Paul John v Gerd Lindhardt and Servicom Pty Ltd

• Jurisdiction: Papua New Guinea
• Judge: Sakora J
• Judgment Date: 12 November 1999
• Citation: (1999) N1938
• Court: National Court
• Year: 1999
• Judgement Number: N1938

National Court: Sakora J

Judgment Delivered: 12 November 1999

N1938

PAPUA NEW GUINEA

[In the National Court of Justice]

WS No. 307 OF 1998

PAUL JOHN

Plaintiff

AND:

GERD LINDHARDT

First Defendant

AND:

SERVICOM PTY LIMITED

Second Defendant

Lae : Sakora J.

1998 : 9 October

1999 : 12 November

S. Tedor for the Plaintiff

D. Poka for the Defendants

12 November 1999

SAKORA J: This is an application by way of Notice of Motion for the entry of Default Judgment against the defendants in the sum of K31,891.14. The plaintiff makes this application pursuant to

Order 12, Rules 25, 26, 27 and 34 of the National Court Rules (NCR). These rules are under Division 3 of the Order, which makes provisions for the circumstances under which a Default Judgment can be entered, thus a summary disposal with orders in favour of the plaintiff, upon proven default by a defendant, without the necessity of going to trial.

The pertinent provision under Rule 25 is in the following terms:

25. Default

A defendant shall be in default for the purposes of this Division.

(a) .......

(b) where he is required to file a defence and the time for him to file his defence has expired but he has not filed his defence; or

(c) .......

Rule 26 of Order 12 then sets out the procedure to be undertaken upon the default of the defendant.

It is the plaintiff’s contention that there has been a default on the part of the two defendants to comply with requirements of the NCR. In the first instance, it is contended, the defendants did not file their respective Defences within the required period following the service on them of the plaintiff’s Writ of Summons. Thus, he says, he is entitled to come to this Court to seek the summary relief he seeks pursuant to Rules 25 (b), 26 and 27.

In support of the application the plaintiff has filed before this Court the following documents that he relies on:

1. Affidavit of Service of the Writ of Summons on the two defendants
sworn 1st June 1998 by Paul John, the plaintiff.

2. Affidavit of Debt sworn by Sialis Tokalula Tedor, the lawyer for the
plaintiff, on 2 September 1998.

3. Affidavit of Search sworn by Sialis Tokalula Tedor said lawyer for the
plaintiff, on 2 September 1998.

As well, the plaintiff relies upon the letter of “warning” to the lawyers for the two defendants by his lawyer dated 15 July 1998, which is annexed with the letter “A” to the affidavit of Guguna K Garo sworn 18 September 1998 on behalf of the defendants. It is also Annexure “A” to the Affidavit of Search of Sialis Tedor (supra). This letter, after confirming the service of the defendants’ Notice of Intention to Defend, noted that the time for filing their Defences had lapsed on 14 July 1998. It then warned, pursuant to Practice Direction 1/87 NCR, that a search of the Registry of the National Court at Lae would be conducted on 27 July 1998 to ascertain whether the Defences had been filed, and that, if not, the plaintiff would proceed to apply for Default Judgment under the NCR.

The plaintiff says that the two defendants had sufficient time within the NCR to file their Defences in compliance with Order 12

Rule 25, and that equally sufficient warning had been given them as to what would ensue if they did not take heed and undertaken necessary action on their own part to protect their interests before 27 July 1998. In fact the intended search did not take place until 25 August 1998 (para. 7, Affidavit of Search) (supra), thus according the defendants “extensions” by a further 41 days after the lapsing of the required (by NCR) period on 14 July 1998.

Furthermore, it is submitted for the plaintiff that additional opportunity for the defendants to file their Defences arose after 25 August 1998, when this Notice of Motion with the accompanying documents were filed on 7 September and duly served 14 September 1998. It was thus another ample opportunity that the defendants failed to avail of in the protection of their interests. It is not without consequence to note in this respect that this application of the plaintiff was heard eventually on 9 October 1998, some 26 days after the service of the Notice of Motion and the supporting affidavits.

And pursuant to Order 12, Rule 27, the plaintiff’s claim is a liquidated demand. Rule 27 is in the following language:

27. Liquidated demand
(1) Where the plaintiff’s claim for relief against a defendant in
default is for a liquidated demand only, the plaintiff may enter
judgment against that defendant for a sum not exceeding the
sum claimed in the statement of claim on that demand and for
costs.

2. Where a claim for a liquidated demand includes interest at an
unspecified rate, interest accruing after the date of filing the
statement of claim to the date of entry of judgment shall, for
the purposes of judgment under this Division be reckoned at
the rate of 8% yearly.

Mr Poka of counsel for and on behalf of the two defendants opposes the application, arguing that it is not appropriate for the plaintiff to seek the relief that he does now, as the defendants had filed a Notice to Plead Facts pursuant to Order 8 Rule 13 (3) NCR, which remains unanswered. It is the contention of the defendants that the notice was filed on 30 June 1998, within the time required by the NCR for the filing of Defences.

Rule 13 (3) of Order 8 is in the following terms:

13. Money claims
(1) ...............
(2) ................
(3) The defendant may within the time limited for filing his defence,
file and serve on the plaintiff a notice that the defendant requires
the plaintiff to plead the facts on which he relies in accordance
with this Division other than this Rule.

The defendants have had filed on their behalf the affidavit of Guguna K Garo (supra) which they rely on here. That affidavit deposes to the filing and service of the Notice of Intention to Defend and a Notice to Plead Facts on the plaintiff’s lawyer in Lae. It also deposes to the correspondence between the lawyers in July and September 1998, and finally contends that the plaintiff is in default himself by not responding to the Notice to Plead Facts.

Thus, it is submitted, the defendants have been unable to plead properly or at all to the plaintiff’s Writ of Summons. They have been and are awaiting the plaintiff to furnish facts. Under these circumstances, they urge the Court to dismiss the Notice of Motion with costs.

In reply, learned counsel for the plaintiff relies upon paragraph (6) of the affidavit of Guguna Garo (supra) as...