Eruiti Island Village Ltd v Traverso [2009] VUSC 9; Civil Case 222 of 2005 (18 March 2009)

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

Civil Case No. 222 of 2005

BETWEEN:

ERUITI ISLAND VILLAGE LTD
Claimant

AND:

THERESE TRAVERSO, JOEL KALTAMAT and MORRISON FELIX
Defendants

Coram: Justice N. R. DAWSON

Date of Hearing: 18th March, 2009
Date of Decision: 18th March, 2009

Counsel: Claimant: Mr. Kilu
Defendant: Mr. Morrison

DECISION

1. Today was set down as a hearing date to deal with the Claimant’s Application for Leave to Appeal Out of Time and an Application by the Defendant to Set Aside a Default Judgment of the Magistrate’s Court dated the 24th January, 2007. The Court has been advised this morning by both counsel that the matter relating to the Application to Appeal Out of Time has been resolved in that costs owing to the Claimant either have or immediately will be paid and that matter can therefore be dismissed. The Application to Appeal Out of Time is dismissed accordingly.
   
2. Court has had a hearing this morning concerning the Application to Set Aside the Default Judgment. The application is made pursuant to the Civil Procedure Rule 9.5 (2) which states:
   

"The application:

a) May be made at any time; and

b) Must set out the reasons why the defendant did not defend the claim; and

c) Must give details of the defendant’s defence to the Claim; and

d) Must have with it a Sworn Statement in Support of the application; and

e) Must be in Form 14."

This application was made on the 16th December, 2008.

3. The Court is informed that the reason why the Defendant did not defend the claim is that throughout these proceedings, which have been filed both in the Magistrate’s Court and the Supreme Court and were to be consolidated to the Supreme Court, counsel for Mrs. Traverso had advised counsel for the Claimant throughout that when both matters were before the Supreme Court then a statement of defence would be filed accordingly. For a number of reasons, these matters were not brought on before the Supreme Court in a timely manner. Also counsel for Mrs. Traverso advises that at no time were he or his client ever informed or served with the Notice of the Application for a Default Judgment. Counsel for Mrs. Traverso advises that the first he was made aware that a Default Judgment had been entered was on 28th November, 2008 when leaving Court he was provided a photocopy of the order by counsel for the Claimant. Counsel for Mrs. Traverso also advises the Court that the detail of the Defendant’s defence to the claim is simply that Mrs. Traverso alleges that she was not present at the time of the alleged confrontation between agents of the Claimant and the remaining two Defendants and has no knowledge of this confrontation. The Court is advised that Mrs. Traverso’s defence is that she was not there, she was not a party to the matter and she should be dismissed from the Claim. Sworn Statements have been filed in support of this Application and the Application is made in its proper form.
   
4. It is argued for the Claimant that when making an Application to Set Aside a Default Judgment a draft Statement of Defence should be filed with that application, and that is what normally happens in this Court. The Rules did not require that to happen and counsel for Mrs. Traverso has advised the Court of the details of her defence which are of a very simple nature. Rule 9.5 (2) (c) has been complied with in terms of the rules.
   
5. It also argued for the Claimant that he has had Default Judgment for a considerable period of time and is entitled to the fruits of this judgment. However it must be noted that Mrs. Traverso has only been aware of the Application for Default Judgment and the granting of that Default Judgment through her counsel since 28th November, 2008 and the Application to Set Aside Default Judgment was filed in a relatively short period of time after becoming aware of that Default Judgment. Counsel for Mrs. Traverso would not been in a position to file an Application to Set Aside Default Judgment any sooner.
   
6. It is also submitted by the Claimant that the other two defendants were employees of Mrs. Traverso. Nowhere in the Supreme Court Claim or other papers before the Court is that alleged by the Claimant. In any event the view of this Court is that this is a matter which goes to the substance of the claim and does not affect the Application to Set Aside the Default Judgment. The Application to Set Aside the Default Judgment has been properly made by Mrs. Traverso through counsel and the justice of matter requires that the Application be granted, and an Order is therefore made to Set Aside the Default Judgment entered on 24th January, 2007. That setting aside of Default Judgment applies to Mrs. Traverso only. Neither of the other two Defendants have appeared before the Court today and therefore the Default Judgment remains in place against those two Defendants.
   
7. Costs will be in the cause. This matter will now go through to a conference at 2 pm on 20th May, 2009.
   

Dated at Port Vila, this 18th day of March, 2009

BY THE COURT

N. R. DAWSON
Judge