Samoa National Provident Fund Board v Ridling [2009] WSSC 91 (21 September 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

SAMOA NATIONAL PROVIDENT FUND BOARD
a body corporate established pursuant to the National Provident Fund Act 1972
Plaintiff

AND:

TOOFIA RIDLING
Businesswoman, trading as Natural Health Products, Tanugamanono
Defendant

Counsels: K Drake for the plaintiff
P Fepuleai for the defendant

Hearing: 18 September 2009
Judgment: 21 September 2009

JUDGMENT OF THE COURT

This is an application by the defendant to set aside judgment obtained by formal proof by the plaintiff against her on the 16th April 2009 in the sum of $17,046.78 inclusive of costs.

History

1. The defendant was a tenant of the plaintiff in the plaintiffs food court complex since September 2004 at a monthly rent of $1,636.37 plus her share in the outgoings. Rent was increased to $1,950 per month on the 1st November 2004. She fell into arrears and was finally evicted in November 2007 for failing to settle her rental arrears.

2. By statement of claim dated 17th December 2007 the plaintiff sought to recover rental arrears totalling $16,752.28. In response the defendant through counsel filed a statement of Defence disputing the amount of rental arrears owing. She also counterclaimed for the value of her office equipments damaged by water which leaked through the roof of the plaintiffs building. Her claim for the damaged equipments which she claimed totalling $13,499 should be deducted from the rents alleged to be owing by her.

3. Hearing of the action was set for the week commencing the 25th August 2008 but at call overs on the 21st August the hearing date was vacated when defendant’s counsel advised the court that the defendant was in New Zealand. A new hearing date was then set for the week beginning the 13th April 2009.

4. On the 16th April 2009 counsel for the defendant was granted leave to withdraw as counsel on the ground that he has been unable to make contact with the defendant since her departure for New Zealand. On the same date judgment was entered by formal proof against the defendant.

5. By Judgment Summons dated 7th July 2009 the plaintiff moved to enforce judgment against the defendant by summoning the defendant to attend court on the 3rd August 2009 to show cause why she should not be committed to prison for failing to pay the judgment debt. Judgment summons were served on the 17th July and the present application to set aside judgment was promptly filed on the 31st July.

Application to set aside

6. Three principal grounds are advanced by the defendant to support her application;

(a) that she was not aware of the hearing date set for the week of 13 April 2009;

(b) she has a valid defence, and was entitled to a set off, and

(c) she is prepared to pay the full amount of the plaintiffs claim into Court until the matter is determined.

7. When the defendant left for New Zealand in 2008 she did not advise her solicitor but left instructions with her cousin who looked after her house to liase with her solicitor. Her counsel told the court that messages were left with the cousin. As a result of no responses from the defendant, her solicitor withdrew on the 16th April 2009.

8. If indeed messages from the defendant’s solicitor were left with the cousin then common sense would dictate that the defendant should have received those messages if the defendant did get in touch with her cousin to inquire about the status of the litigation. She knew of the first hearing date scheduled for August 2008 before she left for New Zealand so that naturally she would inquire of her cousin if the solicitor had advised of a new hearing date. Her efforts to shift the blame to her so called cousin cannot be accepted.

9. The defendant did promptly file a statement of defence and the plaintiff through the affidavits filed in response to the application by the defendant concedes that there was a leak in the roof of its building and water did drip into the defendant’s shop and office. Although the plaintiff maintains that the defendant’s equipments were not affected by the leak, such a dispute can only be resolved at a substantive hearing. The defendant has a meritorious defence or at least a defence worthy of investigation.

10. The first time the defendant knew of the judgment entered against her was when the judgment summons were served on her on the 17th July 2009. Her present application was filed 14 days later. Accordingly she has filed her application within the time stipulated by rule 141 (1) Supreme Court (Civil Procedure) Rules 1980.

11. The defendant has undertaken to pay into court the full judgment debt which in my view will not result in any irreparable harm to the plaintiff if the judgment is set aside and a rehearing is granted. See: Lauano v Samoa National Provident Fund (2009) WSCA 3 (unreported).

Orders

[1] Judgment is set aside and rehearing is granted on the following conditions:

(a) the defendant pays into the trust account of the Court or of the Ministry of Justice and Courts Administration the judgment debt of $17,711.88.

(b) the defendant pays to the Solicitors for the plaintiff the sum of $800 being the plaintiffs costs in these proceedings.

(c) both sums of monies to be paid by 12 noon 25th September 2009.

[2] This matter is to be listed for mention on the 28th September 2009 to set a hearing date or to dismiss the present application if the orders in 1 (a) (b) and (c) have not been complied with.

JUSTICE VAAI