Kontos v Laumae Kabini [2006] VUSC 45; Civil Case 110 of 2005 (15 May 2006)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No.110 of 2005

BETWEEN:

RICHARD ANTHONY KONTOS and GLORIA KOFFAL
Claimants

AND:

FELIX LAUMAE T. KABINI
Defendant

Mr. Silas Hakwa for the Claimants
Mr. Felix Laumae in person

DECISION ON WHETHER APPLICATION TO SET ASIDE DEFAULT JUDGMENT WAS FILED OUT OF TIME

1. During the hearing on 11 May 2006, a preliminary issue arose for determination of the Court that relates to timing of application to set aside a default judgment under the Rules.
   
2. Rule 9.2 (7) provides that "if the defendant does not apply within 28 days of service to have the judgment set aside under rule 9.5, the Claimant may:-
   
   • (a) file a sworn statement that the judgment was served on the defendant as required by part 5; and
     
   • (b) apply for an enforcement order."
     
3. Rule 9.5 is the provision that specifically addresses the issue of setting aside a default judgment. Under subrule (1) it states that:-
   

"A defendant against whom judgment has been signed under this Part may apply to the Court to have the judgment set aside." And subrule (2) (a) goes on to say that such an application "may be made at any time."

4. Mr. Hakwa has submitted that "at anytime" in Rule 9.5 (2) (a) means at any time within 28 days referred to in Rule 9.2 (7). But he also said that he is aware of the Court of Appeal decision in this area.
   
5. Mr. Laumae has submitted that the time frame in Rule 9.2 (7) relates to a claim for a fixed amount and further that such an application under that subrule is for the purpose of obtaining an enforcement order. Default judgment entered against him in this matter is a claim for damages and that falls under Rule 9.3. Further that the latest case of ANZ v. Dinh is authority for the proposition that an application under Rule 9.5 (1) and (2) can be made at any time.
   
6. I have had the opportunity to hear counsels and read the Court of Appeal Judgment in ANZ v. Dinh in Civil Appeal Case No. 27 of 2004, and the conclusion I have reached is one that favours the arguments put forward by the Defendant in this matter.
   
7. In Dinh’s case the default judgment was entered against Dinh in the amount of VT76,268,677 plus interests. The default judgment was entered on 28 April 2004 and was served on the Defendant on 12 May 2004. The application to have the default judgment set aside was outside the 28 days required under Rule 9.2 (7). The application was allowed. At page 5 of its decision the Court of Appeal said this:-
   

"The purpose of the rules is to further the administration of justice. The rules should not be applied so as to cause or perpetuate injustice."

8. It would be in the furtherance of justice, in my view, that the Defendant’s application be allowed and the Court can hear him out. Whether the Defendant satisfies the tests in rule 9.5 (3) is another matter. Further it is clear, in my view, that when applying to set aside a default judgment, the 28 days period in rule 9.2 (7) should not be a bar to such an application. That period is concerned with an application for an enforcement order.
   
9. For those reasons, I rule that the Defendant’s application to set aside the Default Judgment entered against him on 1 September 2005 is not out of time.
   

DATED at Port Vila, this 15th day of May 2006.

H. BULU
Judge.