Gamana (Qamana) Clan v Treasury Timber Ltd [2017] SBHC 136; HCSI-CC 500 of 2016 (5 April 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case Number 500 of 2016

BETWEEN: GAMANA (QAMANA) CLAN, KOBONGAVA BERE TRIBE - Claimant

AND: TREASURY TIMBER LIMITED - Defendant

Date of Hearing: 14^th March 2017.
Date of Ruling: 5^th April 2017.

Mr. H. Fugui for the Claimant.
Mr. W. Togamae for the Defendant.

KENIAPISIA; PJ:

RULING ON AN APPLICATION FOR DEFAULT JUDGMENT

Introduction and Background

1. Claimant filed application for default judgment on 2/2/2017, following the Category B claim, filed on 17/11/2016. The application was in order, because the defendant failed to defend the claim in the time required by the Rules.
2. Claim was filed on 17/11/16. Served on 17/11/16. First Response filed on 29/11/16. Second Response filed on 30/11/16. First Response dispute part of the claim. Second Response dispute all of the claim. The defence filed late on 3/2/2017, is consistent with the first Response.
3. Defence was filed 3/2/2017, very late, even if one has to take away the period from 14^th December 2016 to 14^th January 2017, under Rule 26.5. Defence was late more than a month, counting from 14^th January 2017. The defence was filed, late, without leave, as the Rules would normally require. So a relevant issue is whether the late filed defence is effectual or not effectual, under the Rules?

Reasonable Delay

4. First consideration on an application for default judgment is whether there was reasonable cause for the delay in filing a defence. Defence filed late had no explanation from the statement of Ting Minghee relied on by defendant’s counsel or other statements used by defendant. Counsel Togamae only submitted from Bar Table that, late receipt of documents was the reason for late filing. Counsel said in oral submission that this claim is about disclosing documents on royalty. And those documents were furnished late to counsel’s office. Upon perusal of documents, the claim or good part of it was admitted. And so counsel submitted, through sworn statements relied on, defendant had disclosed all documentations on royalty that claimant was asking about in his claim. In view of defendant partly admitting the claim, the claimant should amend the claim to deal with the disputed part of the claim only. This will make the claim clearer, in view of disclosed documentation and partial admittance of the claim.
5. Court had taken time to examine the disclosed documents on royalty payment. It was obvious that a lot of advances were made in the name of Enoch – the claimant herein. Whilst his claim is about non-receipt of royalty, his advance records, showed, he received huge sums of money. Now that the picture on royalty claim is emerging, court consider that more than a month delay is not too unreasonable.

Arguable Defence

6. Next pertinent consideration is arguable defence. But arguable defence can only be considered, if court first deal with the effectualness or otherwise of the late filed defence. The relevant Rules are Rule 1.17 (d), Rule 6.25, Rule 6.26 and Rule 6.27. Court start first with Rule 1.3, which says, the main objective of the Rule is to enable courts to deal with cases justly with minimum delay and expenses. Court already considered above that filing of a defence late by more than a month is a reasonable delay. That is also like saying this court feels in the circumstances, that the case is progressing with minimal delay.
7. Rule 1.17 (d), when there is failure to comply with the Rules, the Court may declare a document or step taken to be effectual, because Rule 1.16 says that failure to comply with the Rules is an irregularity only and does not make a proceeding or a document, step taken... in a proceeding a nullity. Therefore in the interest of justice, court dispense, with full compliance with the Rules (Rule 1.14) and declare that the defence filed late, against compliance with the timing under the Rules, is effectual.
8. The next pertinent question is, whether there is an arguable defence. To the extent that the defendant had partly admitted the claim and materials disclosed will half solve the claim, court consider that there is an arguable defence.

Nature of this claim

9. Lastly court will consider whether in view of this claim, court should grant default judgment or allow the case to proceed to full trial? In determining whether or not to grant default judgment, court must have regard to the nature of the claim^[1].
10. This case is about non-payment of royalty in the main. Claim is partly admitted. Evidence emerging is showing that claimant has advanced huge sums of money and defendant had off-set against royalty, that claimant is entitled to. Is this true? If true, had claimant benefited personally or shared with his tribal members, being a trustee only. These issues make this claim special and ought to be tested at trial. Evidence is also emerging that this claim is not supported by other trustees, or the claimant’s tribe (Mr. Enoch’s tribe). This issue must go to trial or addressed in the interim as the Rules provide for in 3.42.

11. Accordingly the orders of the court are:-

11.1 Application for default judgment refused.

11.2 Defendant’s defence filed out of time is hereby declared effectual.

11.3 Case to progress to trial with leave to amend pleadings granted.

11.4 Cost against defendant.

11.5 Pleadings to close as soon as practicable.

THE COURT

JOHN A KENIAPISIA
PUISNE JUDG

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^[1] Sukumaran and Others –v- Pillai and Others cc 396 of 2012 by Apaniai J.