Titus Keran v Jerry Warun and Country Motors Pty Ltd

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 18 August 1994
• Citation: [1994] PNGLR 130
• Court: National Court
• Year: 1994
• Judgement Number: N1266

National Court: Sevua J

Judgment Delivered: 18 August 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

TITUS KERAN

V

JERRY WARUN AND COUNTRY MOTORS PTY LTD

Lae

Sevua J

17-18 August 1994

PRACTICE AND PROCEDURE — Discovery — Default — Failure to deliver list of documents — Right of party to apply for dismissal of defence — Order 9 r 15 National Court Rules.

PRACTICE AND PROCEDURE — Failure to comply with notice — Application to set aside judgment against defendants — Discretionary power — No good reason for default — Application dismissed.

Facts

The defendants sought to get set aside a default judgment made against them when they failed to comply with the plaintiff's notice for discovery of documents.

Held

Where the plaintiff served a notice for discovery pursuant to O 9 r 1 of the National Court Rules and the defendant failed to comply, his defence has been struck out, and a judgment signed against him, his application to set aside that judgment or order should be refused where he has failed to offer a reasonable explanation for his default.

Cases Cited

Credit Corporation (PNG) Ltd v Jee [1988-89] PNGLR 11.

Counsel

L Dacre, for plaintiff.

D Poka, for defendants.

18 August 1994

SEVUA J: The first and second defendants, by way of notice of motion, seek that the default judgment entered against them on 12 July 1994 be set aside and they be permitted to file and serve a list of documents with verification. They also seek costs and other orders. This application was made yesterday, when the trial for assessment of damages and declaration was supposed to have been dealt with in pursuance of the order of 12 July 1994.

On the outset, let me briefly refer to the history of these proceedings. On 16 November 1993, writ of summons No 53 (L) of 1993 was filed at the sub-registry in Lae. On 23 November 1993, Senior Sgt. Arthur Taliva of Lae police effected service on the first defendant. On 1 December 1993, service was effected on the second defendant through it's registered office at section 88, allotment 2, Aircorps Road, Lae, in pursuance of the Companies Act Ch 146. On 14 December 1993, the second defendant filed a notice of intention to defend through it's lawyer, Sawong and Gamoga. On 29 December 1993, the first and second defendants' defence was filed. On 11 January 1994, the plaintiff filed notice for discovery with verification, which was served on the defendants' lawyer on 14 January 1994. On 24 January, 1994, the defendants' lawyer wrote to the plaintiff's lawyer and acknowledged service. The defendants' lawyer also advised the plaintiff's lawyer that the defendants were compiling all the necessary documents and, as thee were "a fair bit of documents," the plaintiff was requested to consent to an extension till the end of February 1994. On 28 January 1994, the plaintiff's lawyer advised the defendants' lawyer that the plaintiff had consented to an extension till 28 February 1994 and that no further extension would be agreed to. The plaintiff also insisted that the defendants comply with the National Court Rules in the conduct of this case. The plaintiff further intimated that if the defendants did not provide a duly verified and sealed list of documents, an application would be made to the Court to have the defendants' defence dismissed and judgment entered for the plaintiff. The list of documents was never filed.

On 16 June 1994, the plaintiff filed an application seeking dismissal of the defendants' defence and that judgment be entered in his favour. That application was supported by the affidavit of Linda Dacre, and both were served on the defendants' lawyer on 6 July 1994. On 12 July 1994, His Honour Hinchliffe J granted the following orders:

1. The defence of the first and second defendants is struck out.

2. Judgment for damages and declarations to be assessed is entered for the plaintiff.

3. The defendants are jointly and severally restrained from disposing of any of the assets of the second defendant until this matter is finally disposed of.

4. The hearing of assessment for damages and declaration is set for the 17 August 1994 at 9 am.

5. Costs are costs in the cause.

This order was settled on 22 July 1994.

On 29 July 1994, Sawong and Gamoga, which had by then changed to Gamoga & Co, filed a notice of cessation to act for the defendants. Mr Poka informed the Court yesterday that he had received instructions to act for the defendants two days prior to the date the trial for assessment of damages was set, which, to my calculation, would have been 10 July 1994. On 16 August 1994, Milner & Associates filed a notice of...