ANZ Banking Group v Kaukui [2015] SBHC 35; HCSI-CC 91 of 2014 (6 May 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 91 of 2014

BETWEEN:

ANZ BAKING GROUP
Claimant

AND:

CHARLES KAUKUI
Defendant

Hearing Date: 27th March 2015
Date of Ruling: 6th May 2015.

Mr A. Radclyffe for the Claimant
Mr C.Hapa for the Defendant.

RULING ON APPLICATION TO SET ASIDE DEFAULT JUDGMENT

Faukona PJ: A claim in category A was filed by the Claimant on 25th March 2014 for outstanding loan, accrued interest and accrued fees. On 1st July 2014 the Registrar of High Court (Acting) granted order for default judgment and order for sale. The Registrar upon being satisfied that the services were effectively done grant the orders accordingly.

2. Further orders were made on 1st September 2014 for the sale of the FTE in PN 192-002-70 and for the Defendant or any other occupants to vacate the property with fourteen (14) days.

3. After being served with the orders and notice to vacate the Counsel for the Defendant filed on 17th October 2014, two applications; one to set aside default judgment and the other to stay execution of the judgment

4. The argument advance by the Counsel for the Defendant is premised on two grounds; one that the claim was never served on the Defendant and there is no proof of service. Upon those grounds the status of the default judgment is therefore irregular.

5. One of the instances of irregularities is spelled out in the case of Robert Goh (trusting as Goh and Partners) V LCL Enterprises Limited[1] cited with approval by Mwanesalua J in the case of ANZ Bank v Leonard Takisi and Upu Takisi,[2] that is when service of the writ was irregular.

6. Once irregularity is established the Court has no jurisdiction to refuse to set aside – see Ross Mining (SI) Ltd and Other V Slater and Gordon (A Firm) and Other[3]. The Court can only exercise discretion as to costs, see Anlaby V Praetorius[4] cited in CC No. 893 of 2009 above.

7. The Claimant's Counsel argues that the claim had been served upon the Defendant and there was proof of service by way of sworn statement deposed by Jack Sam.

8. I noted there is a sworn statement of proof of service filed, and that should do away with the second ground that footed both applications. There is further argument that the sworn statement containing proof of service does not actually show who did the service.

9. I have read the sworn statement and I am satisfied that there is no implication therein as to who actually serve the claim and response forms.

Second paragraph of the sworn statement generally says the two documents had been served upon the Defendant; the question is by whom? It could mean someone had served the document, if so that person ought to verify by way of a sworn statement and filed. Or it could mean the deposer Mr Sam had served the documents himself. Meantime no one can be truly verified. In the circumstances, I am not satisfied that service had been effectively done, hence irregularity is established. I must therefore set aside the default judgment and order stay of enforcement.

Orders:

1. Default judgment granted by this Court on 1st July 2014 set aside.

2. Grant order that execution of judgment be stayed.

3. Cost in the cause.

The Court.

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^[1] (Unreported) HCSI, Civil Case No. 138 of 1995 (9/10/1995)
^[2] (Unreported) HCSI, Civil Case No. 83 of 2009 (23/3/2012)
^[3] (Unreported) HCSI, Civil Case No. 230 of 1998 (23/3/2001)
^[4] (1888) 20 QB 764