondly, if what Mr. Sanau says in his draft defence (marked as "Exhibit AS" in his sworn statement) is in fact what really happened, Mr. Sanau himself could have given instructions on behalf of both himself and Magarina in relation to the claim. After all, the claim is one, which arose out of an alleged transaction involving properties jointly owned by both of them. I am sure they are both aware of what happened which led to the filing of this claim.
    
14. Thirdly, to take 18 months for Mr. Sanau to try and convince Magarina to see ASG Lawyers to give instructions is beyond belief.
    
15. I do not believe Mr. Sanau's explanation for the delay in filing defence and I reject that explanation. I am satisfied the delay was deliberate and contumelious. They filed this application only after been served with the application for default judgment. This is abuse of process. They now come to court asking the court to exercise its discretion in their favour despite their conduct. That cannot be done.
    

Arguable defence.

16. In any event, I do not think the Defendants have any arguable defence to this claim. The draft defence filed by Mr. Sanau does not have any arguable merit in the light of the Claimants' statement of the case coupled with the sworn statement by Primula Sipolo.
    
17. The draft defence, in most instances, did nothing more than make general denials of the assertions in the Claimants' statement of the case. Those denials do not hold water in the face of the evidence produced by the sworn statement by Sipolo.
    
18. For instance, paragraph 9 of the Claimants' statement of the case alleged that the Claimants had obtained a loan from ANZ Bank in connection with the proposed purchase of the Properties by the Claimants and that the bank had disbursed the loan proceeds which included a transfer into Mr. Sanau's ANZ Bank account No. 4099801 of the sum of $32,116.69 and a further transfer into Magarina's ANZ Bank account No. 64633 of the sum of $33,694.69. These were confirmed by Sipolo in her sworn statement. In his proposed defence to paragraph 9 of the claim, Mr. Sanau simply denied knowing about those allegations. In his sworn statement filed on 23 August 2013, that is 24 days after the filing of Sipolo's sworn statement, Mr. Sanau said nothing in response to the clear and damning evidence produced against them by Sipolo. At paragraph 12 of his sworn statement, Mr. Sanau simply says that he believed he had a good defence to the Claimants' claim.
    
19. I do not agree with Mr. Sanau that he and Magarina have any good defence to the claim. I am satisfied that Mr. Sanau was not genuine in his defence and I do not think his defence has any merit at all. The opportunity to defend is given only to those who raise arguable defences. I therefore refuse to grant extension of time to file defence.
    

Application to enter default judgment.

20. For the reasons stated above and in the light of the evidence contained in the sworn statement by Primula Sipolo filed on 30 July 2013, I am satisfied judgment should be granted in favour of the Claimants.
    

Orders.

21. The orders of the court are:-
    

[1] Grant order for specific performance of the agreement between the Claimants and the Defendants for the sale to the Claimants of Parcel No. 191-013-160 and Parcel No. 191-013-177.

[2] Order that the title to Parcel No. 191-013-160 and Parcel No. 191-013-177 be transferred to the Claimants and that the Registrar sign the transfer documents on behalf of the Defendants.

[3] Order that the Defendants pay the costs of the Claimants on standard basis to be assessed if not agreed.

THE COURT

James Apaniai
Puisne Judge

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^[1] Civil Appeal No. 58 of 2011, at p. 4.