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Bisivotu Enterprises v Cy Chen [2014] SBHC 16; HCSI-CC 249 of 2013 (21 March 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 249 of 2013.

BETWEEN:

BISIVOTU ENTERPRISES
First Claimant

AND:

MARK TOVA
Second Claimant

AND:

CY CHEN
First Defendant

AND:

LC TRADING COMPANY LIMITED
Second Defendant

Date of Submissions: 21st November, 2013, 30th January, 2014
Date of Judgment: 21st March, 2014.

Mr. J. Keniapisia for the Claimants.
Mrs M. Bird for the Defendants.

JUDGMENT.

Faukona J: This is an application for default judgment pursuant to Rules 9.17 B (1) (application), 9.17 B (proof of service by sworn statement) and 9.18 A (draft judgment).

2. The Claimant's case is that a claim and supporting sworn statements were served on the Defendants on 17th July, 2013. Exh.FF01 sworn statement by Mr Fakari'i filed on 23rd July 2013. Fourteen days after receipt of the claim the Defendants failed to file a response, but they filed a notice of legal representation on 9th August, 2013, however, failed to file any defence at all.

3. It would appear that the reason for not filing any defence as Mrs Bird submits is because the claim is too vague and that there is need for further and better particulars from the Claimants in order to file defence. That request was formally done by a sworn statement by the first Defendant filed on 30th October, 2013, and an application filed on the same date but not returned for service. The Defendants rely on Rule 5.13 to request for further and better particulars.

4. Rule 5.13 does not specifically provide for request for further and better particulars but requiring and drawing a standard for Defendant in defence to deal with each fact in the claim. Any amendment to statement of case is provided for by Rules 5.34 to 5.36. And for further pleadings be done by way of leave Rule 5.47.

5. Rule 5.45 allows a party may file a sworn statement of case instead of setting those facts out in the claim, defence or reply. However, if that can be done it must be filed and serve with the claim, defence or reply, rule 5.46.

6. There can be no question that there was no defence been filed according to Rule 5.3.7. Rule 5.45 cannot in the circumstance assist the Defendants because of the prevailing operative of Rule 5.46 that such sworn statement is served with a defence.

7. I consider that the Defendants had failed to file a defence as required by the Rules. Whether in doing so, I would consider Rules 1.3, 1.4 and 1.5 to maintain the objective of the rules. I find such failure had prejudiced the case of the Claimants to advance forward instead promote a set back and delay which run contrary to the objective of the rules. In this instance, I therefore grant default judgment against the Defendant with costs.

ORDERS.

1. That default judgment is entered against the Defendants for the sum of $1,378,800.00 as pleaded in paragraph 13 of the claim filed on 16th July, 2013.

2. That the court shall assess damages and business loss to award to the Claimant as pleaded to in relief 1 of the claim filed on 16th July, 2013.

3. That a charge is placed over the following properties in favour of the Claimants. PN 191-009-84, 191-009-172 and 191-009-173.

4. Cost and interest at 5% per annum be paid by the Defendants.

The Court.