Esso Highlands Ltd v Quinten Willie

• Jurisdiction: Papua New Guinea
• Citation: (2015) N6010
• Date: 23 April 2015
• Court: National Court
• Year: 2015

Full : WS 1256 OF 2012; Esso Highlands Limited v Quinten Willie and Singhe Industries Limited and Sathyagith Hewa Munasinghe (2015) N6010

National Court: Hartshorn J

Judgment Delivered: 23 April 2015

Applications pursuant to s155 (4) Constitution, O8 r27(1)(b) and (c), and O14 r2 National Court Rules

Cases cited:

Vari Gari v. Motor Vehicle Insurance Ltd (2005) Unreported and Unnumbered

White Corner Investments Ltd v. Haro (2006) N3089

Kerry Lero trading as Hulu Haro Investments Ltd v. Philip Stagg (2006) N3050

Philip Takori v. Simon Yagari (2008) SC905

National Council of Young Men’s Christian Association of Papua New Guinea (Inc) v. Firms Services Ltd (2010) N4569

Louis Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1144

Kuman v. Digicel (PNG) Ltd (2013) SC1323

1. HARTSHORN J: This is a decision on applications by the second and third defendants and the plaintiff. The second and third defendants (Singhe defendants) apply to strike out the plaintiff’s statement of claim. Alternatively their application is amongst others to set aside injunctive relief and be granted leave to file their defences and cross claims out of time. These applications are opposed by the plaintiff, Esso Highlands Ltd. Esso also has an application to file its answer to interrogatories out of time and for the Bank of South Pacific Ltd to produce certain documents. The Singhe defendants do not oppose the application by Esso to file its answer but does oppose the application for the production of documents.

Background

2. Esso commenced this proceeding on 22nd November 2012 claiming amongst others, repayment of the sum of K1,172,841.59 which Esso alleges was fraudulently paid to the second defendant, Singhe Industries Ltd as a result of collusion between the first defendant, Quinten Willie and the third defendant, Sathyagith Munasinghe. Prior to the events giving rise to this proceeding, Esso had a contractual relationship with Singhe Industries in which Singhe Industries supplied certain specified goods to Esso from time to time which were used by Esso’s employees in its operations.

3. The Singhe defendants make application pursuant to Order 8 Rule 27 (1) (b) and (c) National Court Rules, s. 155 (4) Constitution and the inherent jurisdiction of this court for Esso’s statement of claim to be struck out as they submit that:

a) full particulars about each alleged fraudulent payment have not been given, such as the dates when the false invoices were issued, details of Esso’s forms authorising each payment, how each of the payments were fraudulently altered, and details of whether invoices paid had previously been paid and recycled, with different material descriptions and invoice numbers. Esso has only pleaded general methods of fraudulent conduct;

b) there are inconsistencies with the alleged fraudulent payments pleaded in the statement of claim and how these payments are described in the affidavit evidence of Robert Endsley and in the statement in answer to interrogatories filed on behalf of Esso;

c) there appear to be three cleared payments in the statement in answer to interrogatories. This means that the amount claimed of K1,172,841.59 in the statement of claim cannot be claimed;

d) the combination of the matters referred to in a), b) and c) above are indicative of Esso’s claim being obviously and almost incontestably bad. The pleadings are embarrassing and prejudicial as the Singhe defendants have to guess what is alleged against them.

4. Esso submits that its statement of claim clearly particularises the alleged fraud in paragraphs 3 and 4 of the statement of claim. Further, the requirements of Order 8 Rule 30 National Court Rules, that a party pleading shall give particulars of any fraud on which he relies, have been met.

5. Order 8 Rule 27 (1) (b) and (c) is as follows:

“(1) Where a pleading-

(a) ….

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or

(c) is otherwise an abuse of the process of the Court, the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.”

6. Counsel for the Singhe defendants submits that Esso has not pleaded the particulars of the fraudulent conduct of the Singhe defendants that...