Kumul Builders Pty Ltd v Post and Telecommunication Corporation [1991] PNGLR 299

• Jurisdiction: Papua New Guinea
• Judge: Sheehan J
• Judgment Date: 16 August 1991
• Court: National Court
• Citation: [1991] PNGLR 299
• Year: 1991
• Judgement Number: N1000

Full Title: Kumul Builders Pty Ltd v Post and Telecommunication Corporation [1991] PNGLR 299

National Court: Sheehan J

Judgment Delivered: 16 August 1991

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KUMUL BUILDERS PTY LTD

V

POST AND TELECOMMUNICATION CORPORATION

Waigani

Sheehan J

12 August 1991

16 August 1991

PRACTICE AND PROCEDURE — Summary judgment — Facts not disputed — Determination of points of law to be made — National Court Rules, O 12, r 38.

BUILDING AND ENGINEERING CONTRACTS — Construction and effect — Performance bond — Release on certificate of substantial completion — Release obligatory.

Held

On an application for summary judgment under O 12, r 38 of the National Court Rules, where the facts are not in dispute, the Court should determine any point of law which may finally settle matters between the parties.

European Asian Bank v Punjab Sind Bank (No 2) [1983] 1 WLR 642; [1983] 2 All ER 508, adopted and applied.

Held further

A clause in a building contract which provided that "within seven days after the receipt of the Project Manager's certificate of substantial completion as referred to in clause 10.9 the Principal shall by notification in writing, advise the sureties accordingly. All moneys held as security against the satisfactory discharge of the contract shall be refunded within seven days" was to be construed as requiring obligatory payment on advice of completion to the sureties, sufficient to enter summary judgment thereon.

Cases Cited

European Asian Bank v Punjab Sind Bank (No 2) [1983] 1 WLR 642; [1983] 2 All ER 508.

Imak International Pty Ltd v Pacific Wholesale Freezers Pty Ltd (N976, unreported).

Westminster Corporation v Jarvis & Sons [1970] 1 WLR 637; [1970] 1 All ER 943.

Motion

This was an application for summary judgment under O 12, r 38 of the National Court Rules.

Counsel

P Steele, for the plaintiff.

A Marat, for the defendant.

Cur adv vult

16 August 1991

SHEEHAN J: Before the Court is an application for summary judgment. The applicant, the plaintiff, is a building contractor which contracted with the defendant to construct certain buildings for the sum of K799,600.96.

Pursuant to a condition prescribed by the contract between the parties, the plaintiff also supplied a bond to ensure due performance of the work. It is the plaintiff's contention that though the work has now been duly carried out the defendant has failed to release the bond. The effect of that, has been to tie up substantial funds required for the plaintiffs ongoing business.

The plaintiff has therefore issued a writ seeking an order that the bond be released. With the defence now filed, summary judgment is sought under O 12, r 38 of the National Court Rules on the grounds that no defence has been disclosed and in fact no defence is available to the defendant.

The defence accept the factual situation pleaded by the plaintiff but assert that defects in the construction need to be cured and the maintenance period is still running. As such the contract cannot be said to be complete. The defendant relies on the contract terms. The plaintiff on the other hand maintains that since there is no suggestion of any special interpretation required by the contract terms there can be no contest to its claim since the contract itself specifically directs the very orders that the plaintiff seeks. An affidavit in support was filed by the plaintiff testifying to this effect and to the deponents belief that there was indeed no defence available to the defendant.

Order 12, r 38 of the National Court Rules says:

"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 the entry of such judgment for the plaintiff on that claim or part as the nature of the case requires."

The purpose of these rules is to enable a plaintiff to obtain judgment without trial, if he can prove his claim clearly and if the defendant is unable to set up a bona fide defence, or raise an issue against the claim which ought to be tried.

There was no conflict between counsel on the principles to be applied in respect of O 12, r 38 and the decision of Jalina J in Imak International Pty Ltd v Pacific Wholesale Freezers Pty Ltd (N976, unreported) cited by Dr Marat does succinctly summarise the proper approach to be taken by courts in consideration of applications for summary judgment.

Essentially, the court will direct an entry of judgment, summarily, where there is sufficient, clear evidence before the court, of the facts on which the claim is made to enable it to conclude that there is no triable issue of fact, and no arguable defence in law.

An application for summary judgment is normally made after the filing of a notice of intention to defend but prior to the actual filing of a statement of defence. But the mere fact of filing a defence does not, of itself, prevent an application under the rule if it can be shown there is in fact no arguable defence. The plaintiff says in this case an order for summary of judgment is appropriate.

Decided cases show that the court should exercise its discretion with considerable care. A defendant should not be prevented from making his case in defence unless it is clear that he does not have one. Summary judgment must therefore not be granted when there is any serious issue of fact or law arising. But if there is no dispute of fact and the law is clear to the point that...