Pacific Fusion (Trading as Water Lilly) v Solomon Islands Ports Authority [2018] SBHC 18; HCSI-CC 204 of 2017 (21 February 2018)

IN THE HIGH COURT OF SOLOMON ISLANDS
(KENIAPISIA; PJ)
CIVIL JURISDICTION
Civil Case Number 204 of 2017

BETWEEN: PACIFIC FUSION (TRADING AS WATER LILLY) - Claimant

AND: SOLOMON ISLANDS PORTS AUTHORITY - Defendant

Date of Hearing: 2^nd February 2018.
Date of Ruling: 21^st February 2018.

Mr. M. Tagini for the Claimant/Respondent.
Mrs. K. Ziru for the Defendant/Applicant.

KENIAPISIA; PJ:

RULING ON APPLICATION TO SET ASIDE DEFAULT JUDGMENT

Introduction

1. Category B claim was filed on 16/5/2017 and served the same day. By 1/9/2017, No Response or Defence was filed, prompting claimant to apply for default judgment on 1/9/2017. This was almost 4 months after service of claim. Default judgment was granted and perfected on 16/10/2017. Defendant filed a defence and counter claim, well out of time on 23/10/2017. Defendant subsequently apply to set aside default judgment on 17/11/2017.
   
2. At the outset claimant is prosecuting this claim with good speed. In determining whether or not to set aside the default judgment there are four considerations that the court will be satisfied with in law. Firstly whether the defendant can demonstrate a reasonable cause for the delay. Secondly whether the defendant has an arguable defence. Thirdly, what prejudice (if any) will be caused by setting aside default judgment. And lastly whether on the nature of this claim, the matter should proceed to trial or terminate early through default judgment.
   

Reasonable Cause for Delay

3. Applicant’s counsel submitted that the delay was mainly because the defendant had difficulty locating important documents (receipts, invoices, payment vouches etc) to defend the claim. Secondly that the defendant was trying to negotiate with the claimant on non-payment of rentals^[1]. All these, the defendant say needed time. Court is satisfied with these explanations for the delay; noting that this claim includes issues such as rentals, rental deductions and rental increases and payments for food claimant supplied to defendant’s 200 or so employees. It involves reconciliation and offsetting of payments for food and rentals. For the claimant pleaded at paragraph 6, that, the defendant without the claimant’s consent deducted 3 months’ worth of monthly rentals from the defendant’s payment vouchers.
   

Arguable defence

4. Apparently in the defence filed out of time, triable or arguable defence is disclosed. Arguable defence relates to absence of written contract and increase of rentals and or non-payment of rentals. And in the counter claim are further arguable issues for trial like negligence, harm and compensation for supply of food by claimant causing illness to defendant employees. Arguable defence is merely about whether triable issues are disclosed in defence not about the strength or weakness of the defence.
   

Prejudice

5. I am satisfied on the filing of further sworn statements by 6/02/2018, that prejudice is been caused to the claimant from setting aside default judgment, because defendant has locked up the restaurant. I will therefore address that by appropriate restraining orders.
   

Defence and Counter Claim declared effectual

6. As to the defence and counter claim filed out of time; I hereby declare them effectual. Rule 1.17 (d), provides that 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 and counter claim filed late, against compliance with timing under the Rules, is effectual.
   
7. Accordingly the orders of the Court are:
   

7.1. Default Judgment is set aside.

7.2. Defence and Counter claim filed late is declared effectual.

7.3. Cost of default judgment application and setting aside application against the defendant on standard basis.

7.4. Defence and Counter Claim declared effectual. Pleadings to close.

7.5. After closure of pleadings counsels to file consent trial preparation directions.

7.6. Defendant to open the locked up restaurant to the claimant.

7.8. When trial preparation directions are complete, matter be restored on 3 days’ notice.

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Pleaded in the defense filed out of time at paragraphs 5, 6 and 7.