Niuslik Holding Limited Trading as Ray White Papua New Guinea v George T Yapao Trading as Yapao Lawyers (2003) SC703

• Jurisdiction: Papua New Guinea
• Judge: 3 March 2003
• Judgment Date: 03 March 2003
• Court: Supreme Court
• Docket Number: SCA No 33 of 2002
• Citation: (2003) SC703
• Year: 2003
• Judgement Number: SC703

Full Title: SCA No 33 of 2002; Niuslik Holding Limited Trading as Ray White Papua New Guinea v George T Yapao Trading as Yapao Lawyers (2003) SC703

Supreme Court: 3 March 2003

Judgment Delivered: Davani J

1 PRACTICE AND PROCEDURE—leave to appeal—Defence filed out of time—Defence struck out—Application to set aside judgment refused—refusal to set aside judgment; final or interlocutory judgment—whether leave required—tests to be applied—Supreme Court Act s14(3)(b)

2 PRACTICE AND PROCEDURE—Application to stay entry of judgment of taxed costs—Applicant need only demonstrate a reason or an appropriate case by evidence—need to demonstrate that applicant will suffer hardship, inconvenience and prejudice—stay pending substantive hearing of appeal—Supreme Court Act s19

3 The Independent State of Papua New Guinea and Minister for Village Services and Provincial Affairs v Gulf Provincial Government (In Suspension) [1994] PNGLR 34, Russels Trading Pty Ltd v Coca Cola Amatil (PNG) Pty Ltd (1996) (Unreported and unnumbered Supreme Court Decision dated 29 March 1996, SCA No 17 of 1996), The Independent State of Papua New Guinea v Daniel Mollen [1997] PNGLR 193, Yakham v Merriam (1997) SC533, LA Jarden Collector Agency Pty Ltd and Richard Hill & Associates v Masket Iangalio and Public Curator of Papua New Guinea (1998) SC597, Ruma Construction Pty Limited v Christopher Smith (1999) SC600, Post PNG Ltd v Westpac Bank PNG Ltd (1999) SC608, NCD Water and Sewerage Ltd v Sam Maskuman Tasion (2002) SC696 and Joseph Davis and Irene Davis v David Tasion, Controller and Commissioner of Police, John Lohberger, Chief Collector of Taxes, Lawrence M Newell, Sheriff of Court and The Independent State of Papua New Guinea (1989) SC364 referred to

Application for leave to appeal and Application for stay.

___________________________

SC703

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE AT WAIGANI ]

SCA NO. 33 OF 2002

BETWEEN:

NIUSLIK HOLDING LIMITED trading as RAY WHITE

PAPUA NEW GUINEA

Applicant

AND:

GEORGE T. YAPAO trading as YAPAO LAWYERS

Respondent

Waigani: Davani, .J

2003: 20 February

3 March

PRACTICE AND PROCEDURE – leave to appeal – Defence filed out of time – Defence struck out – Application to set aside judgment refused – refusal to set aside judgment; final or interlocutory judgment – whether leave required – tests to be applied – Supreme Court Act s. 14 (3) (b)

PRACTICE AND PROCEDURE – Application to stay entry of judgment of taxed costs – Applicant need only demonstrate a reason or an appropriate case by evidence – need to demonstrate that applicant will suffer hardship, inconvenience and prejudice – stay pending substantive hearing of appeal – Supreme Court Act s. 19

Cases cited

·PNG v Gulf Provincial Government [1994] PNGLR 34

·Russels Trading Pty Ltd v Coca Cola Amatil (PNG) Pty Ltd SCA 17 dated 29.3.96

·The Commissioner, Corrective Institution Services v Daniel Mollen SC 513 dated 19.11.96

· Henzy Yakham and 1 other v Dr Stuart Hamilton Merriam and one other SCA 94 (1996); The State v Dr Stuart Hamilton Merriam and one other SCA 95 (1996) 27.11.97

·L.A. Jarden Collector Agency Pty Ltd & Anor v Masket Iangalio & Anor SC 507 (1998) (unreported)

·Ruma Construction Pty Ltd v Christopher Smith SC 600 (1999) (unreported)

·Post PNG Limited v Westpac Bank PNG Limited SC 608 dated 26.5.99

·NCD Water & Sewerage Limited trading as Eda Ranu v Sam Maskuman Tasion and Maskuman Limited SCA 36 dated 4.10.02

·Davis v David Tasion SC 364

E. Waifaf for the Applicant

G. Koi for the Respondent

RULING

(Application for leave to appeal and Application for stay)

3 March 2003

Davani .J: This is an application by the Applicant seeking leave to appeal against the National Court’s decision of 25th March 2002 when the said court refused to set aside its own orders made earlier on 26 November 2001. The Applicant is also seeking stay orders. I heard the both applications together.

Before considering arguments raised by both counsel, it is necessary that the court set out a brief chronology of this matter.

Chronology

1. 20 August 2001 - Respondent, as Plaintiff, filed a Writ of Summons and Statement of Claim in proceedings WS 1161 of 2001. (‘Summons’).

2. 31 August 2001 - Applicant, as Defendant, filed Notice of Intention to Defend.

3. 22 October 2001 - Applicant filed its Defence.

Respondents contended that the Defence was filed out of time and that the Applicant should seek leave of the court to file its Defence.

4. 21 November 2001 - Respondent filed Application to strike out Applicant’s Defence.

5. 29 October 2001 to

20 December 2001 - Several adjournments by the National Court to allow Applicant time to prepare and file its client’s affidavit opposing the Respondents application.

6. 20 December 2001 - Court ordered the striking out of the Defence filed on 22nd October 2001 by the Applicants. The hearing and order was made in the Applicant’s absence.

The court also ordered that judgment be entered in the sum of K15,923.00 together with interest at 8% per annum and costs of the proceedings.

7. 11 March 2002 - Applicant filed Application to Set Aside Judgment of 20th December 2001.

8. 25 March 2002 - National Court dismissed Applicant’s Application to Set Aside.

9. 3 May 2002 - Applicants filed application in the Supreme Court seeking leave to Appeal the National Court’s decision of 25 March 2002.

Facts and the law

The Applicant submits that the National Court’s order of 25 March 2002 is interlocutory in nature and as such, leave is required. Section 14 (1) (3) (b) of the Supreme Court Act (‘SCA’) states;

“14. Civil appeals to the Supreme Court

(3) No appeal lies to the Supreme Court without leave of the Supreme Court –

…

(b) from an interlocutory judgment made or given by the National Court…”

Is the National Court’s order of 25 March 2002 interlocutory in nature? The position at law is that there are two tests to be applied when determining whether a decision is “interlocutory” or “final” in nature.

These are;

1. The court must look at the nature of the application to the court and not the order eventually made;

2. The court must look at whether the judgment or order made finally disposes of the rights of the disputing parties. (see L.A. Jarden Collector Agency Pty Ltd & Anor v Masket Iangalio & Anor SC 507 (1998) (unreported); Ruma Construction Pty Ltd v Christopher Smith SC 600 (1999) (unreported); Davis v David Tasion SC 364; NCD Water & Sewerage Limited trading as Eda Ranu v Sam Maskuman Tasion and Maskuman Limited SCA 36 of 2002).

I will discuss each “test” together as related to this case.

Tests:

The order from which this application emanates is an application to set aside an exparte judgment. When this application was refused, the situation reverted to that of the payment of K15, 923.00 by the Applicant to the Respondent. It in effect, reinforced the earlier order of 20 December 2001 to pay K15, 923.00. The order to pay K15, 923.00 was done after the National Court struck out the Applicant’s Defence. It was both an application for summary judgment, and an application for Default judgment. Judgment was for a liquidated amount.

The Applicant’s application, following that order, was an application to set aside, which was refused and which is now the subject of this application.

The order to pay K15,923.00 determined the finality of the Applicant and Respondent’s rights in relation to liability and quantum. Then, the refusal of the application to set aside meant the Applicant was and is required to pay the judgment debt of K15, 923.00, which it has already done. I have seen that the Respondent garnisheed the Applicant’s account for payment of that sum. The Applicant is now to pay the assessed costs. I will discuss that in the part relating to the motion to stay.

There is no question as to the finality of this order. The Applicant need not obtain leave of the court.

As is provided in O. 7 R. 5 of the Supreme Court Rules (SCR), the Applicant’s Application for Leave to Appeal may be treated as a Notice of Appeal if it sufficiently incorporates the...