Otto Benal Magiten v Kopina Raka, Gabby Ranu and Ela Motors (PNG) (2002) N2179

• Jurisdiction: Papua New Guinea
• Judge: Sawong J
• Judgment Date: 12 March 2002
• Court: National Court
• Citation: [2002] PNGLR 121
• Year: 2002
• Judgement Number: N2179

Full Title: Otto Benal Magiten v Kopina Raka, Gabby Ranu and Ela Motors (PNG) (2002) N2179

National Court: Sawong J

Judgment Delivered: 12 March 2002

N2179

PAPUA NEW GUINEA

[In the National Court of Justice in Madang]

WS NO. 636 OF 2001

BETWEEN:

OTTO BENAL MAGITEN

(Plaintiff)

AND:

KOPINA RAKA

(First Defendant)

&

GABBY RANU

(Second Defendant)

&

ELA MOTORS (PNG)

(Third Defendant)

MADANG : SAWONG J.

2002 : 13th February, 12th March

CONTRACT LAW – Accrual of cause of action – when does cause of action accrue –

FRAUDS & LIMITATION – Statute of Frauds & Limitations – S.16

Contracts – cause of action accrues – limitation of time to bring action

Based on contract –

HELD – Where the contract is to do something at a particular time or upon the

happening of a contingency, and the thing contracted for is not done, the cause

of action arises at the time specified or upon the contingency occurring.

(2) In this case the plaintiff’s cause of action accrued at the end of February 1995 and continued till end of February / beginning of March, 2001.

(3) As the Writ of Summons was filed on 17 May, 2001 the plaintiff’s cause of action was time barred.

(4) Accordingly the application by the Defendants is upheld and the whole of the proceedings is dismissed.

G. GILENG, for the Applicant/Defendants

B. TABAI, for the Respondent/Plaintiff

D E C I S I O N

12th March, 2002

SAWONG J: By a Notice of Motion the defendant/applicants moved the court for the following orders:

1. That the proceedings be dismissed as being time barred pursuant to S. 16 (1) of the Frauds and Limitations Act, 1988.

2. Alternatively this proceedings be stayed pursuant to O. 8 r 67 of the national Court Rules until the cost in WS No. 74 of 2001 is paid in full by the Plaintiff.

3. Cost of this application and if applicable, cost of these proceedings, because of solicitor/own client basis.

At the hearing of the application the alternative claim was not pursued. The application was therefore made on the basis that the proceedings be dismissed as being time barred pursuant to S. 16 (1) of the Frauds and Limitations Act, 1988 (“The Act”).

The plaintiff/respondent opposed the application.

Mr Gileng for the applicant relies on the affidavit of Peter Kuman, sworn on the 23rd August, 2001 and filed on the same date. There has been no answering affidavit filed on behalf of the plaintiff. Thus, the only evidence relied on is the evidence contained in the affidavit of Peter Kuman. The relevant parts of Mr Kuman’s affidavit are set out in paragraphs 13 to 17 inclusive. These are as follows:

“13. Furthermore the Plaintiff’s claim is time-barred now pursuant to

Section 16 of the Frauds and Limitations Act 1988.

14. I refer to the Statement of Claim in the new proceedings (WS No. 636

of 2001) which is essentially similar to the previous proceedings that was dismissed in WS No. 74 of 2001 where at paragraphs 8, 12, 15, 18 where the Plaintiff specifically states the cause of action would have arisen on or about 3 February 1995 when the Plaintiff allegedly brought in his PMV for repairs at the Third Defendant’s workshop in Madang.

15. The six years time limitation would have elapsed on or about 3 February, 2001.

16. The present proceedings (WS 636 of 2001) was filed on 17 May, 2001.

17. In my view, the present proceedings is out of time with respect to any allegations of breach of contract or tort as pleaded against the First, Second and Third Defendants.”

Mr Gileng submitted that the plaintiff’s claim is time barred and therefore ought to be dismissed. He relied on S. 16 (1) of the Act.

Mr Tabai submitted that the claim is not time barred as the plaintiff’s cause of action accrued in May 1995, when the bank repossessed the plaintiff’s vehicle.

In this case the issue is when did the plaintiff’s cause of action accrued. Was it when he entered the contract with...