Royal Bank of Canada Plaintiff v 1. Benetton (St. Lucia) Ltd 2. Traci Betts Defendants [ECSC]
| Jurisdiction | St Lucia |
| Judge | Matthew J |
| Judgment Date | 02 October 1996 |
| Judgment citation (vLex) | [1996] ECSC J1002-11 |
| Court | High Court (Saint Lucia) |
| Docket Number | SUIT NO. 143 of 1995 |
| Date | 02 October 1996 |
IN THE HIGH COURT OF JUSTICE
(CIVIL)
A.D. 1996
SUIT NO. 143 of 1995
.(In Chambers).
On February 21, 1995 the Plaintiff filed a writ of summons indorsed with statement of claim asking for a sum of money in excess of 5400,000 plus interest and costs being debts owing to the Plaintiff by the Defendants.
The writ of summons was served on the Defendants on March 7, 1996 and three days later they filed an entry of appearance. On July 4, 1995 Arthur Isidore swore to an affidavit that he had served the Defendants with the writ of summons and on July 13, 1995 the Plaintiff entered judgment in default of defence.
On August 1, 1995 the Defendants took out a summons upon an application to set the judgment aside. The summons was supported bv an affidavit of Traci Betts and several exhibits were appended
At paragraph 2 and 3 of the affidavit the deponent alleged that the Plaintiff had sued Benneton (St. Lucia) Limited and not Benetton (St. Lucia) Ltd, the correct name of the company, and so the judgment entered is erroneous. Quite frankly I do not take this objection seriously which seems to be catching at straws and in any case I find it was correctly answered by paragraph 2 of the affidavit of Stanley Ernest Hulse, Manager of the Plaintiff, filed on November 6, 1995.
Paragraphs 5 to 16 of Betts' affidavit refer to details of correspondence between the solicitors of the Parties. It is sufficient to state that the Plaintiff's solicitor gave a lot of accommodation to the Defendants to be permitted to file a late defence. The Defendants were requesting of the Plaintiff the documentation to be used by the latter in support of its case. By letter of June 9, 1995 the Plaintiff seems to have provided the necessary documentation and requested that the defence be filed and served not later than June 16, 1995.
The Defendants did not comply. They seem to be giving as the reason or one of the reasons the fact that about that time the Registry Office was on strike but they admitted in Betts' affidavit that the Staff of the Registry returned to work on July 3, 1995, yet by July 5, 1995 they were still asking for further accommodation to July 14, 1995 by which time they would file the defence.
Evidently the Plaintiff was not willing to give such further accommodation and on July 13, 1995 the judgment in default of defence was filed. I hold that the default judgment was regular.
But that does not mean that the Defendants could not apply to set the judgment aside and they seem to have done that by paragraph 17 of the affidavit of Traci Betts. One of the exhibits to this affidavit is a draft defence.
By paragraph 2 of that defence, the Defendants seem to be denying that the first-named Defendant owes the Plaintiff the sums claimed. In respect of the claim against the second-named Defendant it is alleged that there was no consideration for the guarantee and/or in the alternative, the Plaintiff wrongfully procured and induced the second-named Defendant to sign and execute the document by way of undue influence and they say the guarantee is null and void.
By way of reply to paragraph 17 of the affidavit on behalf of the Defendants, the Plaintiff filed two affidavits by two of their managers. John Miller seems to have been a former manager. His affidavit was filed on November 6, 1995. Paragraphs 2 to 9 of Miller's affidavit answer the particulars of the defence. There appears to be in effect a conflict between the pleadings and the affidavit evidence. Paragraph 10 of the affidavit states that in the circumstances outlined in the previous paragraphs the second-named Defendant has failed to establish a prima facie defence to the action and so the default judgment should be upheld and the application by the Defendants should be dismissed.
Stanley Ernest Hulse seems to be the succeeding manager. He also had an affidavit filed on November 6, 1995. In paragraph 6 of his affidavit he gives the reasons why the Defendants do not have a prima facie defence to the action on the merits to warrant the setting aside of the default judgment. Again this is based on his version of the facts. For example, he says there was good consideration for the guarantee. The Defendants dispute that in the particulars of their defence. In his affidavit at paragraph 6(ii) he states in part:
"as the second-named Defendant was not a cohabitee who was induced to sign a guarantee to secure a loan advanced to the second-named Defendant's cohabitee".
But the contrary is stated in the said particulars of the defe.
What he said at paragraph 6(iii) is based on his view at 6(ii) and carries the matter no further; and what he says at paragraph 6(v) is equally disputed and the letter dated September 4, 1992 from Betts to the Bank does not necessarily support the fact that the debts were incurred by the second-named Defendant. Paragraphs 6(vi) to 6 (x) are equally disputable.
And it is on the basis of his view of the facts that he is asking that the default judgment be upheld and the application of the Defendants be dismissed.
The Plaintiff's request is premised on the fact that everything that has been said in the affidavits made on its behalf are true. 1 have no doubt that the two managers are men of repute but it would be strange and perhaps dangerous if allegations in a pleading could be discarded so easily and a judgment maintained by affidavit evidence which have not been tested by cross-examination.
Learned Counsel for the Defendants was quite terse in his submissions to set aside the default judgment. He however referred to "the New Civil Court in Action" by David Barnard at pages 96-97. The passage states in part :
"Where judgment is regular it is standard practice to file an affidavit stating why judgment was allowed to be entered (e.g. mistake, delay etc.) and showing that the defendant has a prima facie defence to the action or there is some triable issue (otherwise it would be a pointless exercise to set the...
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