Christopher M Smith v Ruma Constructions Limited

• Jurisdiction: Papua New Guinea
• Judge: Sakora J
• Judgment Date: 02 August 2000
• Court: National Court
• Citation: (2000) N1982
• Year: 2000
• Judgement Number: N1982

National Court: Sakora J

Judgment Delivered: 2 August 2000

N1982

PAPUA NEW GUINEA

[In the National Court of Justice]

WS 481 of 1997

BETWEEN:

CHRISTOPHER M. SMITH

Plaintiff

AND:

RUMA CONSTRUCTIONS LIMITED

Defendant

Waigani: Sakora, J

2000: 19 July & 2 August

Practice and Procedure – Summary Judgment – Circumstances for and appropriateness of application for such – Test to be applied in considering such application – Application to set aside such judgment – Ex parte application - National Court Rules O. 2 rr. 37 & 39, O. 4, rr. 5 & 42, O. 12, rr. 8, 37, 38 & 40.

Cases Cited

The following cases are cited in the judgment:

The Chief Collector of Taxes v. TA Field Pty Limited [1975] PNGLR 144

Green & Co. Pty Ltd v. Green [1976] PNGLR 73.

The Government of PNG & Anor. v. Barker [1977] PNGLR 386

George Page Pty Ltd v. Malipu Balakau [1982] PNGLR 140

Tsang v. Credit Corporation [1993] PNGLR 112.

Dumm v. Sigere & Goroka LGC Unreported N1721 of 1997.

Ray v. Barker (1879) E Ex D 279

Harrison v. Bottenheim (1878) 26 WR 362

Daly v. Egan (1886)

Jacobs v. Booth’s Distillery (1901) 85 LT 262

Codd v. Delap (1905) 92 LT 510

Lawrance v. Norreys (1888) 39 Ch D 213

Burton v. Shire of Bairnsdate (1908) 7 CLR 76

Dyson v. Attorney-General [1911] 1KB 410.

Clark v. Union Bank (1917) 23 CLR 5.

Cloverdell Lumber Co. Pty Ltd v. Abbott (1924) 34 CLR 122

Australian Can Co. Pty Ltd v. Levin & Co Pty Ltd [1947] VLR 332

Dey v. Victorian Railways Commissioners (1948-49) 76 CLR 62

Fancourt v. Merchantile Credits Ltd (1983-84) 154 CLR 87.

Mr K. Pato for the Applicant/Defendant.

Mr P. Payne for the Respondent/Plaintiff.

2 August 2000

SAKORA J: This is an application by the defendant company to have the summary judgment entered against it on 10 November, 1997 set aside. The application is moved pursuant to a Notice of Motion filed 19 April 2000 seeking orders, firstly, to set aside the judgment, and secondly, have the defendant file its defence within fourteen (14) days; it also seeks directions of the Court for the further conduct of the proceedings.

The application is said to be made under O. 12, r. 8(2)(b) of the National Court Rules (NCR). I think it is convenient and instructive to set out the pertinent parts of the rule in full hereunder:

8. Setting aside or varying judgment or order.

(1) The Court may, on terms, set aside or vary a direction for entry of judgment where notice of motion for the setting aside or variation is filed before entry of the judgment.

(2) The Court may, on terms, set aside or vary a judgment –

(a) where the judgment has been entered pursuant to Order 12 Division 3 (default judgment); or

(b) where the judgment has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or

(c) where the judgment has been entered in proceedings for the possession of land pursuant to a direction given in the absence of a party and the Court decides to make an order that the person be added as a defendant.

(3) The Court may, on terms, set aside or vary an order –

(a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or

(b) where notice of motion for the setting aside or variation is filed before entry of the order.

(4) . . .

(5) . . .

Background

From the helpful chronology of events in this matter filed by learned counsel for the plaintiff as part of the plaintiff’s written submissions, the following circumstances surrounding the initiation of the proceedings and the present application emerge. And it is noted in this respect that these events are not disputed by the defendant. The plaintiff had issued out of the registry of the National Court a Writ of Summons on 27 May 1997. The Statement of Claim endorsed on the Writ sought specific performance of a sale of land pursuant to an agreement claimed to have been entered into between the parties in April 1996.

Together with the Writ of Summons was filed, on 27 May 1997, a Notice of Motion by the plaintiff seeking interlocutory injunctive order to restrain the defendant “from transferring, leasing or otherwise dealing with the land known as Part Lot 3, Section 27, Granville”. The usual undertaking as to damages had also been filed with the application. The order for injunction was made on 30 May and subsequently entered on 5 June 1997.

On 15 July 1997, the plaintiff filed a Notice of Motion seeking specific performance of the alleged agreement for sale of the subject property by the grant of an order requiring the defendant to perform certain specific acts or activities, on its own part. This Court is unable to determine from the file whether or not this Notice of Motion had been duly served on the defendant in accordance with the NCR: O. 4, r. 42 (service not less than three days before the date named in the notice for hearing the motion, which was 23 July 1997). It does not feature in the chronology of events.

In any case, the endorsements on the file demonstrate that the matter came before my brother Acting Justice Batari on 23 July 1997 when it was adjourned to 25 July 1997. Only the plaintiff’s lawyer appeared on that date. On 25 July 1997 the matter came before a different judge, my brother Justice Kirriwom. Once again there was no appearance by or on behalf of the defendant company. Be that as it may, the Court heard the motion and reserved decision till 30 July 1997. It would appear that the order for specific performance was granted on 30 July 1997. In the meantime, the defendant company had filed on its behalf, on 30 July 1997, a Notice of Intention to Defend by the first of its lawyers (Maladinas).

On 8 October 1997 the plaintiff had filed on his behalf a Notice of Motion for summary judgment. That notice designated 10 October 1997 as the day on which the motion would be heard. There is, this time, evidence of service of this Notice of Motion on the defendant company, but only one full day before the nominated hearing date (affidavit of service sworn 9 October 1997 by Waisale Tivuka, deposing to service having been effected on the company’s lawyers at 4.05 pm 8 October).

By a Notice of Change of Lawyers dated 14 and filed 15 October 1997, the firm of Patterson Lawyers became the defendant company’s lawyers in the proceedings. Its former lawyers then formally withdrew from the proceedings by filing a Notice of Ceasing to Act (presumably after being served the notice pursuant to O. 2, r. 38 (1) (a) and (b) NCR; otherwise Maladinas would have had to comply with the requirement for leave of the Court to withdraw, under O. 2, r. 39). The new lawyers then filed a Notice of Intention to Defend on 22 October 1997. Filed as well of even date were the defendant’s Notice of Motion together with the supporting affidavit of one Des Bogaart, sworn 21 October.

It is not clear whether the Notice of Intention to Defend was in respect of the originating process, the Writ of Summons, or the Notice of Motion by the plaintiff seeking summary judgment. The defendant’s notice merely stated: “... the Defendant intends to defend the proceedings herein”. In any case, in its Notice of Motion, the defendant sought orders, firstly, to have the 10 October 1997 orders in respect of its assets set aside, and, secondly, for leave to file its Defence.

As noted (supra) the supporting affidavit for the application “to set aside” was sworn by Mr Des Bogaart, the Managing Director of the defendant company. He deposed to the circumstances surrounding, from his perspective, the commencement of the relationship between the parties, and their communications with each other in respect of the subject property. It is a somewhat detailed affidavit consisting of twenty-four paragraphs and has annexed to it (and relies upon) nine documents. The deponent was and is the responsible officer directly and intimately involved in the negotiations and communications in this matter on behalf of the company, and, thus, was “speaking” from his own personal knowledge and information.

The defendant’s affidavit adverted to and dealt with each of the factual issues (assertions) in the plaintiff’s Statement of Claim. These had (have) to do with the well-recognised elements of a legally binding agreement: offer, acceptance and consideration (and associated features in between). For his part, the plaintiff has filed (and relies upon) his own equally detailed affidavit (some twenty-nine paragraphs and eight documents as annexures), sworn 26 May 1997. The assertions in the Statement of Claim are intended to have been substantiated and elaborated upon in and by this affidavit.

A quick check on the endorsements on the Court file reveals that the plaintiff’s application for summary judgment was finally heard by my brother Woods J on 10 November 1997. His Honour ordered summary judgment to be entered against the defendant on liability and that damages be assessed. As well...