F & R Welding Works v Kee [2013] SBHC 75; HCSI-CC 28 of 2011 (2 July 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 28 of 2011

BETWEEN:

F & R WELDING WORKS
Applicant/Defendant

AND:

KIM DURK KEE
Respondent/Claimant

Date of Ruling: 2 July 2013

Mr. M. Hauri'i for the Applicant
Mr. A Radclyffe for the Respondent

RULING

[1] This is an application by the Defendant filed on 11 September 2012 for the following relief: (1) An order for leave to set aside orders entered against him that were sealed and perfected on 21 August 2012; (b) An order for leave for the matter to be reinstated for normal court proceeding; (c) such further order and/or other relief the court deem just and (d) that the Applicant prays that the reliefs sought herein be granted.

[2] The claim in this case was filed by Claimant on 8 February 2011 and was served on the Defendant. The Defendant failed to file defence within the relevant period and the Claimant filed an application for default judgment on 24 June 2011, which was set down for hearing on 21 July 2011. Both parties appeared with their respective legal representatives on that date. But the case was adjourned for counsel for the Defendant to obtain further instructions from his client. On 27 July 2011, the Defendant filed defence and counter claim. The Claimant filed reply on 8 August 2011. Both parties filed their respective lists of documents and direction orders were filed on 11 November 2011. The parties have also filed their sworn statements. The claim was set for trial on 20 July 2012 but the trial could not proceed because the Defendant's then was not present and was no longer able to practice before the court on that date. The case was then adjourned to 21 August with new counsel for the Defendant on hand. However, on 21 August 2011 the counsel who should represent the Defendant failed to appear in court. There was no notice of change of Counsel filed in court. The Counsel for the Claimant accordingly sought judgment, which was granted by the court.

[3] Counsel for the Claimant came to court prepared for the trial. The Court was likewise prepared for the trial. However, Counsel for the Defendant did not attend court and so as a result Counsel for the Claimant made an application for judgment to be entered against the Defendant. Counsel for the Claimant tendered an order comprising the relief sought in the claim and the court entered judgment for the Claimant. The view of this court is that this is not a default judgment obtained for failing to comply with a step in the proceeding, which may be set aside by a subsequent application. This is a final judgment obtained by the Claimant for failure of counsel for the defendant to attend the trial as provided for under chapter 12 of the Civil Procedure Rules 2007.

[4] In the circumstance, this application is refused and is accordingly dismissed. The Defendant is to pay the Claimant's cost of this application

ORDER: 1. Defendant's application to set aside judgment is refused.

2. Defendant is to pay the Claimant's cost of this application.

3. Judgment entered on 21 August 2012 to remain as the final Judgment.

THE COURT