Hue v Bochman [2016] SBHC 72; HCSI-CC 60 of 2016 (26 May 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 60 of 2016

BETWEEN:

JOHN HUE
Claimant

AND:

ROBERTUS BOCHMAN
First Defendant

AND:

RERE BOCHMAN
Second Defendant

Date of Hearing: 26 May 2016
Nemepo D, for the Claimant
Tagini M, for the 1st & 2nd Defendants

BROWN J:

RULING AND ORDERS

The application for default judgment has been filed in accordance with the Rules and Mr. Nemepo says quite correctly that the Defence (and Response) has been filed out of time.

It has been he says the practice of the court to accept an application for leave to file out of time supported by a statement presumably explaining the delay. Rule 5.37 states that the defendants defence must be filed and served within 14 days of the date of service of the claim, however a response need not be filed if the defendants defence was filed within that time.

The claim was served on the 24 February 2016.
The Response was filed on the 14 March, some 4 days late
The Defence and Counter claim was filed on the 8 April, well outside the 14 days allowed by the Rules.
An Amended Defence and Counter claim was filed on the 6 May.

By R.5.39, 5.40, late filing of a document after the time fixed is allowed and the court has a discretion whether to allow or not. The court by R 5.41 when deciding whether to accept a document or not in the proceedings;
“may have regard to

1. The reasons why the document was late filed and
2. Any additional expense or inconvenience incurred by the other parties to the proceedings (the claimant, here) and the disadvantage to the first party if the late filing is not allowed.”
   

No real explanation has been given for the delay. Mr. Tagini says, in so far as his Response claimed 28 days in which to file the defence, that misunderstanding of the rules contributed to the delay. It is not for counsel to claim time for filing in this fashion, rather counsel need comply with the rules and where delay has occurred, be prepared to satisfy the court in accordance with R 5.41 and seek the exercise of the courts discretion to allow late filing.

When I read the defence, however, it is clear serious issue are raised which call for this courts exercise of its discretion in terms of R5.42, for the defendants allege fraud on the part of the Claimant in having a lease-hold interest in two parcels of land in Honiara registered in his name when the defendants had furnished moneys in anticipation of having such interest transferred to them and in any event, while accepting the understanding, had expended moneys to develop the two blocks to which the Claimant now seeks vacant possession.

The inconvenience to the Claimant [since the Defendants appear to have been given possession lawfully by the Claimant originally by an understanding between them] would not, in my view, be as great as that affecting the Defendants if I was to grant judgment for possession and have them evicted from the property. The balance of convenience shifts in the defendant’s favour especially when fraud is alleged in the statement of facts filed in support of the defence, notwithstanding the strict onus of proof, which rests with the Defendants.

In my discretion I refuse orders for default judgment. In spite of Mr. Nemepo’s argument, I am not of the view that the rules dealing with late filing of documents in a case such as this, call for an application for leave but rather should be simply dealt with in terms of the rules set out above on the pleadings filed and any other material explaining delay.

Order:
The application for default judgment is refused.

In my discretion I allow the defence & subsequent amended defence and cross-claim filed to be effective for the proceedings.

The Claimant shall have his costs of the application for default judgment and today (since satisfactory explanation for delay is absence)

The proceedings shall proceed by way of directions in accordance with the document entitled “Directions” signed by me today.

THE COURT