HIGH
RT OF SOLOMON ISLANDS
Civil
Case No. 042 of 2001
FT ENTERPRISES (SI) LTD
v
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MARTIN TSUKI
High
Court of Solomon Islands
Before:
Frank O. Kabui, J
Civil
Case No: 042 of 2001
Hearing:
24th August 2001
Ruling:
28th August 2001
<
Mrs. M.
Samuel for the Plaintiff
Mr. C.
Ashley for Defendant
RULING
(,
J.):
By Notice of Motion , the Plaintiff seeks the following orders-
1.
&nnbsp;;&nspp;nbsp;nbsp; Thp; That the Judgment in Default of Compliance dated 1st
August, 2001 to be set aside upon the grounds set forth in the Affidavit in
Support by Peter Zheng.
2.
& p; &nsp; &nsp; That the timuireq to file Rile Reply to Defence and Defence to
Counter claim under the Order
by Consent dated 9th
3.
&nbbsp;& &bsp;&bsp;&nbp; That the tiff lo allowed toed to file their Reply to Defence and
Defence to Counter-claim
upon the Court�s order to set aside.
1">
1.
&nbssp;&nnbsp;&nsp;&nsp;&nbp; The Piffs and Stnd Statementement of Claim is struck out; and
2. &nnsp;&&nsp;;&nspp;&nssp;&nsp;   /span>The Defendafendant be entitled to judgment on the Counter Claim filed on
thep;30
>
<
3. p;&nssp; p; &nbp; &nbp; ;&nbpp;That the Plai Plaintiff to pay the Defendant costs of proceedings to be
taxed if not agreed.
1">
The
default judgment and its terms were the result of non-compliance by t by the
plaintiff with the terms of a consent
order agreed by the parties and
endorsed by this Court on 9th July 2001. The terms of the consent
orders are these-
1. &bsp; &nbap;The proceeds of the sthe sale as ordered by the Court on 21st
March 2001 be paid into a IBD Account in the name of the parties solicitors
; and
2.
&nnbsp; &nsp; &nbap;Thle unthes laintiff tiff within 14 days file its Reply to
Defence and Defence to Counter-Claim,
that is Writ and ment aim
will ruck and
>
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3.
p; &nbp;&nbp; That osts of thl applicatiocation be in the cause.
The
effect of the judgment in default is that the Plaintiffs action was struck
out and the Defence succeeded against the
Plaintiff on his counter-claim.
The
Facts
<
By Writ
Summons filed on 21st March 2001, the Plaintiff tiff claimed
certain orders against the Defendant. By Order obtained ex parte on that same
day, the Defendant was restrained from shipping or removing two containers
of timber which timber was the property of the Plaintiff.
By that same
Order, the Plaintiff was allowed to take possession of the said two
containers and was at liberty to export
or sell them. However, the proceeds
of such sale was ordered to be deposited in the bank in the Solicitor's
name. A Memorandum
of Appearance was entered on behalf of the Defendant on 2nd
May 2001. Defence and a Counter claim were filed on 4th May 2001.
A and A Legal Services became the Defendant�s new Solicitor on 7th
June 2001. A fresh Memorandum was entered on 23rd May 2001. A
fresh Defence and counter-claim were also filed on 30th May 2001.
By Summons filed on 20th June 2001, the Defendant sought Orders
to effect the transfer of proceeds of sale of timber as ordered by the Court
on
21st March 2001 to an interest bearing deposit account in the
names of the parties� Solicitors. The Defendant also asked the Court
to
order an account within 7 days of monies received from the sale of 11
containers to date and that unless he Plaintiff
filed its reply to Defence
and a Defence to counter-claim within 7 days, the Plaintiffs Writ of Summons
and Statement
of Claim be struck out. At the hearing of the Summons on 5th
July 2001, Counsel for both parties agreed that there should be a consent
order on the matters raised in the Defendant�
Summons The consent order was
drawn up and signed on 9th July 2001 by Counsel for both parties.
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The
Plaintiff's Case
The
Plaintiffs applicais supported by affidavit evidence filed by Mr. Zheng
on 7th August 2001. The Plaintiff s application is premised upon
Order 29, rule 12 of the High Court (Civil Procedure) Rules 1964
(the High
Court Rules) supported by Order 64, rule 10 of the High Court Rules. The
combined effect of these Orders and
rules is that a default judgment can be
set aside if the application to do so is made within 6 weeks or within
extended
time whichever is the case. Counsel for the Plaintiff, Mrs. Samuel,
based her case on this premise and urged me to grant the
orders sought in
the Notice of Motion on that basis.
The
Defendant�s Case
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The
Defendant�s case is that the Plaintiff was aware that the consent order was
a �guillotine order� or an �unless order�
and therefore non-compliance was
fatal to the Plaintiffs action. That is to say, non-compliance by the
Plaintiff would
result in the Plaintiffs action being struck out. This is
the position taken by Counsel for the Defendant, Mr. Ashley.
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The
Consent Orspan>
In
my view, the Consent Order speaks for itself. Paragraph 2 of the order says
that failure by the Plaintiff to comply
will result in the Plaintiffs action
being struck out. That is exactly what happened. The Plaintiff having failed
to
comply, its action was struck out on 1st August 2001. The
consent order was an agreement between Counsel for both parties sanctioned
by the Court. It can be changed
by mutual consent. The plaintiff did not
raise the matter of alteration of the consent order with the Defendant.
There
is no evidence that this was done. Consent Orders can be set aside but
in a different way. The case of Wilding v Sanderson [1897] UKLawRpCh 120; [1897] 2 Ch 534
illustrates this point. In that case, the Plaintiff took out a Summons to
set aside a judgment expressed to have been
made by consent by the parties
and sanctioned by the trial judge. The consent order was later sought to be
set aside
on the grounds that the consent of the parties was given by
mistake and that the consent order did not represent the true intention
of
the parties. In setting aside the consent judgment, Byrne, J in his judgment
at pages 543-544 said,
�A
consent judgment or order is meant to be the formal result and expression of
an agreement already arrived at between
the parties to proceedings embodied
in an order of the Court. The fact of its being so expressed puts the
parties in
a different position from the position of those who have simply
entered into an ordinary agreement. It is of course, enforceable
while it
stands , and a party affected by it cannot, if he conceives he is entitled
to relief from its operation, simply
wait until it is sought to be enforced
against him., and than raised by way of defence the matters in respect of
which
he desires to be relieved. He must, when once it has been completed,
obey it, unless and until he can get it set aside in proceedings
duly
constituted for the purpose. In my opinion there was no agreement in the
present case between the parties prior
the judgment being pass and entered,
their minds never having been ad idem in respect of the subject- matter with
which
they were dealing. It also appear to me that the divergence of their
minds was in respect of an essential or fundamental point.
If there was no
agreement there was no consent upon which the judgment could be founded. And
just as a consent order
may be set aside upon any of the grounds upon which
an agreement can be set aside, so it appears to me to follow that such
an
agreement, and, consequently, no true consent to the order made. There was,
it is true, an agreement that the judgment
should be drawn up in the words
actually used; but that agreement was in fact only part of and founded upon
a supposed
prior agreement come to by the pa. When it is once
e
ascertained that there was no actual agreement arrived at before the
judgment was completed, and that the consent upon which the it purports to
be founded never existed, the actual judgment
pronounced does not , I think,
in itself constitute or represent an agreement, but stands as a judgment of
the Court
made in pursuance of a supposed agreement or consent which both
parties believed to exist, but which is not in fact exist.
I conceive that
this is the true principle upon which the present case ought to be decided ,
and that the judgment ought
to be set aside upon the grounds that there
never was an agreement or consent between the parties��
/p>
This
judgment was affirmed on appeal by Lindley L.J., Lopes L.J. and Chitty L.J.
comprising the Court of Appeal. Clearly,
a consent order or judgment can be
set aside but not under the procedure in Order 29, rule 12 or Order 64, rule
10 of
the High Court Rules. The use of the term "default judgment" may have
been misleading in this case.
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The
Consent Odated 9th July 2001 was an agreement between then the
parties intended to be obeyed them. The Consent Order could have been
varied
by mutual consent of the parties at any time before the 14 days
period lapsed. It was open to taintiffs Solicitor to consult
the
Defendant's Solicitor with the view to extending thng the 14 days period in view
of the difficulty faced by the Plaintiff
in obtaining relevant information
from overseas. Such a step would have required good communication between
the Plaintiff
and its Solicitor and the Defendant's Solicitor. This
unfortunately was not the case here., The Consent Order therefore stood
until paragraph 2 lapsed on 24th July 2001. I do not accept the
argument by the Counsel for the Plaintiff that notice of application for a
default order
to be entered against the Plaintiff should have been served
upon the Plaintiff so that the Plaintiff could explain its position
on the
matter. The Consent Order was the Plaintiffs agreement with the Defendant.
There was no need for the Defendant
to tell the Plaintiff about it. It could
however have been done as a matter of good practice but its omission would
be
no excuse for a
complaint by the Plaintiff. The Court
cannot bust a consent order mutually reached by the parties simply on the
ground
that the Defendant stood by that Consent Order and the Plaintiff did
not to its own detriment. It is unfortunate that the Plaintiff
had failed to
seek a variation of the consent to avoid losing its case on technical
ground. I do not think I can grant
the orders sought in the Plaintiffs
Notice of Motion.
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The
Plaintiff'lication is dismissed with costs.
Judge
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