Fortune Foods Company Ltd Claimant v Ian Calliste (Trading as Just Plastics) Defendant [ECSC]

• Jurisdiction: Grenada
• Judge: Price Findlay, J.
• Judgment Date: 06 July 2010
• Judgment citation (vLex): [2010] ECSC J0706-2
• Court: Supreme Court (Grenada)
• Docket Number: Claim No. Gdahcv 2010/0105
• Date: 06 July 2010

[2010] ECSC J0706-2

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(CIVIL)

Claim No. Gdahcv 2010/0105

Between:

Fortune Foods Company Limited

Claimant

and

Ian Calliste (Trading as Just Plastics)

Defendant

Civil Procedure Rules 2000 — Application to set aside judgment obtained in default of defence — Good explanation for failure to file a defence — Real prospect of defending claim

RULING

1 Price Findlay, J.; This is an application to set aside a default judgment entered on the 7^th April 2010, The application filed on the 26^th April 2010 is supported by the affidavit of Ian Calliste and filed on the same date. The Claimant has opposed the application and has filed an affidavit in opposition thereto.

Price Findlay, J.

2 The background to the matter is as follows:

The Claimant brought these proceedings against the Defendant by Claim Form and Statement of Claim filed on the 1^st May 2010, seeking damages for breach of covenant, in particular, the non payment of rent, breach of covenant to repair premises and the non payment of utilities, pursuant to an agreement made between the parties on or about March 1,2003.

3 An Acknowledgment of Service was filed on behalf of the Defendant on the 8^th March 2010, in which he indicated that he intended to defend the claim, and in which he admitted no part of the claim. The defence was due to be filed by the 1^st April 2010, No defence was filed by the Defendant.

4 On the 7^th April 2010 the Claimant filed a Request for Entry of Judgment in default of defence. Nineteen days later, on the 26^th April 2010, an application for inter alia an extension of time to file the defence and for the judgment entered to be set aside was filed by the Defendant. It was accompanied by the affidavit of the Defendant.

5 The Claimant filed an affidavit opposing the Defendant's application for the extension of time and for setting aside the default judgment. The Claimant's representative asserted that the Defendant has not proffered a good explanation for the failure to file his defence within the time stated in the Rules, and that the Defendant had failed to apply for an extension of time to file his defence pursuant to CPR 10.3, but included in this application before this Court is such an application. The Claimant has also challenged the validity of the explanation given by the Defendant as to why he was unable to file his defence within the stipulated time. The Defendant replied to the Claimant's affidavit giving reasons why he failed to file his defence in time.

6 Judgment in default was entered in the following terms;

"The Defendant IAN CALLISTE (trading as JUST PLASTICS) having the Claim Form and Statement of Claim served on him on the 4^th day of March 2010, and the said IAN CALLISTE having not filed a Defence.

It is ordered that judgment be entered for the Claimant for:

1. Amount claimed	$51,733.33
2. Court Fees on claim	25.00
3. Legal Practitioner's fixed costs on issue	1,500.00
4. Personal Service of Claim Form	100.00
5. Court Fee on entering judgment	2,50
6. Legal Practitioner's fixed costs on entering judgment	350.00
7. Interest from date of issue to today @ a daily rate of $8.50	323.16

7 CPR 13.3 sets out the criteria for a successful application to set aside a default judgment. The Defendant has to:

• (a) apply to the Court as soon as reasonably practicable after finding out that judgment has been entered;

• (b) give a good explanation for failure to file an acknowledgment of service or defence, as the case may be; and

• (c) has a real prospect of successfully defending the claim.

8 The power to set aside a judgment is a discretionary power.

9 Looking at the case ofLouise Martin (as widow and executrix of the estate of Alexis Martin deceased) v Antigua Commercial Bank and Earl Hodge v Albion Hodge, the Courts have found that periods of fifteen and thirteen days between being served with the judgment and filing the application to set aside were reasonable.

[9] Here in this case the Defendant was served with the judgment on the 21^st of April 2010; the application to set aside was filed on the 26^th April 2010, within five days of service.

10 Counsel for the Defendant submitted that the Defendant has given a good explanation for the failure to file the defence.

11 The Defendant asserts that he was instructed by Counsel to obtain receipts, photographs, police reports and other documentary evidence in respect of his defence to this claim.

12 He alleges that he was unable to gather all the information requested by Counsel within the time period prescribed by the Rules.

13 He further alleges that despite this difficulty a draft defence was prepared for filing....