Kappo No 5 Pty Limited and Jenny Chi In Hau Charles Chan Cho Yau v James Chi Kung Wong and Kuien Mi Wong

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Los J, Salika J
• Judgment Date: 23 May 1997
• Court: Supreme Court
• Year: 1997
• Citation: [1998] PNGLR 544
• Judgement Number: SC520

Supreme Court: Kapi DCJ, Los J, Salika J

Judgment Delivered: 23 May 1997

SC520

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA NO. 21 OF 1996

BETWEEN:

KAPPO NO. 5 PTY LIMITED

First Appellant

AND:

JENNY CHUN HAU

CHARLES CHAN CHO YAU

Second Appellants

AND:

JAMES CHI KUNG WONG

First Respondent

AND:

KUEN MI WONG

Second Respondent

Waigani: Kapi DCJ, Los J, Salika J

11 March, 23 May 1997

Summary judgment — proper principles considered — judgment entered

where facts are admitted — where claim is based on fraud, summary judgment is not applicable.

D. Lightfoot for the Appellants

G. Shepherd for the Respondents

23 May 1997

By The Court. This is an appeal from a decision of His Honour Mr Justice Sheehan dated 28 February 1996 in which he entered summary judgment . The background to the entry of judgment is as follows. Kappo No 5 Pty Ltd (hereinafter referred to as the First Appellant) is a company incorporated in Papua New Guinea under the provisions of the Companies Act (Cap. 147). Mr. James Chi Kung Wong (hereinafter referred to as the First Respondent) and Mrs. Kuem Mi Wong (hereinafter referred to as the Second Respondent) are citizens of Hong Kong carrying on business in Papua New Guinea. They entered into a business arrangement whereby they were designated Managers of the first appellant and were also signatories to the first appellant's accounts which were established and kept at the Waigani Branch of ANZ Bank Ltd. They were authorised to sign and cash cheques upon authority and direction given by the Board of Directors of the first appellant. It is alleged that the respondents signed and cashed a cheque to the value of K142, 508. 42 without the authority of the Board of Directors of the first appellant. The first appellant issued a writ of summons against the respondents for the recovery of the money in question.

On 19 January 1996 the first appellant obtained an order in the National Court retaining the amount of money in question at the Waigani Branch of ANZ Ltd.

On 30 January 1996 further orders were made by the National Court directing the respondents to pay in to Court K142, 508. 42. On the same date further orders were made to join other parties in the proceedings; Jenny Chun Yuk Hau as first Cross-defendant, Charles Chan Cho-Yau as Second Cross-defendant (hereinafter referred to as the Second Appellants), Abel King Investments (PNG) Pty Ltd as third Cross-defendant and Kappo No 5 Pty Ltd as Fourth Cross Defendant (First Appellant). These orders were made before the defence and cross-claim was filed.

On 15 February 1996 the respondents filed their defence and cross claim. In so far as is relevant to the present appeal, the respondents in paragraph 21 to 24 claimed that the amount of money particularised in paragraph 16 was held in trust for the first respondent. The respondents have made alternative claims; claim of debt in paragraphs 27 to 32 and a claim based on fraud in paragraphs 33 to 43. The respondents make a cross claim for K413, 000.00 and HKS1, 130, 000.00.

On 20 February 1996 the respondents filed notice of motion for summary judgment in respect of the respondent's cross claim. On 28 February 1996 summary judgment was entered against the first and second appellants in the sum of K500,000.00.

The appellants have appealed against this decision. The grounds of appeal raise questions relating to the proper application of O 12 r 38 of the National Court Rules (hereinafter referred to as the Rules):

"38. Summary judgement.

(1) Where, on application by the plaintiff in

relation to any claim for relief or any part of any claim for relief of the plaintiff-

(a) there is evidence of the facts on which

the claim or part is based; and

(b) there is evidence given by the plaintiff

or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed, the Court may, by order, direct that entry of such judgement for the plaintiff on that claim or part, as the nature of the case requires.

(2) Without limiting Sub-rile (1), the Court may

under that Sub-rule direct the entry of judgement for the plaintiff for damages to be assessed.

(3) In this rule, 'damages' include the value of

goods."

The principles relating to the application of this rule are well settled in this jurisdiction. It is sufficient to refer only to a decision of the Supreme Court. In Tsang v Credit Corporation [1993] PNGLR 112 at 117 the Court said:

" There are two elements involved in this rule:

(a) evidence of the facts proving essential elements of the claim; and

(b) that the plaintiff or some responsible person gives evidence that in his belief there is no defence.

In this case, there is no issue in...