A perfected judgment cannot be reheard or struck out in the same proceeding; allegations of fraud must be pursued through a fresh action, and brokers owe a duty of care in arranging insurance.

[1] This case has an unusual history, as narrated by both counsel in their respective written submissions. Serac Asia, the plaintiff in the High Court (now appellant) issued a writ a summons against the defendant, Sepakat (now respondent), claiming for damages arising from the alleged negligence of the respondent under an insurance arrangement. The respondent failed to enter an appearance to that writ resulting in the appellant obtaining a judgment in default on the suit.

[2] The respondent then filed an application to set aside the default judgment on 28 April 2006 (encl 6 in the High Court). This was dismissed by the Deputy Registrar on 22 June 2006, and later on appeal, by the judge on 10 October 2006.

[3] The respondent then appealed to the Court of Appeal which on 6 April 2010, maintained the default judgment in respect of liability and referred the matter back to the High Court for assessment of damages.

[4] The respondents application for leave to appeal was dismissed on 18 August 2010 by the Federal Court.

[5] When the matter was fixed for hearing on the assessment of damages, the respondent filed an application (encl 29) to strike out the suit based on fraud and lack of locus standi of the appellant and to adduce fresh evidence to prove the basis of the striking out application. Enclosure 29, it must be noted, is not a fresh action but a summons in chambers filed to strike out a regularly obtained judgment in default. In other words, it was an application to strike out a writ filed subsequent to a judgment. Enclosure 29 is the subject matter of the appeal now before us.

[6] On 14 October 2011 the High Court allowed the respondents application vide encl 29, resulting in the striking out of the appellants statement of claim and writ. The effect of that decision was to nullify the previous order of the High Court in allowing for a judgment in default, which had been affirmed right up to the Federal Court.

[7] The appellant appealed to the Court of Appeal. Its appeal was dismissed on 8 March 2012.

[8] The appellant subsequently succeeded in applying for leave from the Federal Court which, on 7 August 2012, allowed the following five questions of law to be examined viz:

Q1: Can a suit wherein a judgment (in respect to liability) has been held valid by the Court of Appeal and Federal Court be subsequently struck out summarily by the High Court? Isnt the Court functus officio in relation to a judgment which has been entered in the same suit?

Q2: Can a High Court impeach a judgment based on an allegation of fraud in the same proceedings in an application in chambers vide affidavit evidence?

Q3: Whether a party seeking to impeach a judgment based on fraud must file a fresh action and prove the alleged fraud and the burden of proof required?

Q4: Does an assured have a cause of action against their insurance broker in contract and tort for professional negligence and breach of duty of care in arranging the insurance needs of the assured for an aircraft to be purchased by the assured?

Q5: Does a question of insurable interest arise in a claim by the assured against the insurance brokers based on negligence or as opposed to a claim by the registered owner of the aircraft against the final insurers?

[9] It was common ground that:

(a) there is no dispute that the respondent was the insurance broker of the appellant;

(b) the appellant knew of the risks covered and paid the pr