[Home] [Databases] [WorldLII] [Search] [Feedback] [Report an error] [F.A.Q.] High Court of Fiji

You are here:  PacLII >> Databases >> High Court of Fiji >> 2008 >> [2008] FJHC 310

[Recent Decisions] [Noteup] [Download] [Help]

Nand v Chand [2008] FJHC 310; HBC223.2007L (7 November 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
WESTERN DIVISION

Action No. HBC 223 of 2007L

BETWEEN:

KESHWA NAND and SAHSHI MOHINI NAND
both of Mountain View, Nadi
Appellants/Original Defendants

AND

DAVENDRA NARAYAN CHAND
t/a SIS Construction of Malolo, Nadi
Respondent/Original Plaintiff

Appearances:
Mr MA Sahu Khan for Appellants/Original Defendants
Mr R Gordon for the Respondent/Original Plaintiff

Date of Hearing: 23 October 2008
Date of Judgment: 7 November 2008

JUDGMENT

Appeal to set aside Magistrates Court default judgment; Judgment in default of appearance; Application to set aside default judgment refused; No reasons for refusal to set aside default judgment; Defendant at court on day of default judgment; Defendant believed Writ defective without civil action no.; No appearance entered; No Defence filed; Proposed Defence exhibited to Affidavit in Support of setting aside default judgment; Proposed Defence showing arguable or triable issue; Magistrates Court Rules; Tests for setting aside default judgment; Authorities re setting aside discretionary judgment on appeal; Leave to file Defence and Counter Claim

Alpine Bulk Transport Co Inc v. Saudi Eagle Shipping Co Inc, The Saudi Eagle [1886] 2 Lloyd’s Rep 331 (CA)
Bank of Hawaii v. Reynolds [1998] FJHC 82
Burns v. Kondel [1971] 1 Lloyds Rep 554
David v. National Panasonic (Australia) Pty Ltd (NSW Court of Appeal, unreported, 19 December 1985)
Davies v. Pagett (1986) 10 FCR 226
Eni Khan v. Ameeran Bibi & Ors (HBC 3/98S, 27 March 2003)
Evans v. Bartlam [1937] AC 473
Kaur v. Singh [2008] FJHC 158; Appeal Case 61 of 2008 (5 August 2008)
Farden v. Richter (1889) 23 QBD 124
Fiji National Provident Fund v Datt [1988] FJHC 4; (1988) 34 FLR 67 (22 July 1988)
The Fiji Sugar Corporation Limited v. Mohammed Ismail (CivApp No. 28/87 FCA, at 9
Fox v. Percy [2003] HCA 22
Hopton v. Robertson [1884] WN 77, reprinted 23 QBD 126n
Hadmor Productions Ltd and Ors v. Hamilton and Anor [1982] 2 WLR 322
House v. The King [1936] HCA 40; (1936) 55 CLR 499 (17 August 1936)
Joselyn Deo v. The State (CrimApp No. AAU0025 of 2005S, High Ct Crim Action No. HAA 008 of 2005S, 11 November 2005)
Maritime Australia Pty Ltd v. Byrnes; Bauknecht (Third Party) (1974) 1 NSWLR 27
Pankaj Bamola & Anor v. Moran Ali (FCA 59/90)
Pravin Gold Industries Ltd v. The New India Assurance Company Ltd [2003] FJHC 298; HBC0250d.2002s (4 February 2003)
Rajendra Prasad Brothers Ltd v. FAI Insurances (Fiji) Ltd [2002] FJHC 220
Raibili v. Permanent Secretary, Ministry of Agriculture and Fisheries [2003] FJHC 43; Hbj0054j.1999s (13 March 2003)
Ratnam v. Cumaraswamy and Anor [1964] 3 All ER 933:
Richardson v. Howell (1883) 8 TLR 445
Satterthwaite v. Satterthwaite (1948) 1 All ER 343
South Pacific Recordings Ltd v. Ismail [1994] FJHC 134; Hbc0597j.93s (30 September 1994) State Rail Authority of New South Wales v. Earthline Constructions Pty Ltd (In Liq.) [1999] HCA 3; (1999) 73 ALJR 306; 160 ALR 588
Vann v. Awford (1986) 83 LS Gaz 1725; The Times LR (23 April 1986)
Warren v. Coombes (1979) 142 CLR 531, [1979] HCA 9
Watt v. Barnett (1878) 3 QBD 183
Wearsmart Textiles Limited v. General Machinery Hire Limited [1998] FJCA 26; Abu0030u.97s (29 May 1998)

1. Appeal, Default Judgment & Refusal to Set Aside Default Judgment

The Appellants/Original Defendants, Keshwa NAND (Mr Nand) and Sahshi Mohini NAND (Ms Nand), appeal against the refusal of the Magistrate to set aside default judgment. The Grounds of Appeal are:

1. The Learned Trial Magistrate erred in law and in fact in refusing to set aside the default judgment entered against the Appellants/Defendants which was obtained irregularly and the Appellants were entitled to have it set aside ex debitio justitiae:

(i) The claim of the Respondent/Plaintiff was under a certain Building Agreement which required evidence by way of formal proof.

(ii) The claim of the Respondent/Plaintiff was for variation work under the said Building Agreement which was verbal as pleaded in paragraph 9 of the Statement of Claim which also required evidence by way of formal proof.

2. The Learned Trial Magistrate erred in law and in fact in not setting aside the default judgment after the 1st named Appellant/Defendant gave full explanation in his Affidavit sworn 2 October 2006 showing a defence on merits and which disclosed an arguable or triable issue.

3. The Learned Trial Magistrate erred in law and in fact in not considering the fundamental principles of natural justice after the 1st named Appellant/Defendant deposed all the facts in his Affidavit sworn 2 October 2006.

4. The Learned Trial Magistrate did not exercise his discretion properly and/or adequately and/or in proper context when considering the application of the Appellants/Defendants and acted on a wrong principle; he allowed extraneous or irrelevant matters to guide or affect him; he mistook the facts; or that he did not take into account a material consideration.

5. The Appellants/Defendants reserve the right to add further grounds upon receipt of the Court record.

6. That execution of the said judgment be stayed pending the hearing of the Appeal.

1.1 The Magistrates Court decision is recorded on the day as:

27/06/07
Plaintiff : Present – Mr Koya
Defendant 1 : Mr Naidu

See judgment attached.

The application by defendants fails.

Judgment stands, no meritorious reason for setting aside.

See ruling attached.

[sgd.] ([SMS])
RESIDENT MAGISTRATE

1.2 The ‘judgment’ or ‘ruling’ against which the appeal is brought is short. It says:

RULING

This is an application by way of Notice of Motion by the defendants to set aside a judgment entered on 27th September, 2006, and furthermore for a stay of the execution of the judgment.

I have considered all the submissions by both the parties at length.

Before the judgment was entered, the defendants had been served properly. But they did not bother to appear in court on 27/09/06 to either admit or defend the case. They did not even instruct a lawyer to appear on their behalf. Service was in order.

Having taken into account relevant authorities and submissions made by both parties, I am not satisfied that the judgment entered on 27/09/06 should be set aside. Furthermore, there is no reason for stay of the execution of the judgment.

[SMS]

Resident Magistrate

27/06/07: Court Record, p. 125

1.3 The Judgment by Default is set out in short compass, too. Dated 3 October 2006, it states:

JUDGEMENT BY DEFAULT

THERE being no appearance by and/or on behalf of the Defendant IT IS HEREBY ADJUDGED that the above-named Defendant do pay to the above-named Plaintiff the sum of $14,861.30 (Fourteen Thousand Eight Hundred and Sixty One Dollars Thirty Cents) and $123.13 (One Hundred and Twenty Three Dollars Thirteen Cents) for costs.

DATED this 3 October 2006

BY THE COURT

RESIDENT MAGISTRATE
[SMS]: Court Record, p. 51

1.4 The Court Record carries no further information as to the entry of default judgment, save as to say that 27 September 2006 was the return date and first date upon which the matter was called. The Court Record indicates that the matter was dealt with immediately it was called on – that is, there was no standing down or call for the Defendants.

2. Appellants Case

By Affidavit of 24 October 2006 in support of the Motion to set aside the default judgment (Affidavit in Support), Mr Nand (speaking for himself and Ms Nand) said that he was served with the writ on or around 7 September 2006 in Nadi. There was, he said ‘... no civil action number’ and therefore he believed it to be ‘defective in terms of service on me’. Not accepting the Plaintiff (Mr Chand)’s claim as set out in the writ, he was ‘of the opinion that [Mr Chand] was not serious in his claim which is why I did not immediately engage a solicitor’: Affidavit in Support, paras 5, 6; Court Record, p. 57

2.1 Mr Nand said he rang the court:

... to inquire if [Mr Chand] was serious about the claim and if this matter was likely to proceed on the return date of 27th September 2006, I was asked to provide a civil action number and I informed the court clerk I spoke to that there was no civil action number and he stated that as there was no civil action number, the service on me was not proper and the writ was not valid: Affidavit in Support, para 7; Court Record, p. 57

2.2 When he nonetheless went to court on 27 September 2006, arriving at 9.10am (at the latest, as he avers), after enquiring about the proceeding Mr Nand discovered default judgment had been entered: Affidavit in Support, para 8; Court Record, p. 58

2.3 Mr Nand’s explanation and grounds upon which he sought to have the default judgment set aside were:

• he did not engage a solicitor or file a defence to the claim as he had ‘genuinely and honestly believe[d]’ he and Mr Chand ‘would resolve our differences’ and he would show Mr Chand that he ‘was misinformed about his claim and ...rather than [Mr Nand’s] owing [Mr Chand] money ... [Mr Chand] owes me money’: Affidavit in Support, para 11; Court Record, p. 58

• he believed service was not proper so did not believe the claim was likely to proceed: Affidavit in Support, para 12; Court Record, p. 58

• he intended no disrespect to the court in its process or the Honourable Magistrate or Counsel for Mr Chand and offers apologies: Affidavit in Support, para 12; Court Record, p. 58

• he has ‘a valid and meritorious defence ... in that the proceedings have not been decided on merits’ and annexes a copy of the proposed Defence: Affidavit in Support, para 13; Court Record, p. 58

2.4 Before addressing the parties’ submissions, I turn to the authorities against which those submissions and Mr Nand’s explanation, grounds and contentions as to his defence must be considered.

3. Setting-Aside Default Judgment – Authorities

In Eni Khan v. Ameeran Bibi & Ors (HBC 3/98S, 27 March 2003) His Lordship Justice Gates set out the principles applicable to setting aside default judgment, referring to Burns v. Kondel [1971] 1 Lloyds Rep 554; Evans v. Bartlam [1937] AC 473; Vann v. Awford (1986) LS Gaz 1725; The Times LR (23 April 1986); and Fiji National Provident Fund v Datt [1988] FJHC 4; (1988) 34 FLR 67 (22 July 1988). So, too, His Lordship Justice Pathik in South Pacific Recordings Ltd v. Ismail [1994] FJHC 134; Hbc0597j.93s (30 September 1994) and also in Pravin Gold Industries Ltd v. The New India Assurance Company Ltd [2003] FJHC 298; HBC0250d.2002s (4 February 2003), referring to Pankaj Bamola & Anor v. Moran Ali (FCA 59/90), amongst others. In Kaur v. Singh [2008] FJHC 158; Appeal Case 61 of 2008 (5 August 2008) the authorities were also explored.

3.1 In Wearsmart Textiles Ltd v. General Machinery Hire Ltd [1998] FJHC 26; Abu0030u.97s (29 May 1998) the Court of Appeal similarly addressed the question of setting aside judgment, by reference to the authorities including Farden v. Richter (1889) 23 QBD 124; Hopton v. Robertson [1884] WN 77, reprinted 23 QBD 126n; Richardson v. Howell (1883) 8 TLR 445; Watt v. Barnett (1878) 3 QBD 183; Alpine Bulk Transport Co Inc v. Saudi Eagle Shipping Co Inc, The Saudi Eagle [1886] 2 Lloyd’s Rep 331 (CA); and Vann v. Awford (1986) 83 LS Gaz 1725; The Times LR (23 April 1986)

3.2 The principles therein distilled and a number of other authorities provide:

• Defendant does not need to show a good defence on the merits – ‘ ... need only show a defence which discloses an arguable or triable issue’: Burns v. Kondel [1971] 1 Lloyds Rep 554

• Applicant must produce to the court ‘evidence that he has a prima facie case’: Evans v. Bartlam [1937] AC 473, at 651

• ‘The defendant’s application is brought pursuant to Order 13 Rule 10 which confers on the court a discretion to set aside or vary any default judgment on such terms as it thinks just. The discretion is prescribed in wide terms limited only by the justice of the case and although various "rules" or "tests" have been formulated as prudent considerations in the determination of the justice of a case, none [has] been or can be elevated to the status of a rule of law or condition precedent to the exercise of the court’s unfettered discretion. These judicially recognised "tests" may be conveniently listed as follows:

(a) whether the defendant has a substantial ground of defence to the action;

(b) whether the defendant has a satisfactory explanation for his failure to enter an appearance to the writ; and

(c) whether the plaintiff will suffer irreparable harm if the judgment is set aside.

In this latter regard in my view it is proper for the court to consider any delay on the defendant’s part in seeking to set aside the default judgment and how far the plaintiff has gone in the execution of its summary judgment and whether or not the same has been stayed: Fiji National Provident Fund v Datt [1988] FJHC 4; (1988) 34 FLR 67 (22 July 1988), at 3

• ‘The basic principles applicable to setting aside judgments in the exercise of [a] Court’s discretion are set out in Halsbury’s Laws of England Vol 37, 4th edn, para 403, inter alia, thus:

In the case of a regular judgment, it is an almost inflexible rule that the application must be supported by an affidavit of merits stating the facts showing that the defendant has a defence on the merits ... For this purpose it is enough to show that there is an arguable case or a triable issue.

There it is further stated:

There is no rigid rule requiring the applicant to explain why he allowed judgment to go by default, but nevertheless, at least in the case of regular judgment, such explanation is obviously desirable to enable the court to exercise its discretion, especially as to any and if so what terms should be imposed’: Pravin Gold Industries Ltd v. The New India Assurance Company Ltd [2003] FJHC 298; HBC0250d.2002s (4 February 2003), at 3

• ‘A useful summary of the factors to be taken into consideration is to be found... [in] The Supreme Court Practice 1995, Vol 1 at 142 which I have considered and which is, inter alia, as follows:

The purpose of the discretionary power is to avoid the injustice which may be caused if judgment follows automatically on default. The primary consideration in exercising the discretion is whether the defendant has merits to which the court should pay heed, not as a rule of law but as a matter of commonsense, since there is no point in setting aside a judgment if the defendant can[not] show merits, [but if they are shown] the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication. Also as a matter of commonsense the court will take into account the explanation of the defendant as to how the default occurred’: Pravin Gold Industries Ltd v. The New India Assurance Company Ltd [2003] FJHC 298; HBC0250d.2002s (4 February 2003), at 3

• ‘From Alpine Bulk Transport Co Inc v. Saudi Eagle Shipping Co inc, The Saudi Eagle [1986] 2 Lloyd’s Rep 221 (CA) ... the following propositions may be derived:

a) It is not sufficient to show a merely "arguable" defence that would justify leave to defend under Order 14; it must both have a "real prospect of success" and "carry some degree of conviction". Thus the court must form a provisional view of the probable outcome of the action.

b) If proceedings are deliberately ignored, this conduct, although not amounting to an estoppel at law, must be considered "in justice" before exercising the court’s discretion to set aside’: Pravin Gold Industries Ltd v. The New India Assurance Company Ltd [2003] FJHC 298; HBC0250d.2002s (4 February 2003), at 4

• ‘[Having] carefully considered [the] submission ... I find that the defendants have shown defence on merits and not merely raised triable issues on the affidavit filed by them. The defendants only have to "establish a prima-facie defence" and that a "draft defence is not necessary, what is required is the affidavit disclosing a prima facie defence"’: South Pacific Recordings Ltd v. Ismail [1994] FJHC 134; Hbc0597j.93s (30 September 1994), at 3; citing The Fiji Sugar Corporation Limited v. Mohammed Ismail (CivApp No. 28/87 FCA, at 9

• ‘The general principles upon which a Court should act on an application to set aside a judgment that has been regularly entered are set out in the White Book, ie The Supreme Court Practice 1997 (Volume 1) at p. 143. They are as follows:

Regular judgment – if the judgment is regular, then it is an (almost) ... inflexible rule that there must be an affidavit of merits, ie an affidavit stating facts showing a defence on the merits: Farden v. Richter (1889) 23 QBD 124. "At any rate where such an application is not thus supported, it ought not to be granted except for some very sufficient reason," per Huddleston, B. Farden v. Richter, at 129 approving Hopton v. Robertson [1884] WN 77, reprinted 23 QBD 126n; and see Richardson v. Howell (1883) 8 TLR 445; and Watt v. Barnett (1878) 3 QBD 183, at 363

For the purpose of setting aside a default judgment, the defendant must show that he has a meritorious defence. For the meaning of this expression see Alpine Bulk Transport Co Inc v. Saudi Eagle Shipping Co Inc, The Saudi Eagle [1986] 2 Lloyd’s Rep 221, CA ...’ Wearsmart Textiles Limited v. General Machinery Hire Limited [1998] FJCA 26; Abu0030u.97s (29 May 1998), at 8-9

• ‘On the application to set aside a default judgment the major consideration was whether the defendant has disclosed a defence on the merits, and this transcends any reasons given by him for the delay in making the application even if the explanation given by him is false (Vann v. Awford (1986) 834 LS Gaz 1725; The Times, 23 April 1986 (CA) The fact that he has told lies in seeking to explain the delay, however, may affect his credibility and may therefore be relevant to the credibility of his defence and the way in which the court should exercise its discretion ...’: Wearsmart Textiles Limited v. General Machinery Hire Limited [1998] FJCA 26; Abu0030u.97s (29 May 1998), at 8

• ‘We all know that in the ordinary way the Court does not set aside a judgment in default unless there is an affidavit showing a defence on the merits. That does not mean that the defendant must show a good defence on the merits. He need only show a defence which discloses an arguable or triable issue’: Burns v. Kondel [1971] 1 Lloyds Rep 554, at 555, per Lord Denning, MR

• ‘[The Rules] give a discretionary power to the judge ... to set aside a default judgment. The discretion is in terms unconditional. The courts, however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that, where the judgment was obtained regularly, there must be an affidavit of merits, meaning that the applicant must produce to the court evidence that he has a prima facie defence. It was suggested ... that there is another rule, that the applicant must satisfy the court that there is a reasonable explanation why judgment was allowed to go by default, such as mistake, accident, fraud or the like. I do not think that any such rule exists, though obviously the reason, if any, for allowing judgment and thereafter applying to set it aside is one of the matters to which the court will have regard in exercising its discretion’: Evans v. Bartlam [1937] AC 473; 2 AER 646, at 650 per Lord Atkin

• ‘If there were a rigid rule that no one could have a default judgment set aside who knew at the time and intended that there should be a judgment signed, the [rules] would be deprived of most of their efficacy. The principle obviously is that, unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has been obtained only by a failure to follow any of the rules of procedure’: Evans v. Bartlam [1937] AC 473; 2 AER 646, at 650 per Lord Atkin

• ‘ ... the major consideration is where the defendant has disclosed a defence on the merits, and this transcends any reasons given by him on the delay in making the application even if the explanation given by him is false.’ ‘ ... that he has told lies in seeking to explain the delay, however, may affect [the] credibility of his defence and the way in which the Court should exercise its discretion’: Vann v. Awford (1986) LS Gaz 1725; The Times LR (23 April 1986)

• ‘ ... to enable the Court to properly exercise its discretion there are certain basic preconditions which have to be fulfilled by the applicant. They are: (i) reasons why judgment was allowed to be entered by default, (ii) application must be made promptly and without delay, and (iii) an affidavit depositing to facts that show that the defendant has a defence on the merits’: Pravin Gold Industries Ltd v. The New India Assurance Company Ltd [2003] FJHC 298; HBC0250d.2002s (4 February 2003), at 4, citing Pankaj Bamola & Anor v. Moran Ali (FCA 59/90) (Emphasis in original)

• ‘ ... it is an (almost) inflexible rule that there must be an affidavit of merit ie an affidavit stating facts showing a defence on the merits ...’ ‘At any rate where such an application is not thus supported, it ought not to be granted except for some very sufficient reason’: Farden v. Richter (1889) 23 QBD 124, at 129 per Huddleston, B.

• ‘A judgment in default is not a judgment "upon merits"’: Wearsmart Textiles Ltd v. General Machinery Hire Ltd [1998] FJCA 26; Abu0030u.97s (29 May 1998), at 6, citing Oppenheim v. Mohammed [1922] 1 AC 482

• ‘The primary consideration is whether he has merits to which the Court should pay heed; if merits are shown the Court will not prima facie desire to let a judgment pass on which there has been no proper adjudication. This point was emphasised in Watt v. Barnett 3 QBD 363’: Evans v. Bartlam [1937] AC 473, at 489 per Lord Wright

• ‘The Court might also have regard to the applicant’s explanation why he neglected to appear after being served, although as a rule his fault (if any) in that respect can be sufficiently punished by the terms as to costs or otherwise which the Court in its discretion is empowered by the rule to impose. The appellant here has an explanation, the truth of which is indeed denied by the respondent, but at this stage I see no reason why he should be disbelieved on what appears to me to be a mere conflict on affidavits’: Evans v. Bartlam [1937] AC 473, at 489 per Lord Wright

• ‘Discretion to set aside a default judgment "is in terms unconditional"’: Evans v. Bartlam [1937] AC 473, at 480

4. Application of Principles & Parties’ Submissions

Comprehensive Written Submissions have been provided by Counsel, which is of considerable assistance to the Court; similarly as to the oral submissions at the hearing.

4.1 Fundamentally, Mr Chand relies upon the Rules relating to time, together with the principles pertaining to the setting aside of default judgments as set out in Wearsmart Textiles Ltd v. General Machinery Hire Ltd [1998] FJCA 26; Abu0030u.97s (29 May 1998). Counsel says that the ‘only issue before this Court is whether the Learned Magistrate was correct in refusing to set aside default judgment’: Written Submissions, p. 1

4.2 (a) Validity of Writ: The suggestion that the Writ was not valid due to the lack of an action number is contested:

The only marker of validity of a court document is the seal of the court. Section 49 of the Magistrates Court Act (Cap 14) and Rule 2 of the Subsidiary Legislation of the Magistrates Court Act ... provide no other requirement [for] validity of a writ. Therefore this argument ... holds no merit: Written Submissions, p. 2

4.3 To be valid, a Writ does not have to bear its civil number – albeit for the orderly conduct of all proceedings and facilitating persons served with court documents, this will always assist them and ought not to be overlooked. It is unfortunate that this occurred, particularly where the parties were not represented. In my opinion, an obligation lies on parties instituting action to ensure that papers served on litigants are complete. The lack of action number places an onus on the party/ies receiving the documents to make enquiries they ought not have to make and to, effectively, do the job that those instituting the action ought themselves to have done, namely locating the number of the action so that they (those who are defendants) can efficiently respond.

4.4 Neither should it pass without comment that the documents served on Mr Nand and those purporting to be a copy of them (as attached to the Affidavit of Service) are not identical. The documents Mr Nand received were (entirely) without a civil number. They appear at Court Record, pp. 61-80 The document requiring his attendance on 27 September 2006 is clearly signed by the Clerk of the Court, albeit the date issued is corrected from what appears to be 20th August 2006 to 30th August 2006. On the other hand, the document attached to the Affidavit of Service is clearly different. It is readily discernable as not an identical document (by reference to the items completed in the Clerk’s handwriting): amongst other matters, in addition to carrying a civil number, the date 30th August 2006 appears without any sign of amendment: Court Record, p. 35

4.5 Albeit as noted, none of the documents served on Mr Nand carries a civil number, of those attaching to the Affidavit of Service, that requiring his attendance on 27 September 2006 does bear the number No. 111 of 2006 (the correct number of the action): 13, 35 whilst (as with Mr Nand’s documents) the remaining documents (Statement of Claim) do not: Court Record, pp. 13-34, 35-50

4.6 Under the Magistrates Court Rules, an Affidavit of Service is required to carry ‘a true copy of the ... writ of summons in [the] action’: Form 3, Order VI As noted, a ‘true copy’ of all documentation served on Mr Nand is not what is attached to the Affidavit of Service, according to the Court Record.

4.7 Mr Nand did, in the event, appear at court on the date required. The documents with which he was served brought him to court on the day. Thus despite the information given to him by Court personnel as he attests, he was not disadvantaged by the discrepancy, at least into not appearing.

4.8 (b) Compliance with Timelines: For Mr Chand it is said that timelines need to be complied with, and strictly so. Thus the failure of Mr Nand and Ms Nand to do so means they ought not to be given latitude they seek, in having the default judgment set aside and in taking the other steps they ought to have taken within the timelines and now seek to take despite not having complied by the dates required.

4.9 It is said, for example:

The writ clearly stated 9.00am, [Mr Nand] turned up at 9.10am. Time is of the essence and the rigor of time has been legislated, [Mr Nand] cannot complain to this court that the court below should have waited for him: Written Submissions, p. 2

4.10 Hence, it is said, the submission that Mr Nand did appear on the day, albeit at 9.10am rather than 9.00am, to find after enquiries that judgment had been entered against him ‘holds no merit’. Similarly as to the failure to file a Notice of Intention to Defend and/or any Defence in accordance with the timelines required.[1] So, too, as to the endeavour, now, to have a Defence and Counterclaim taken into account:

Order VI, Rule 8 provides that if [Mr Nand (and Ms Nand)] had failed to file the ‘Notice of Intention to Defend’ or was not given leave to defend, then [Mr Chand] was entitled to enter final judgment.

These are statutory rules enacted by Parliament for the proper functioning of the Magistrates Courts. These rules cannot be discarded by [Mr Nand (and Ms Nand)].

The failure by [Mr Nand (and Ms Nand)] to file the ‘Notice of Intention to Defend’ was fatal and cannot be cured by seeking to mount an appeal based on the setting aside process: Written Submissions, p. 3

4.11 So, too, for the Defence and Counter Claim: Written Submissions, pp. 3-4

4.12 Rules of the Court have meaning. Timelines exist for a purpose. As was said in Rajendra Prasad Brothers Ltd v. FAI Insurances (Fiji) Ltd [2002] FJHC 220, at 8; and Bank of Hawaii v. Reynolds [1998] FJHC 82, at 6, adopting the principle from Ratnam v. Cumaraswamy and Anor [1964] 3 All ER 933:

The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, the party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation: at 935

4.13 At the same time, timelines are not expected to operate consistent with a principle that may prompt or promote authoritarian rule. For Ms Nand and Mr Nand, David v. National Panasonic (Australia) Pty Ltd (NSW Court of Appeal, unreported, 19 December 1985) and Maritime Australia Pty Ltd v. Byrnes; Bauknecht (Third Party) (1974) 1 NSWLR 27, at 30 are cited. In the latter, the NSW Court of Appeal said:

...We appreciate that the Rules of Court, particularly those relating to time, should never be allowed to be an instrument of tyranny. They do, however, have purposes, one of which is that the parties may know where they stand and regulate their affairs accordingly. It is also appreciated that where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time. [Nonetheless] the impact of inflationary trends cannot be altogether ignored where a successful plaintiff is precluded from enforcing his judgment ...: at 30

4.14 The essence of this is that an evenhandedness is essential – not to give imprimatur to ignorance of timelines or willful disregard of them, mindfulness of the rights of those who do or have adhered to timelines, yet also recognising that good reason or explanation may exist on the part of those who have not complied. Noncompliance does not always bespeak a flouting of the court’s requirements.

4.15 A feature of the present case is that in refusing to set aside judgment in default, the Magistrate does not appear to have taken into account in any way at all Mr Nand’s attestation that he did attend at court on 27 September 2008, albeit at 9.10am rather than 9.00am as required. Indeed, it appears that the fact that Mr Nand attended (as Counsel for Mr Chand acknowledges in the Written Submissions, p. 2) on the day is not understood, taken into account, or acknowledged at all. The ‘Ruling’ of the Magistrate (which in my opinion cannot fairly be said to constitute ‘reasons’) states:

Before the judgment was entered, the defendants had been served properly. But they did not bother to appear in court on 27/09/06 to either admit or defend the case. They did not even instruct a lawyer to appear on their behalf. Service was in order: Court Record, p. 125

4.16 Mr Nand was ‘at’ and not ‘in’ court. However, as he attended at 9.10am, he may have been ‘in’ court had the matter been called.

4.17 On the day default judgment was entered, in the absence of any Notice of Intention to Defend and in the absence of Defence having been filed, that a view may have been formed that Mr Nand and Ms Nand could well not appear is understandable. This is different from a situation where Notice of Intention to Defend is filed, and particularly where a Defence is filed. Nonetheless, as pointed out in Kaur v. Singh [2008] FJHC 158; Appeal Case 61 of 2008 (5 August 2008) Order XXX, Rule 3 which provides for a Defendant’s not appearing says:

If the plaintiff appears, and the defendant does not appear or sufficiently excuse his absence, or neglects to answer when duly called, the court may, upon proof of service of the summons proceed to hear the cause and give judgment on the evidence adduced by the plaintiff, or may postpone the hearing of the cause and direct notice of such postponement to be given to the defendant:

4.18 In Kaur v. Singh not only had Notice of Intention to Defend been filed; so had a Defence putting forward various defences whilst acknowledging part of the debt was owed, but part only. Despite this, the Court there entered judgment in default for the whole of the amount claimed by the Plaintiff, because the Defendants did not appear.

4.19 In setting aside the default judgment and refusal of the Magistrates Court to set it aside in Kaur v. Singh, it appeared to me that there were matters of concern:

• the Defendants were at Court on the date of the hearing – this [was] attested to not only by them, but by the Plaintiff;

• when the matter was called before the Magistrate on that date, the Solicitor who appeared properly sought the leave of the Court to withdraw as she had no instructions from the Defendants;

• this meant that the Defendants were unrepresented parties: at para [10.2]

and went on to say:

Their being unrepresented, this meant, in turn, that the matter should have been called outside the Courtroom – the Defendants’ names should have been called. There is no indication on the Court Record that this was done. However, to comply with Order XXX, Rule 3, in my opinion that was the course that should have been followed.

There is of course no assurance that the Defendants would have appeared, had they been called: on their own Affidavit in Support of the application to set aside default judgment, they had left the Court premises in the belief that the matter would be called midmorning rather than at 9.00am. However, once they were unrepresented, consistent with Order XXX this opportunity should have been provided: at paras [10.3]-[10.4]

4.20 That was, as has been said, a different situation from that pertaining in the present case. However, it is evident that with Mr Nand being on the court premises and making enquiries at the Court as appears from his Affidavit in Support, had the matter been called he may well (as noted) have heard the call and appeared. He would then have had an opportunity to make representations or at least to make it clear to the Court that he was not standing idly by.

4.21 Mr Nand and Ms Nand were remiss in not making evident their intention to defend through the ordinary court processes of filing the necessary documents. They would have been well-advised to seek legal advice long before 27 September 2006. Courts are not, and cannot be, obliged to spend time waiting to see if parties ‘turn up’. However, as has been said elsewhere in the context of court delays:

The fundamental duty of the court is to do justice between the parties. It is, in turn, fundamental to that duty that the parties should each be allowed a proper opportunity to put their cases upon the merits of the matter. Any limitation upon that opportunity will generally be justified only by the necessity to avoid prejudice to the interests of some other party, occasioned by misconduct, in the case of the party upon whom the limitation is sought to be imposed. The temptation to impose a limitation through motives of professional discipline or general deterrence is readily understandable; but, in our opinion it is an erroneous exercise of the relevant discretion to yield to that temptation. The problem of delays in the courts, egregious as it is, must be dealt with in other ways; for example, by disciplinary actions against offending practitioners and by a comprehensive system of directions, hearings or other pre-trial procedures which enable the court to supervise progress – and, more pertinently non-progress – in all actions: Davies v. Pagett (1986) 10 FCR 226, at 232 (Federal Court of Australia, Full Court), cited with approval Pravin Gold Industries Ltd v. The New India Assurance Company Ltd [2003] FJHC 298; HBC0250d.2002s (4 February 2003)

4.22 Timelines, and time, are important, even vital. But they are not everything. Repeating what was said in Evans v. Bartlam [1937] AC 473; (1937) 2 All ER 646, as earlier adverted to:

If there were a rigid rule that no one could have a default judgment set aside ..., the [rules] would be deprived of most of their efficacy. The principle obviously is that, unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has been obtained only by a failure to follow any of the rules of procedure: at 650 per Lord Atkin

4.23 I am not persuaded that the timelines should operate to preclude Ms Nand and Mr Nand from having their day in court. This does not mean that parties can take this as an open invitation to flaunt timelines or to ignore them, or to think that in so doing or simply ‘missing’ a time requirement this Court will allow them all manner of latitude. Far from it. The timelines are there to be abided by, as are the requirements for taking elementary steps such as filing a Notice of Intention to Defend and filing a Defence (and Counterclaim if that is anticipated).

4.24 (c) Question of Merits: In the present case, the Court directs its attention to the fundamental principles by which the question of whether or not a default judgment should be set aside is addressed. It is not apparent that these were taken into account by the Magistrates Court in the first instance. There being no reasons provided, there is no assurance that they were. The ‘Ruling’ provides no confidence of this.

4.25 The statement that the defendants ‘did not bother to appear in court’ when Mr Nand’s material says he was at court adds to concerns about the way in which the matter was considered by the Magistrates Court. Certainly, Mr Nand was not in court on the day. But he was at court and that should not be passed over as if it was of no moment. As I have said, he should have been there at 9.00am and not later. As I have also said, however, that is not the only matter in issue.

4.26 When the question of setting aside the default judgment arose in the first instance, the Magistrates Court ‘Ruling’ alludes to having ‘considered all the submissions by both the parties at length’ and states further that ‘relevant authorities and submissions made by both parties’ have been ‘taken into account’. On that basis, as it appears, the court is ‘not satisfied that the judgment entered on 27/09/06 should be set aside’; nor is there any ‘reason for stay of the execution of the judgment’: Court Record, p. 125

4.27 Taking the authorities into account would, however, have required a consideration of the Defence (and Counterclaim) sought to be relied upon by Mr Nand and Ms Nand. If this disclosed an ‘arguable case’ or ‘a meritorious defence’ or ‘arguable or triable issue’ or ‘evidence that [Ms Nand and Mr Nand] had a prima facie case’, this should at least have given the Magistrates Court reason for pause. The Court should have considered, per Fiji National Provident Fund v. Datt:

(a) whether the defendant has a substantial ground of defence to the action;

(b) whether the defendant has a satisfactory explanation for his failure to enter an appearance to the writ; and

(c) whether the plaintiff will suffer irreparable harm if the judgment is set aside.

4.28 There is nothing of substance in the Magistrates Court in the ‘Ruling’ to indicate that these were taken into account or even adverted to – apart from the reference to ‘submissions’ and ‘authorities’ and having considered them or ‘considered them thoroughly’ and that to Mr Nand and Ms Nand’s ‘not having bothered to appear in court’.

4.29 The explanation for Mr Nand and Ms Nand’s failure to enter an appearance to the writ is not particularly substantial. Nevertheless, a reason or explanation has been put forward which is not wholly lacking in substance. They do, after all, provide some explanation. On the authorities, the explanation for delay is not, ultimately, the only consideration. Nor, indeed, is it the predominant one.

4.30 More than this is the consideration of the other two factors pinpointed by His Lordship Justice Fatiaki in Fiji National Provident Fund v Datt [1988] FJHC 4; (1988) 34 FLR 67 (22 July 1988), at 3, and as cited by His Lordship Justice Gates in Eni Khan v. Ameeran Bibi & Ors (HBC 3/98S, 27 March 2003).

4.31 The claim upon which judgment in default was delivered was one relating to ‘work done’ or said to have been done. Mr Nand and Ms Nand in the Defence say there was a contract (‘the Agreement’) under which the parties were required first to send a notice of any dispute, then go to arbitration: s. 16(1)(2)(3), para (16) Proposed Statement of Defence and Counter Claim (Proposed Statement), Court Record, p. 85

4.32 Further in the Defence and Counterclaim they set out matters requiring agitation upon the merits and requiring agitation on the merits of the claim made by the Plaintiff, Mr Chand. For example:

Proposed Defence

• they admit some matters, do not accept others, and deny further matters: Proposed Statement, Court Record, pp. 83-90

• they do not accept that the variation work claimed by Mr Chand amounted to $25,432.50 inclusive of labour and materials: Proposed Statement, para (7), Court Record, p. 83;

• as to one variation, they say the work ‘was part of the original contract’ and the variation ‘would not have taken all that much more time’ and ‘the price difference would have been negligible’. they set out their reasons for this assertion: Proposed Statement, para (8), Court Record, p. 83

• they say a number of the ‘variations’ claimed were in fact a part of the original contract – for example, Proposed Statement, paras (9)(10), Court Record, pp. 83, 85

• they dispute that work itemized has been carried out, and ‘are willing to adduce evidence by way of physical inspection to show this’: Proposed Statement, para (11), Court Record, p. 85

• they accept there was variation work done, but put Mr Chand ‘to strict proof of the timber and materials ... he says was not used amounting to $10,571.20’, stating their understanding that Mr Chand ‘did not buy much of the materials ... itemized and, in may cases, [they] bought the materials or object fittings ... itemized’. They say they can adduce evidence ‘to prove that they have borne the costs of some of these materials and object fittings’: Proposed Statement, para (13), Court Record, p. 85

• they deny they are refusing or neglecting to pay the sum demanded: Proposed Statement, para (14), Court Record, p. 85

• they assert that Mr Chand has breached the Agreement by not obtaining their written consent to variation, and rely upon section 59 of the Indemnity, Guarantee and Bailment Act (Cap 232) and section 3 of the Agreement: Proposed Statement, paras (15(16), Court Record, p. 85

Proposed Counter Claim

• they say they have ‘incurred expenses which should have been borne by’ Mr Chand, particularising them as ‘Items Supplied by’ them, adding to a total of $19,015.00; ‘Unfinished work (already paid)’, amounting to some $5,300.00; ‘Substandard work that needs to be redone’ - ‘Cost quoted labour and materials’ of $3,870.00: Proposed Statement, para (17)(a)(b)(c), Court Record, pp. 85-89

• they say their Counter Claim totals $27,285.00 which they are ‘content to limit ... to $15,000 to bring it within the [Magistrates Court] jurisdiction’: Proposed Statement, para (17), Court Record, p. 89

Prayer for Relief

(i) That the Plaintiff’s action be dismissed.

(ii) Judgment in the sum of $15,000.00 on the basis of the Counter Claim.

(iii) Interest.

(iv) Such other and further relief.

(v) Costs on a solicitor client basis.

(vi) Claim to be limited to the Jurisdiction of the Magistrates court: Proposed Statement, Court Record, p. 89

4.33 In my view, the Defence and Counterclaim sought to be relied upon by the Defendants, Annexure ‘KN2’ to Mr Nand’s Affidavit in Support and hence filed on 3 October 2006 brings Ms Nand and Mr Nand squarely within the authorities.

4.34 The Magistrates Court note on 27 June 2007:

Judgment stands, no meritorious reason for setting aside: Court Record, p. 9 does not provide a confidence that the matters set out in the Proposed Statement were taken into account.

4.35 (d) Rights of Plaintiff: On whether the Plaintiff, Mr Chand, will ‘suffer irreparable harm if the judgment is set aside’, the answer must be ‘no’. Setting aside the judgment means that the Plaintiff and the Defendants have an opportunity to have, respectively, their claim, defence and counterclaim heard on the merits and a decision will be made accordingly. This does not disadvantage the Plaintiff (taking into account the issues adverted to below): it simply puts Mr Chand to the proof of his claim and he will now be able to bring evidence in support of it. Fairness would, however, require that there should be an expeditious hearing of the matter.

4.36 As was said in Fiji National Provident Fund v. Datt [1988] FJHC 4; (1988) 34 FLR 67 (22 July 1988):

In this latter regard [the Plaintiff’s rights] in my view it is proper for the court to consider any delay on the defendant’s part in seeking to set aside the default judgment and how far the plaintiff has gone in the execution of its summary judgment and whether or not the same has been stayed: at 3, per Fatiaki, J.

4.37 As to these factors in the present case, the following applies.

4.38 Stay: The judgment has not been stayed: Magistrates Court ‘Ruling’, Court Record, p. 125 However, refusal was based upon the ‘Ruling’ and proposition that there was ‘no meritorious reason for setting aside’: Court Record, p. 9 a conclusion difficult to understand. I can place no weight upon this in consideration of the factors to which His Lordship Justice Fatiaki adverts.

4.39 Delay: The Defendants did not delay, once default judgment was entered: its being entered on 27 September 2006, they filed their Summons with Affidavit in Support (Proposed Statement, Annexure ‘KN2’) on 3 October 2006.

4.40 Execution of Summary Judgment: The Plaintiff as it appears took action by obtaining a ‘Stop Departure Order’ from the Magistrates Court ex parte upon the proposition that Ms Nand and Mr Nand were decamping to the United States of America (US): Court Record, pp. 131-144 On 18 July 2007 the ‘Stop Departure Order’ was set aside ex parte by the High Court:

This matter comes before the Court by way of an ex-parte notice of motion filed on the 18th July 2007. The motion seeks orders discharging an order made by the Nadi Magistrates Court on the 13th July 2007. That order purported to grant a ‘stop departure order’ against the plaintiffs.

The notice of motion is supported by an affidavit of Keshwa Nand sworn on the 18th July 2007 and annexed to the affidavit is a copy of the order of the Nadi Magistrates Court together with a copy of the affidavit of Davendra Nayaran Chand upon which the magistrate appears to have relied to make his order.

There would appear to be numerous difficulties with the order that was made by the magistrate and the basis upon which it was made. Should it be that there is a proper basis for stopping the departure of a person from leaving the country then a proper way of doing it is by a writ ne exat.

There are of course other provisions in the Immigration Act and these are provisions that depend upon the exercise of a discretion by an immigration officer or the relevant minister not a magistrate.

The affidavit of Davendra Narayan Chand doesn’t even annex a copy of the alleged default judgment nor does it spell out with specificity the amount allegedly owing. It uses the words ‘sum less than $15,000.00’. He also relies upon blatant hearsay which on the material now placed before the Court is patently incorrect.

The undertaking as to damages given in paragraphs 10 and 11 of that affidavit is incompetent and certainly doesn’t go anywhere near complying with the requirements as set out by the Fiji Court of Appeal in Natural Waters of Viti Limited v. Crystal Clear Mineral Water (Fiji) Limited – ABU 0011 of 2004S [Natural Waters of Viti Ltd v. Crystal Clear Mineral Water (Fiji) Ltd [2004] FJCA 59; ABU0011.2004S & ABU0011A.2004S (26 November 2004)]

I am also informed by counsel for the plaintiff that their attempt to pursue the matter by way of appeal against the decision of the magistrate has been prevented by the failure of the magistrate to make available his reasons. This is indeed a most unsatisfactory situation. In the circumstances I therefore make the following orders:

(a) That the order made at Nadi Magistrates Court on the 13th of July 2007 against the plaintiff be discharged forthwith.

(b) The copy of this order be served on the Immigration & Customs Authority at Nadi Airport to be loaded in the Department Checklist at the airport, and

(c) That a copy of this ruling be forwarded to the Learned Magistrate.

(d) The matter is then adjourned to the 27th July 2007 in Court No. 4: HBC No. 223 of 2007; paras [1]-[7], High Court File HBC 223/2007

4.41 It appears that there is no other material in the Court Record to indicate that Mr Chand has taken any further or any other action to enforce the default judgment, albeit in the Affidavit in Support of the Notice of Motion (Ex-Parte) for the Stop Departure Order Mr Chand states:

4. THAT the Defendants have not paid the said sum or any part thereof.

[Then appear paragraphs relating to the contention that Ms Nand and Mr Nand are leaving Fiji]

7. THAT the Defendants have no intention to pay the monies owing to me under the said Judgment.

8. THAT if the Defendants leave the country I stand to suffer substantial loss.

9. THAT I pray that an Order be made against the Defendants stopping their Departure from Fiji until my debt under the said Judgment is fully paid and matters herein fully dealt with by the Court.

[Then appear paragraphs relating to the ‘usual undertaking as to Damages ...’ and pray for ‘Order/s stopping Departure of the Defendants’ as per the Notice of Motion]: Court Record, p. 137

5. Discretion to Set Aside Default Judgment

This Court has a discretion to set aside judgment entered in default. As earlier observed, as was said in Pravin Gold Industries Ltd v. The New India Assurance Company Ltd [2003] FJHC 298; HBC0250d.2002s (4 February 2003):

The purpose of the discretionary power is to avoid the injustice which may be caused if judgment follows automatically on default. The primary consideration in exercising the discretion is whether the defendant has merits to which the court should pay heed, not as a rule of law but as a matter of commonsense, since there is no point in setting aside a judgment if the defendant can[not] show merits, [if the defendant can show merits] the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication ...: at 3, per Pathik, J.

5.1 Insofar as the Magistrates Court determination not to set aside the default judgment, I have had reference to the authorities as to appeals against discretionary judgments: Fox v. Percy [2003] HCA 22; Hadmor Productions Ltd and Ors v. Hamilton and Anor [1982] 2 WLR 322; House v. The King [1936] HCA 40; (1936) 55 CLR 499 (17 August 1936); Joselyn Deo v. The State (CrimApp No. AAU0025 of 2005S, High Ct Crim Action No. HAA 008 of 2005S, 11 November 2005); Raibili v. Permanent Secretary, Ministry of Agriculture and Fisheries [2003] FJHC 43; Hbj0054j.1999s (13 March 2003); Satterthwaite v. Satterthwaite (1948) 1 All ER 343; State Rail Authority of New South Wales v. Earthline Constructions Pty Ltd (In Liq.) [1999] HCA 3; (1999) 73 ALJR 306; 160 ALR 588; Warren v. Coombes (1979) 142 CLR 531, [1979] HCA 9

5.2 I shall not traverse those authorities here, save as to say that upon all the material, and taking into account the lack of reasons provided in the Magistrates Court ‘Ruling’ along with the statement which appears in the Court Record as to ‘Judgment stands, no meritorious reason for setting aside’, I have no doubt that this is an appropriate case, consistent with those authorities, for this Court to set aside the Magistrates Court decision.

5.3 Having considered all the matters put forward by Counsel for Mr Chand and those advanced by Counsel for Ms Nand and Mr Nand, and having regard to all the material before me, including the whole of the Court Record – including the Magistrates Court ruling granting judgment in default and that refusing to set that judgment aside, it appears to me that discretion should be exercised in favour of the Defendants. The appeal should be upheld.

5.4 Counsel for Mr Chand raised, as noted, the need for leave to be sought by Ms Nand and Mr Nand to file and serve the proposed Defence and Counter Claim. To ensure that the matter proceeds and can be heard expeditiously, leave will be granted in this regard.

5.5 Further, it is advised that in all the circumstances the original Plaintiff, the Respondent to the Appeal (Mr Chand) wishes to file and serve an Amended Statement of Claim. Hence, this is incorporated into the Orders herein, with a timetable for expedition of the proceeding before the Magistrates Court.

6. Further Note

Counsel for Ms Nand and Mr Nand raised the matter of the Judgment in Default having been granted irregularly rather than regularly, this being put on a number of bases (and beyond the question of the lack of civil number on the documents served). This has not been addressed as the matter clearly comes within the ‘meritorious’ requirement for judgment to be set aside in any event.

6.1 The matter of conditions being placed upon the setting aside of judgment has not been raised and it does not appear to me that this is a case where such are called for. Both parties have sought costs. It is appropriate that costs in this matter should be in the cause.

ORDERS

1. The appeal is upheld.

2. The default judgment of 27 September 2006 is set aside.

3. Leave is granted to the Plaintiff/Respondent to file and serve an Amended Statement of Claim within 14 days of the date of these Orders, that is on or before 21 November 2008.

4. Leave is granted to the Defendants/Appellants to file and serve a Defence and Counterclaim within 14 days of the date of receipt of the Amended Statement of Claim that is on or before 5 December 2008.

5. The Plaintiff/Respondents to file and serve any Reply within 14 days of receipt of the Defence and Counterclaim, that is on or before 19 December 2008.

6. The matter to be listed for mention in the Magistrates Court at Lautoka or Nadi, as the case may be, at 9.30am on Monday 12 January 2009.

7. Costs in the cause.

8. Liberty to apply.

Jocelynne A. Scutt
Judge

Suva
7 November 2008

[1] The default judgment was entered in default of appearance, without reference to the failure to file documents including the Defence.