Kumagai Gumi Co Ltd v National Provident Fund Board of Trustees (2005) SC776

• Jurisdiction: Papua New Guinea
• Date: 04 February 2005
• Citation: (2005) SC776
• Docket Number: SCA 145 of 2003
• Court: Supreme Court
• Year: 2005

Full Title: SCA 145 of 2003; Kumagai Gumi Co Ltd v National Provident Fund Board of Trustees (2005) SC776

Supreme Court: Kapi CJ

Judgment Delivered: 4 February 2005

1 Appeal—Application to stay pending appeal under s19 of the Supreme Court Act—Proper principles discussed.

2 Appeal—Interim Orders to prevent prejudice to the claims of the parties, s5(1(b) of the Supreme Court Act—The principles enunciated under s19 of the Supreme Court Act in the decided cases is consistent with criteria under s5(1)(b) of the Supreme Court Act.

3 Practice and Procedure—Application for default judgment—Denial of natural justice on the issue of verified defence—Arguable ground of appeal.

4 Practice and Procedure—Denial of natural justice in determining summary judgment—Arguable ground of appeal.

5 Gary McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279, Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 30., Motor Vehicles Insurance (PNG) Trust MVIT v Nand Waige & 2 Others [1995] PNGLR 202., Micahel Newal Wilson v Harold Rosser Howard [1994] PNGLR 418)., Akipa & Others v Lowa & Others [1990] PNGLR 502., Brian Curran v PNG [1997] PNGLR230, Peter Peipul Ipu v Pila Ningi & Electoral Commission (Unreported Judgment of the Supreme Court dated 28th October 1998, SC580., Gillette Australia Pty Ltd v Energizer Pty Ltd 56 IPR 1 (Federal Court of Australia) referred to

6 O12 r38 of the National Court Rules, O8 r25 & r27 of the National Court Rules, O8 r28 of the National Court Act, O8 r27(b) and (c) of the National Court Rules, O12 r38 of the National Court Rules, O12 r37(b) of the National Court Rules, O8 r24(1) of the National Court Rules, O8 r27(1)(b) of the National Court Rules, O8 r21(2) of the National Court Rules, O12 r25 of the National Court Rules discussed

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Kapi CJ: This is an application made under s19 of the Supreme Court Act for an order to stay the judgment of the National Court (Kandakasi J) dated 5 December 2003 pending the determination of appeal to the Supreme Court.

The circumstances giving rise to this application may be summarized as follows. The National Provident Fund Board of Trustees (Respondent) sued Kumagai Gumi Co Ltd (Appellant). It is not necessary for the present purposes to set out the full details of the claim. The Respondent's claim is based on an alleged fraudulent second acceleration claim by the Appellant for an increased cost claim where it is alleged that there was in fact no such acceleration work and no right to an increased cost claim and no consideration for the additional money other than the performance of the original contractual obligations.

The Appellant filed a defence and generally denied the claim.

The Respondent filed a notice of motion in the National Court for default judgment under O8, r25(c) and r27 and alternatively, for summary judgment under O12 r38 of the National Court Rules. The trial judge struck out the Appellant's defence and entered default judgment and alternatively, entered summary judgment for the Respondent in the sum of K5,805,000.00 plus interest.

The Appellant has filed an appeal against the decision of the National Court on the following grounds:

"3 Grounds

(a) His Honour erred in law in determining the application before him on the basis that at the hearing on 11 September 2003 he had before him as evidence the affidavits of Erastus Kamburi made 16 July and 10 September 2003 when in fact no evidence was adduced by the Respondent before him.

(a) His Honour erred in law by proceeding on the basis that all of the claims for relief in the Respondent's notice of motion filed 25 June 2003 had been before himn at the hearing on 11 September 2003 when in fact the application before him was confined to the issues:

(i) Whether the defence of the Appellant pleaded the general issue contrary to O8, r28 of the National Court Act;

(ii) Whether the form of the defence filed by the Appellant had a tendency to cause prejudice, embarrassment or delay in the proceedings or was otherwise an abuse of the process of the Court within the meaning of O8, r27(b) and (c) of the National Court Rules; and

(iii) Whether the...