JUDGMENT
(Kabui, J):
The Plff in this case is the Deve Development Bank of Solomon Islands (the
DBSI). The Plaintiff claims that the Defendant
owes it the sum of
$371,771.69 plus 14% interest and demands immediate payment of this sum plus
interest. The Writ of
Summons filed on 5th October 1999 was served upon the
Defendant on 13th October 1999 at Honiara. By Notice of Motion
filed on 16th December 1999, the Plaintiff applied for an order that a
judgment
in default of appearance be entered against the Defendant for the
sum claimed plus interest. The Plaintiff�s Notice of Motion
was adjourned by
Awich, J. on 16th December 1999 due to non-service upon the
Defendant. The Plaintiff's Notice of Motion was heard by me on 2nd
March 2000. Mr. Teutao on behalf of the Defendant appeared in Court and
sought a further adjournment on the ground that
the matter could be settled
out of Court. I adjourned the hearing accordingly there being no objection
from the Plaintiff
and ordered that the cost be in the cause.
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The Plaintiffs Notice of Motion
came upn before me on 4th September 2000. Again, Mr. Ter. Teutao
told me that there was a real possibility that the Plaintiff's claim would
be
settled. He said the Defendant had a claim against the Government for $4
millions and if Government paid the Defendant, he
would settle the
Plaintiff's claim without much difficulty. The Plaintiffs Counsel, Mr.
Hauirae, again did not object
to an adjournment sought by Mr. Teutao on this
basis. I therefore adjourned the hearing to allow the Defendant to sort out
his debt with the Plaintiff. Apparently, the Defendant had not settled the
Plaintiffs credit against him. The Plaintiff
is now back in Court asking the
Court to enter judgment against the Defendant.
Facts
<
By a written agreement, the
Plaintiff on or about 26th September 1994, disbursed to the
Defendant the sum of $263,000 as loan funds to the Defendant. The repayment
instalment
was $4,850.00 per month. The interest rate was 14% per annum. As
security for the repayment of the loan, the Plaintiff created
a charge over
parcel 191-033-47 in favour of itself. The Defendant has failed to repay the
loan since 21st February 1994. The arrears outstanding as at 31st
July 1999 stood at $213,400. The principal loan balance as at that same date
stood at $158,371.69. The told outstanding
claim being $371,771.69.
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The Relief Sought
>
By the tid date the
Defendant appeared in Court by his Counsel, Mr. Teutao, the Defendant had had
long been out of time
to enter appearance. That is to say, Mr. Teutao
appeared in Court, 5 months after the Plaintiff filed its Writ of Summons.
At no time, had the Defendant or Mr. Teutao entered a formal appearance
prior to the date of hearing of the Plaintiffs
Notice of Motion on 2nd
March 2000. There was no reason why the Plaintiff should not press for a
judgment in default of appearance at that hearing.
Mr. Teutao had appeared
too late for the Defendant. The Plaintiff's Counsel, Mr. Hauirae, however
was most accommodating
and being convinced that the Defendant would pay,
agreed to the second adjournment. He did the same for the third adjournment.
By 27th November 2000, he realized that the prospect of settling the debt
was becoming remote. He therefore wrote a letter
of that date to the
Registrar requesting the Registrar to fix a date for the hearing the
Plaintiffs Notice of Motion.
The next hearing date was yesterday 15th
January 2001 at 9:30 a.m. before me. The Defendant failed to appear in Court
though his wife was served with the Notice of Hearing at the Defendants
residence in Honiara on 12th January 2001. The Defendant had
contacted Mr. Teutao who was then already an employee of the Government. Mr.
Teutao did
not appear in Court to explain his position but told Mr. Hauirae
to tell me that being an employee of the Government, he could
no longer act
for the Defendant. The Defendant chose not to come to Court. No defence has
ever been filed by the Defendant
in this case.
I am therefore of the opinion
t there being no appearance entered by the Defendant in then the first place
within 14 days
after service of the Writ of Summons, the Defendant is
entitled to a judgment in default of appearance. The appearance of Mr.
Teutao on 2nd March 2000 was unprocedural and well out of time.
The Plaintiff is therefore entitled to the relief sought in its Notice of
Motion filed 16th December 1999. The Plaintiff's application is
therefore granted with costs. I order accordingly.
F. O. Kabui
Judge
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