Bank of South Pacific Limited v Peter James Spencer [1983] PNGLR 239

• Jurisdiction: Papua New Guinea
• Judge: McDermott J
• Judgment Date: 22 July 1983
• Court: National Court
• Citation: [1983] PNGLR 239
• Year: 1983
• Judgement Number: N427

Full Title: Bank of South Pacific Limited v Peter James Spencer [1983] PNGLR 239

National Court: McDermott J

Judgment Delivered: 22 July 1983

1 Practice and procedure—National Court Rules O1 r9—irregularly obtained judgment—application to set aside—judgment set aside as matter of principle

JUDGMENTS AND ORDERS—Judgment irregularly obtained—To be set aside as matter of principle—National Court Rules, O1, r9.

A plaintiff issued a specially endorsed writ for liquidated damages and at the defendant's request delivered a statement of claim seeking therein unliquidated or pecuniary damages. The defendant having failed to file a defence within time the plaintiff obtained judgment for the liquidated damages endorsed on the writ. On an application to set aside the judgment;

Held:

(1) A judgment irregularly obtained should as a matter of principle be set aside.

RT Company Pty Ltd v Minister of State for the Interior (1957) 98 CLR 168; Commercial Traders Ltd v Furness (1962) 79 WN (NSW) 528; Turner & Son Pty Ltd v Rhodes [1970] 1 NSWR 305; and White v Weston [1968] 2 QB 647, adopted and applied.

(2) In the present case the pleadings had changed the claim from one of liquidated damages to unliquidated or pecuniary damages and the judgment was therefore irregularly obtained and should be set aside.

Cases Cited.

The following cases are cited in the judgment.

Anlaby v Praetorius (1888) 20 QB 764.

Commercial Traders Ltd v Furness (1962) 79 WN (NSW) 528.

Hughes v Justin [1894] 1 QB 667.

RT Company Pty Ltd v Minister of State for the Interior (1957) 98 CLR 168.

Turner & Son Pty Ltd v Rhodes [1970] 1 NSWR 305.

White v Weston [1968] 2 QB 647.

Summons.

This was an application made pursuant to the National Court Rules, O1, r9, to set aside a judgment irregularly obtained.22 July 1983

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McDermott J: This application is made pursuant to the new National Court Rules O1, r9, that the judgment was irregularly obtained.

The applicant defendant seeks to set aside the plaintiff's judgment obtained on 31 May 1983, in default of delivery of a defence. The judgment purports to be for the sum claimed in a specially endorsed writ served on 24 January 1983.

The defendant appeared to this writ on 1 February 1983 and requested a statement of claim be delivered. The plaintiff in complying with this request took out a summons for directions on the 11 February and the consent order on it was made on 4 March 1983 under which the plaintiff was to deliver a statement of claim within 28 days and within a further 28 days of its delivery the defendant would...