Albert Areng v Gregory Babia and National Housing Corporation (2005) N2928

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 11 November 2005
• Citation: (2005) N2928
• Docket Number: WS No 501 of 2003
• Year: 2005

Full Title: WS No 501 of 2003; Albert Areng v Gregory Babia and National Housing Corporation (2005) N2928

National Court: Cannings J

Judgment Delivered: 11 November 2005

1

Ruling On Motion

Practice and procedure—motion to set aside default judgment—previous motion to set aside the same default judgment refused—whether res judicata applicable—circumstances in which a default judgment can be set aside—whether a default judgment can be regarded as a nullity on the ground that the statement of claim failed to disclose a reasonable cause of action.

The plaintiff commenced proceedings against the first defendant, who was then the regional manager of the National Housing Corporation, and the second defendant, the National Housing Corporation. He is seeking an order that title to a property in Madang town be transferred to his father and damages for negligence. The basis of the claim is that he is the son of the legal purchaser of the property who has not been able to secure title to the property due to the defendants' negligence. The plaintiff obtained default judgment and more than a year later the defendants applied unsuccessfully to have the default judgment set aside. The defendants then filed another motion to set aside the default judgment, this time relying on different grounds to those advanced in support of the first motion. This is a ruling on the second motion to set aside the default judgment.

Held:

(1) Notwithstanding that the present application is based on different grounds the cause of action constituted by the application is the same as the previous application, involving the same parties, so the principle of res judicata applies.

(2) This application is therefore an abuse of process as the previous application to set aside the same default judgment was refused.

(3) The motion to set aside the default judgment was accordingly refused, with costs.

Grace Lome v Allan Kundi (2004) N2776, Leo Hannet and Elizabeth Hannet v ANZ Banking Group (PNG) Ltd (1996) SC505, Lucas Roika v Minister for Provincial and Local–level Government and National Executive Council OS No 339 of 1994, 06.10.94, unreported, Mark Ekepa v William Gaupe (2004)...