Michael Newal Wilson v Harold Rosser Howard

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J, Konilio J, Jalina J
• Judgment Date: 26 April 1993
• Citation: [1994] PNGLR 418
• Court: Supreme Court
• Year: 1994
• Judgement Number: SC453

Supreme Court: Hinchliffe J, Konilio J Jalina J

Judgment Delivered: 26 April 1993

SC453

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA 109 of 1992

BETWEEN:

MICHAEL NEWAL WILSON

Appellant

AND:

HAROLD ROSSER HOWARD

Respondent

Waigani: Hinchliffe, Konilio and Jalina, JJ

1993: 26 April

Practice and Procedure — Striking out defence — General denial only pleaded — Defence Struck out — National Court Rules, 08, rr27, 28.

Practice and Procedure — Liquidated claim — Defence & General Denial — Verification of Defence by Affidavit — Mandatory; National Court Rules 0.8 r 24.

CASES CITED

The following is the only case cited in the judgment.

Hornibrook Constructions Pty Ltd -v- Kawas Express Lines [1986] PNGLR 301.

M.N. Wilson in person with Mr G.J. Sheppard.

P.R. Payne for Respondent.

BY THE COURT: This is an appeal against a decision of the National Court on 1 August, 1992 whereby the National Court ordered that:

"(1) The Defence of the Defendant filed on 18 December, 1991 be
struck out.

(2) The judgment be entered for the Plaintiff in the sum of
K42,081.78 together with interest at the rate of 15.25% per
annum from 27th August 1991 to the date of judgment and
continuing.

(3) The Defendant pays the plaintiffs costs."

STATEMENT OF CLAIM

1. By an agreement in writing made between the Plaintiff and the
Defendant in or about March, 1991 the Plaintiff agreed to sell and
the Defendant agreed to purchase the Plaintiff's share and interest in
the legal practice of Warner Shand, Lawyers, Mt. Hagen including the
units and goodwill thereof. At the trial the Plaintiff will refer to the
said agreement as if the same were set out herein in full.

2. There were express terms of the said agreement inter alia as
follows:

(a) The purchase price shall be K55,000 payable by the Defendant
to the Plaintiff as to K8,250 upon the execution of the
agreement and the balance thereof by equal instalments of
K2,377 each at intervals of one month calculated from the date
of the agreement, the first such payment to be made one
calender month from the date thereof;

(b) the said instalments shall be paid to the Plaintiff 's bank
account No. 3803597801 at the Mt. Hagen Branch of Westpac;

(c) interest at the rate of 15.25 percent per annum shall be paid
by the Defendant on such much of such balance of the
consideration as shall remain unpaid from time to time;

(d) time shall be of the essence.

3. There were further express terms of the agreement inter alia as follows:

(a) if the Defendant fails to comply with the provisions referred to
in the last preceding paragraph then he shall be immediately
in default and breach of the agreement;

(b) a determination by the Plaintiff that any of the events
constituting such a breach has occurred shall be final and
binding upon the Defendant;

(c) payments to the Plaintiff then and in that event the balance of
the consideration as aforesaid shall become immediately due
and payable in full including all or any interest thereon.

4. The defendant failed to pay the instalment due in August 1991
under the said agreement whereby the whole of the balance of the
consideration (including interest) became immediately due and
payable.

5. By facsimile transmission dated 27th August, 1991 from the Plaintiff
to the Defendant the Plaintiff gave the Defendant notice of his
determination that there had been an occurrence constituting a
default and breach under the agreement and that the said balance
of the consideration was due and payable.

6. The Defendant has failed and neglected and continues to fail and
neglect to pay the balance of the consideration of any part thereof
due under the said agreement whereby the Plaintiff has suffered loss
and damage.

Purchase Price K55,000.00

Deposit K 8,250.00

Interest K 644.57

April Payment K 2,337.00

May Payment (default)

Interest K 1,148.35

June Payment K 2,337.00

Interest K 549.85

July Payment K 2,337.00

K42,081.78

Plus interest at 15.25% per annum from July, 1991 and ongoing.

And the Plaintiff claims:

(1) K42,081.78 as aforesaid;

(2) Interest at the rate of 15.25 percent per annum as agreed;

(3) Costs."

In the Appellant/Defendant's Defence which was contained in the same document as the counter claim, the Defendant denied each and every allegation contained in paragraphs 1-6 inclusive of the Respondent/Plaintiff's Statement of claim. Further and in the alternative the Appellant/Defendant sought to set off so much of his counter claim so be sufficient to satisfy or extinguish the Respondent/Plaintiff's claim as adjusted (if any).

The Appellant/Defendant's counter claim was based on a separate Deed entered into between the Appellant and Respondent on 1 May 1986. For reasons which will become clear later in this judgment we do not consider it necessary to recite the basis of the counter claim in full except to point out the terms:

Page 5

"AND WILSON COUNTER CLAIMS:

(i) a sum equivalent to Howard's due proportion of partnership
losses for the year ended 31 December 1990;

(ii) a sum equivalent to Howard's due proportion of Partnership
debts as at 31 December 1990;

(iii) the sum of K13,011.34;

(iv) damages;

(v) costs

(vi) interest pursuant to the Judicial Proceedings (Interest on Debts
& Damages) Act."

Unlike the Appellant/Cross-Claimant who made a general denial of the Respondent/Cross-Defendant's claim, the...