Yamanka Multi Services Limited v National Capital District Commission and Hebou Construction Limited (2010) N3904

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 18 February 2010
• Citation: (2010) N3904
• Docket Number: WS 768 OF 2001
• Year: 2010

Full Title: WS 768 OF 2001; Yamanka Multi Services Limited v National Capital District Commission and Hebou Construction Limited (2010) N3904

National Court: Hartshorn J

Judgment Delivered: 18 February 2010

APPLICATION TO SET ASIDE DEFAULT JUDGMENT—O12 r8 National Court Rules whether judgment irregularly obtained—matters to be considered—O1 r8, r9, and r10 National Court Rules—ex parte judgment—whether reasonable explanation for delay in filing application

Facts:

The first defendant, National Capital District Commission, (NCDC), applied under O12 r8 National Court Rules to have the ex parte default judgment entered against it set aside as, amongst others, it was irregularly entered as NCDC had filed a defence, it was entered ex parte, and NCDC has a good defence. The plaintiff, Yamanka Multi Services Limited opposes the application as, amongst others, the judgment was entered regularly and the application was not brought within a reasonable time.

Held:

1. O8 r51(5)(d) & (e) National Court Rules do not require an amended defence to be filed. The defence already filed has effect and any new claims in the amended statement of claim are taken to be denied. Consequently NCDC was not in default and the judgment obtained against it for being in default was obtained irregularly.

2. The application to set aside has not been made within a reasonable time as required by Order 1 Rule 9 National Court Rules and there is no reasonable explanation for the delay of 4 years 9 months in making the application. Consequently the application to set aside the judgment, although entered irregularly, is refused.

3. The application to set aside the judgment as it was made ex parte is also refused.

4. The orders sought in the first defendant’s Notice of Motion are refused.

Cases cited

George Page Pty Ltd v Malipu Bus Balakau [1982] PNGLR 140; Leo Hannet and Elizabeth Hannet v ANZ Banking Group (PNG) Ltd (1996) SC505; Andrew Baing v PNG National Stevedores Pty Ltd (2000) SC627; Christopher Smith v Ruma Constructions Ltd (2002) SC695; Kerenge Kaupa v Independent State of Papua New Guinea (2004) N2491; Frank Onga v The State (2008) N3705

1. HARTSHORN J. The first defendant, National Capital District Commission, (NCDC), applies under Order 12 Rule 8 National Court Rules to have the ex parte default judgment entered against it on 15th November 2004 set aside as it submits amongst others that the judgment:

a) was irregularly entered as NCDC had filed a defence. The failure of NCDC to file an amended defence to the amended statement of claim did not constitute a default: Order 8 Rule 51(5)(e) National Court Rules. Consequently default judgment should not have been entered.

b) was entered ex parte, and that

c) NCDC has a good defence.

2. The plaintiff, Yamanka Multi Services Limited opposes the application as it submits that:

a) the judgment was regularly entered but if it was not, then

b) NCDC was aware of the judgment from 22 November 2004.

c) the application to set aside the judgment was not brought within a reasonable time.

d) NCDC had taken further steps in the proceeding with knowledge of the judgment.

The law

3. The Supreme Court decision of Leo Hannet & Anor v. ANZ Banking Group (PNG) Ltd (1996) SC505 sets out the matters that an applicant must show for a court to be able to exercise its...