Michael Kewa and Others v Elias Mai Kombo (2004) N2688

• Jurisdiction: Papua New Guinea
• Citation: (2004) N2688
• Date: 15 October 2004
• Court: National Court
• Year: 2004

Full Title: Michael Kewa and Others v Elias Mai Kombo (2004) N2688

National Court: Cannings J

Judgment Delivered: 15 October 2004

1 Practice—pleadings—application by defendant to amend defence—National Court Rules, O8, r50—whether application should be granted—discretionary matter for Court—identification of relevant considerations re exercise of discretion—application of considerations—previous application by defendant to dismiss proceedings on ground of breach of Frauds and Limitations Act 1988, dismissed—National Court Rules, O8, r14—whether limitations period defence to be specifically pleaded—whether res judicata or issue estoppel applicable.

2 The Papua Club Inc v Nusaum Holdings Ltd [2002] PNGLR 230 referred to

Ruling On Motion

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Cannings J:

INTRODUCTION

This is a ruling on a motion to amend a defence. The substantive case concerns a block of land in Mt Hagen. The plaintiffs claim that the defendant obtained a lease over the land in his own name, by fraud.

BACKGROUND

On 10 August 2000 a writ of summons was filed. The main relief sought by the plaintiffs is a declaration that the defendant's lease, which has apparently been registered, be declared null and void.

On 25 August 2000 the defendant filed a notice of intention to defend.

On 22 September 2000 the defendant filed a defence. This is the document he now wants to amend.

On 19 December 2003 the defendant filed a notice of motion, seeking to have the proceedings summarily dismissed. The principal ground relied on was that the limitations period for bringing this sort of claim was breached. The plaintiffs were too slow in filing the writ, it was claimed.

On 11 August 2004 that motion was determined by Salika J in the National Court...