Barlow Industries Pty Ltd v Pacific Foam Pty Ltd

• Jurisdiction: Papua New Guinea
• Judge: Los J, Konilio J, Brown J
• Judgment Date: 19 August 1993
• Citation: [1993] PNGLR 345
• Court: Supreme Court
• Year: 1993
• Judgement Number: SC454

Supreme Court: Los J, Konilio J, Brown J

Judgment Delivered: 19 August 1993

SC454

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA NO. 71 OF 1992

BETWEEN:

BARLOW INDUSTRIES PTY LIMITED

Appellant

AND:

PACIFIC FOAM PTY LIMITED

Respondent

Waigani : Los, Konilio & Brown JJ.

1993 : 22 Feb

: 19 Aug

Practice and Procedure — Judgment by default — Statement of claim including various types of prayer for relief — Whether "liquidated claim" part of prayer — What are "mixed claims".

Appeal — From decision of National Court refusing to set aside judgment by default — Equitable claim does not fall within the understood "liquidated amount" — Need to be able to quantify claim on material in statement for "mixed claims" to be included in such statement of claim — A claim for '"account, damages or alternatively the sum of K213,062.30"' pleaded as a "mixed claim".

Held: (i) Before judgment by default can be signed, the plaintiff must clearly have pleaded a claim which can be categorised as "liquidated".

Dempsey -v- Project Pacific Pty Ltd (1985) PNGLR; 93 applied.

Spain -v- The Union Steamship Co. of New Zealand Ltd (1923) 32 C.L.R. 138 followed.

(ii) A claim for account relying on the payment of insurance moneys to the defendant on behalf of the plaintiff and seeking to prove an agency agreement between the plaintiff and the defendant on dealings partly written, oral and to be implied does not admit of easy quantification and cannot be categorised as "liquidated".

(iii) While "mixed claims" are envisaged and allowed by the National Court Rules the plaintiff must still frame his claim for a liquidated amount in such a fashion that the amount claimed can be ascertained clearly from the material pleaded, and in this case the plaintiff had not done so.

Watson Specialised Tooling Pty Ltd -v- Stevens (1991) 1QdR 85 followed.

National Court Rules O. 12 r.r. 27,28, 31,32.

Appeal

This was an appeal from Sir Mari Kapi, DCJ refusing to set aside a judgment obtained by default.

Mr P. Payne, for the Plaintiff

Mr C.J. Coady, for the Respondent.

RULING

LOS J: I have read the judgment of Brown J and agree with him. I would upheld the appeal.

KONILIO J: I would uphold the appeal for the reasons given in Brown J's judgment.

BROWN J: The appellant originally claimed relief in his writ of summons in these terms:-

"And the Plaintiff claims -

A. An account of how the Defendant has used or
applied the sum of K213,062.30.

B. Damages, alternatively the sum of K213,062.30.

C. Aggravated or exemplary damages.

D. Interest on any sum found to be due pursuant to
the Judicial Proceedings (Interest on Debts and
Damages) Act.

E. An order for payment by the Defendant to the
Plaintiff of all monies found to be due to him on
the taking of an account.

F. Further or other relief".

On the 28 April 1992, judgment in default of the defendants appearance or defence was entered for 213,062.30 plus costs of K180. No other steps were taken by plaintiff to pursue other claims.

On 15 May 1992, by motion, the defendant sought to set the default judgment aside. The motion was heard by Sir Mari Kapi DCJ in the National Court on the 1 & 3 June and was dismissed. The Deputy Chief Justice dealt with two grounds relied on by the defendant in its motion. The first was that a claim for both a liquidated amount and a claim for unspecified damages could not be joined in a statement of claim. The Judge relied on the nationale expressed in Watson Specialised Tooling Pty Ltd v Stevens (1991) 1 QdR 85 quoting @ 93 -

"What is the plaintiff's claim in the writ to which the defendants did not appear? It seems to me that the defendants have admitted either the liquidated demand of $291,823.20 or the alternative claim for damages for commission, but not both. They are entitled to say that the Court will not permit judgment to go against them for both but only one of them as they are claimed in the alternative".

and was satisfied the plaintiff was entitled to and had, elected. He said -

"In accordance with (the quoted passage in Watsons case) it is proper to enter for the liquidated sum but not for both. This is not irregular".

In argument before us the appellant/defendant has pointed to various rules of Court which he says, illustrate why the trial Judge was in error. O 12 rr 27, 28 while dealing with liquidated and unliquidated demands, are qualified by r 31. That rule (dealing with mixed claims) provides for a plaintiff to have judgment in respect of a particular claim where the plaintiff's claim for relief includes two or more of the particular claims, called "mixed claims" and no other claim, as if that were the plaintiffs only claim for relief against the defendant.

In fact the statement of claim as can be seen, included a claim for an account and subsequent payment of such monies found to be due, claims not falling within the categories dealt within r. 31 as "mixed claims".

But O 12 r. 32 provides generally that where a plaintiff claims relief, the rule permits a Court to direct entry of such judgment against a defendant as the plaintiff appears entitled to on his writ.

Having obtained judgment for a liquidated amount pleaded, a plaintiff would be prevented from seeking orders for account pursuant to r.32, for those orders can only be in the alternative on the pleadings.

Facts

The amount of the default judgment in K213,062.30 relates to writ of summons proceedings with an endorsed statement of claim by the plaintiff alleging that the defendant had and received money from E.C. Heath (Insurance Broking) Limited for the use of the plaintiff and had neglected or refused to pay the sum to the plaintiff. In the alternative, the plaintiff pleaded that the defendant was the agent of the plaintiff and had failed to account. While the plaintiff couched its prayer for relief to include one seeking an account, it went on to claim damages, "alternatively the sum of K23,062.30".

In addition it sought aggravated or exemplary damages, interest and costs.

The writ bore an endorsement under O.8 r 24 requiring the defendant to verify his defence. There was no defence filed within the time prescribed and the plaintiff entered default judgment on the 28 April 1992. By motion of the 5 May 1992, the defendant sought to set aside the default judgment and Sir Mari Kapi, DCJ on the 3 June refused the motion.

The motion was on two grounds. Firstly it was argued that the judgment was irregular in that the writ included other claim as well as a liquidated claim, contrary to the provisions of O. 8 r 24 and secondly if that argument failed the defendant had shown a defence on the merits, (there having been proper explanation for the failure to defend within time).

The Trial Judge found that entry of default judgment was not irregular, in these circumstances and that the defendant had failed to show a defence on the merits.

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