Mekab v Kirunwai [2016] SBHC 52; HCSI-CC 233 of 2012 (4 May 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 233 of 2012

BETWEEN:

JAMES MEKAB, SERAH MEKAB, JEFFREY MEKAB
TREVOR MEKAB, CHRISTAR MEKAB & CHRISTINA MEKAB
- (Trading as “Good Luck International Agency)
Claimants

AND:

MURIEL KIRUNWAI
First Defendant

AND:

LUNINGNING GABRINO, FERNANDO AGUILAR
AND EDMUNDO MAYAMAYA
Second Defendants

Date of Hearing: 12th April 2016.
Date of Ruling: 4th May 2016.

Mr. D. Nimepo for the Claimant/Defendants in Counter Claim
Mr. P. Afeau for the Defendants/Claimants in Counter Claim.

KENIAPISIA; PJ:

RULING ON AN APPLICATION TO SET ASIDE DEFAULT JUDGMENT

1. Claimant filed a Category B Claim on 26/7/2012.The defendants filed their defence on 5/9/2012. In the same defence, the defendants also made a counter claim. The claimants are defendants to the counter claim. On 22/11/2013, the defendants applied for default judgment on their counter claim, because the defendants (claimants in initial claim) failed to file a defence to the counter claim. Default judgment was entered on the counter claim on 19/10/2015. This application filed 12/11/2015 seeks to set aside the default judgment (“judgment”).
   
2. In aiding use of my discretionary power to decide on this application to set aside judgment, I am guided by Rules 9.52 – 9.56. In applying to set aside judgment, the defendant ought to meet the requirements stipulated in Rule 9. 53 (a) – (d). The guidelines to aid the Court in deciding whether or not to set aside judgment are set out in Rule 9.54 (a) to (c) – that there must be a reasonable cause for the delay in filing a defence; that the defendant had a meritorious defence and that no substantial prejudice is caused to another party from setting aside, that could not be rectified by costs order.
   

Reasonable Cause for the Delay

3. I start by saying that the application to set aside judgment met the time frame in Rule 5. 3 (b), in that it was filed inside of the three months period of the judgment entry date. Judgment was entered on 19/10/2015. Application to set aside was filed 12/11/2015. The defendant in the counter claim therefore need not explain the delay in filing the application to set aside judgment because there was no delay. But the defendant in the counter claim must still explain why there was a delay in filing a defence, to the counter claim under Rule. 9.54 (a).
   
4. There is no evidence before me explaining the reasons for delay in filing a defence. The reasons advanced in written and oral submissions were that the Claimants (in initial claim) still have two outstanding applications that the Court is yet to deal with. The two pending applications are (i). Application for Urgent Inter-locutory Orders and (ii). Application for Leave to extend time to file a defence. Counsel Nimepo submitted that it was proper that the Court deals with their application for leave before dealing with the application for judgment on the defendants’ counter claim.
   
5. I set out the chronology of the case first.
   

Date	Events
26/7/2012	Claimant filed Category B Claim.
26/7/2012	Claimant simultaneously filed an urgent application to retrieve their properties.
26/7/2012	Other Court documents including a sworn statement by Serah Mekab also filed.
9/8/2012	Defendants filed Response.
5/9/2012	Defendants filed their defences and made a Counter-claim.
22/11/2013	Defendants apply for Default Judgment on their counter-claim.
27/5/2014	Claimants apply for leave to extend time to file defence to counter claim.
27/01/2015	Claimants filed a defence to the Counter-claim.
19/10/2015	Default Judgment granted to the defendants on their counter-claim.
12/11/2015	Defendants to the counter-claim (claimants in initial claim) filed an Application to set aside Judgment.
12/4/2016	Hearing of Application to set aside judgment.

6. Contrary to what Counsel Nimepo says in submissions, his initial application was actually listed for hearing on 20/2/2013. Counsel Nimepo did not turn up. Zama was in Court for him and asked for adjournment. Order for costs in the sum of $500 was made against claimants (in initial claim). At the hearing of defendant’s application for default judgment on the Counter-claim, on 25/11/2013, Counsel Nimepo was again not in Court. Second order for costs in the sum of $500.00 was made against counsel Nimepo personally. I heard submissions that those costs are yet to be settled.
   
7. I come back to the point that there is no explanation (evidence) for the delay in filing a defence. Defence and Counter-claim were filed on 5/9/2012. Service made in Court on Allan Hou on 6/9/2012, according to oral submissions by counsel Afeau. Counsel Nimepo denies receipt of defence and counter-claim. I found this denial strange. If counsel did not receive defence then he ought to have applied for default judgment on his client’s initial claim. Such application was due on the initial claim by Christmas of 2012, or New Year of 2013. The inference should be that he must have received the defendants’ defence. And should have also received the Counter-claim, both coming on one document only (defence). I am not convinced that there was reasonable cause for delay in filing a defence to the Counter Claim. This ground fails and will result in costs against claimants and their solicitor.

Is there a Meritorious Defence?

8. Meritorious defence has been defined in case law to mean whether: a triable issue^[1] is disclosed; whether there is a triable defence^[2]; or whether an arguable defence^[3] is shown. I had considered the draft defence at Exhibit SM1 of sworn statement by Serah Mekab filed on 12/11/2015. My view is that a triable defence, or arguable defence or triable issue is disclosed in the draft defence. The arguable defence briefly relates to the disparity^[4] in the amount each party claims, against the other. Defendants/Claimants in the counter-claim say the defendants/claimants in the initial claim owed them $34,300.00. The claimants in initial claim and defendants in Counter-claim deny and say that the correct amount owing to the claimants in Counter-claim is around $7,500.00, accounting for deductions of $12,500.00, made in respect of food and drinks consumed by Willie Aitorea. Additionally defendants deny the $34,500.00 because they did not agree to any rental increases. This is the meritorious defence that must go to proper testing at trial.
   

Prejudice to Another Party from Setting Aside Judgment

9. When I considered all the materials before me, I am also satisfied; there will be no prejudice from setting aside judgment. If there is prejudice, it can be mitigated by costs. Each of the parties, are losing out in the income they claim, they are entitled to from the other. The Claimants’ claims in the initial case is suffering from what I gathered to be inaction on the part of their solicitor. The same slack action has also affected the delay to the defendants’ case in the Counter-claim. Of course, part of the delay is the Court’s problem with lack of civil judges since 2012. Listings of small applications take long time.
   
10. The Orders of the Court are:
    
    • 10.1 Application to Set Aside Default Judgment by the Claimants in the initial claim, succeeds.
      
    • 10.2 The Claimants in the initial claim to pay $2,000.00 costs (inclusive of previous Court Order on costs) to the defendants.
      

10.3 Solicitor for the Claimants in the initial claim shall personally pay $2,000.00 (inclusive of previous court order on costs) to the defendants.

10.4 Costs must be settled in full by end of July 2016; in default of which the initial claim and defence to counter claim will be strike out.

10.5 The Claimants in initial claim shall file and serve their defence to Counter-claim in seven (7) days.

10.6 Leave is also granted for any consequential amendment to pleadings.

10.7 Trial is set for 1^st August 2016, at 9:30 am.

THE COURT

JOHN A. KENIAPISIA
PUISNE JUDGE

---

^[1] Kayuken –v- Harper (1987) SILR 54.
^[2] Dora –v- Walalau (2010); Unreported Civil Appeal Case No. 5/2010.
^[3] Kayuken case.
^[4] Disparity could be deduced from reading the initial claim; defence to initial claim; counter claim and draft defence to counter claim.