Choo Loi Poi Choo Liu Yue Xin Claimants v Donald Frederick Defendant [ECSC]

• Jurisdiction: Grenada
• Court: High Court (Grenada)
• Judge: MICHEL, J. (Ag.)
• Judgment Date: 02 June 2009
• Judgment citation (vLex): [2009] ECSC J0602-1
• Docket Number: CLAIM NO. GDAHCV2008/0556
• Date: 02 June 2009

[2009] ECSC J0602-1

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(CIVIL)

CLAIM NO. GDAHCV2008/0556

Between:

Choo Loi Poi Choo Liu Yue Xin

Claimants

and

Donald Frederick

Defendant

Appearances:

Ms. Sabrita Khan for the Claimants

Ms. Cindy John for the Defendant

IN CHAMBERS

MICHEL, J. (Ag.)

1 By claim form filed on 14 ^th November 2008 the Claimants, Choo Loi Poi and Choo Liu Yue Xin, commenced action against the Defendant, Donald Frederick, seeking an injunction, damages, specific performance and further or other relief. Also filed by the Claimants on that date was a statement of claim setting out the claim in full and several exhibits in support of the claim.

2 On 9 ^th January 2009 the Defendant filed a defence and counterclaim denying the Claimant's claim against him and claiming damages, an injunction, costs and further or other relief against the Claimants.

3 On 12 ^th March 2009, no defence to the Defendant's counterclaim having been filed by the Claimants, the Defendant filed a request for entry of judgment in default of defence to counterclaim.

4 On 13 ^th March 2009 the case came before a Judge in Chambers and it was ordered that the matter take its normal course pending the determination of the application by the Defendant for final judgment on the counterclaim.

5 On 20 ^th April 2009 the Claimant filed a reply and defence to counterclaim joining issue with the Defendant on his defence and counterclaim.

6 Several issues of significance to this case took place between the filing of the defence and counterclaim on 9 ^th January 2009 and the filing of the reply and defence to counterclaim on 20 ^th April 2009. These included the filing on 4 ^th February of a notice by Messrs R. C. Benjamin & Co. that they had ceased to act as attorneys for the Claimants in the matter, the filing of the request by the Defendant for entry of judgment in default and the entering of a final judgment in default of defence to counterclaim on 12 ^th March, the appearance in the matter on 13 ^th March of Messrs G. E. D. Clyne as Legal Practitioners for the Claimants and the filing by them on 20th April of notice of change of Attorney-at-Law.

7 In the result, the reply and defence to counterclaim filed by the Claimants on 20 ^th April is not now valid, having been filed nearly six weeks after the entry of a judgment in default of its filing.

8 Against this background, on 8 ^th May 2009 the Claimants filed a notice of application seeking an order that the default judgment entered in this matter on 12 ^th March 2009 be set aside.

9 The Claimants' application is supported by an affidavit by the Claimants and is accompanied by a draft of the order that the Claimants seek.

10 The Claimants' application was heard in Chambers on 26 ^th May 2009.

11 Learned Counsel for the Claimants submitted that the application was brought under Part 13.3 (1) of the CPR, which requires that three conditions must be satisfied for the application to be granted. Counsel argued that the first condition was satisfied because the Claimants made the application to the Court as soon it was reasonably practicable, having on 23 ^rd April 2009 discovered that judgment was entered against them. According to the Claimants' affidavit in support of the application, the judgment in default was served on Counsel for the Claimants on 23 ^rd April.

12 Counsel referred to the BVI case of Earl Hodge v Albion Hodge1 where Hariprashad-Charles, J. held that a delay of 13 days between service of a default judgment and the filing of an application to set it aside was reasonable and that the defendant in that case had therefore satisfied the threshold requirement of CPR 13.3 (1) (a).

13 Learned Counsel reiterated paragraph 5 of the Claimants' affidavit wherein it was stated that the Claimants were previously represented by other Counsel in the matter and that differences arose between the Claimants and their Counsel.

14 Learned Counsel submitted that the Claimants have a real prospect of successfully defending the Defendant's claim. The matter she says is really a dispute over land in respect of which both parties have conveyances.

15 Counsel submitted that the defence which will be filed if the default judgment is set aside is the reply and defence to counterclaim filed on 20 ^th April 2009 at a time that the Claimant was unaware that a default judgment had been entered.

16 Counsel also submitted that there would be no prejudice to the Defendant if the Court were to set aside the default judgment since the Claimants' claim against the Defendant involving the same issues is still to be determined by the Court.

17 The Defendant opposed the application to set aside the default judgment on two grounds. Firstly, that the Claimants' notice of application failed to disclose the ground or grounds for making the application and amounted to an abuse of the process of the Court and, on this basis, the application should be dismissed. Secondly, that the Claimants had not...