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his broker, who he expected to forward it on to his insurer
so that the claim could be assessed and dealt with.
For reasons that are plainly beyond the first
applicant’s ken , the summons was not dealt with by the
insurer. It was in fact lost somewhere between the first
applicant’s broker and the insurer.
The first applicant had no further notification that
default judgment had been granted on the summons, until a
writ of execution was served on upon him . T he first and the
second applicant now seek to rescind the default judgment .
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They say that neither of them was in wilful default of
appearance and that they have a defence in the main action
which stands some prospect of success.
Most of the argument before me today revolved
around whether there had been an adequate explanation of
the applicants ’ default. Mr Kruger , who appeared for the
respondent , made the point that the confirmatory affidavits
from the first applicant’s broker do not adequately explain
what happened once the summons was handed on to them
by the first applicant.
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In my view, on the facts of this case, the first
applicant cannot be expected to give a detailed explanation
of how the summons fell between the cracks after it was
sent to his broker. He has no knowledge of that and could
not reasonably have been expected to acquire that
JUDGMENT
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3
knowledge, since he was given no indication that anything
was wrong until after the default judgment was granted.
In contracts of insurance of this nature, the insured is
not merely entitled but is obliged to pass on any process in
which damages in connection of a motor vehicle accident
are claimed to their broker or their insurer . On discharge of
that obligation, they are reasonably entitled to expect the
claim will be dealt with appropriately by their insurer .
If there was any sign that anything had gone wrong
before the default judgment in this case was granted , and if
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that indication came to the attention of the applicants,
things would be different. But that is not what happened.
The first applicant handed the summons on and expected it
to be dealt with. It was not dealt with. He does not know
why it was not dealt with and he had no reason to suspect it
had not been dealt with until well after the default judgment
was granted. In those circumstances, it cannot be said the
that either of the applicants was in wilful default.
T he founding affidavit sets out the applicants’
defences to the main claim fairly sparsely, but Mr. Kruger
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accepted that the facts disclosed there would, if proved at
trial, constitute a defence to the claim.
I now turn to the question of costs. An applicant for
rescission seeks an indulgence and would usually have to
pay the costs of the rescission proceedings, unless there