Devon Hayles dba Midtown Mall v Osias Joseph dba Platinum Fitness and Anor. (CL-AP 6 of 2023) [2024] TCACA 3 (29 February 2024)

Case summary

This is an appeal against a judge’s refusal to set aside a default judgment. By a lease dated 17th June 2021, the Respondent leased commercial premises to the Appellant for a term commencing on 3rd January 2021 and expiring on 31st December 2021, at a rent of US$4,000.00 per month. The Appellant remained in possession of the leased premises after the lease expired, without the Respondent’s consent, and eventually vacated the premises on or about 18th March 2022.

On 18th May 2022 the Respondent issued a specially endorsed writ claiming: a. Mesne profits in the amount of US$12,000.00 for the months of January, February and March 2022; b. Reimbursement of US$320.00 for bank charges the Respondent incurred as a result of rental cheques that were dishonoured when presented for payment; c. “Special damages for repairs” in the amount of US$16,525.00; d. Interest on the sums claimed; and e. “Costs in the claim. 

The writ was served on the Appellant on 8th November 2022 and on 29th November 2022 he filed an acknowledgment of service indicating an intention to defend the claim. Not having received a response or a defence, on 19th December 2022 the Respondent’s attorney filed a request for judgment in default to be entered. On the following day (20th December 2022), the Registrar entered a default judgment in the sum of US$28,845.00 (i.e., the total of the sums set out in paragraph 5 above), with interest at 3% from the issue of the writ to the date of judgment, and at the judgment rate thereafter, and costs to be taxed. 

On 3rd February 2023 the Appellant filed a summons seeking an order setting aside the default judgment and unconditional leave to defend. He contended that the judgment was irregular in various respects and so should be set aside ex debito justitiae. Alternatively, he argued that the draft defence and counterclaim he exhibited in support of his summons disclosed a good arguable defence, and that the court should set aside the default judgment in the exercise of its discretion.

Gruchot J dismissed the summons. He held that the default judgment was not irregular, and that nothing in the proposed defence had a real prospect of success. However, the learned judge also concluded that the conduct of the Respondent’s attorney and the circumstances in which the default judgment was entered constituted sharp practice and an abuse of the court process.

The Appellant appeals to this court against the decision to dismiss his application. In addition to relying on the same grounds he had argued in the court below, the Appellant also submits that having concluded that the Respondent’s attorney used sharp practice in entering the default judgment, the learned judge erred in allowing it to stand.

Held: I would allow the appeal, set aside the judge’s order and the default judgment, and grant the Appellant unconditional leave to defend. The default judgment was irregular because it included the sum claimed for repairs which was not a liquidated claim and pre-judgment interest which had not been pleaded. In my view, the judge was wrong to conclude that the Respondent’s attorney was guilty of sharp practice and abusing the court’s process. The judge was right to hold that no claim in detinue was made, and to hold that this was not a basis to set aside the default judgment. The inclusion of the amount claimed for mesne profits was not an irregularity.

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