National Provident Fund Board of Trustees v James [Jimmy] Maladina, Kumagai Gumi Co Ltd, Ken Yapane & Associates Ltd, Ken Yapane, Kuntila No 35 Ltd, Janet Karl, Dick Karl and Ango Wangatau, Kenneth Norman Barker, Port Moresby First National Real Estate Ltd, Bethgold Pty Ltd, Maurice John Sullivan, Barbra Perks, Ulya Real Estate Limited, Herman Leahy, David Lighfoot [Lightfoot], John Beattie, Kelly Naru and Bernad [Bernard] Avery practising with Jimmy Maladina as 'Carter Newell Lawyers, Bluehaven No 42 Ltd and Ram Business Consultants Ltd (2003) N2486

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2003) N2486
• Date: 05 December 2003
• Year: 2003

Full Title: National Provident Fund Board of Trustees v James [Jimmy] Maladina, Kumagai Gumi Co Ltd, Ken Yapane & Associates Ltd, Ken Yapane, Kuntila No 35 Ltd, Janet Karl, Dick Karl and Ango Wangatau, Kenneth Norman Barker, Port Moresby First National Real Estate Ltd, Bethgold Pty Ltd, Maurice John Sullivan, Barbra Perks, Ulya Real Estate Limited, Herman Leahy, David Lighfoot [Lightfoot], John Beattie, Kelly Naru and Bernad [Bernard] Avery practising with Jimmy Maladina as 'Carter Newell Lawyers, Bluehaven No 42 Ltd and Ram Business Consultants Ltd (2003) N2486

National Court: Kandakasi J

Judgment Delivered: 5 December 2003

1 PRACTICE AND PROCEDURE—Pleadings—Purpose and object of—To enable parties to fully disclose their claims to avoid unnecessary delays, trial by ambush and attrition and to enable an out of court settlement or payment into court if need be—A mere denial of a claim without more when more is reasonably required and or where verification of a defence is required amounts to general denial—Effect of—Amounts to evasion or avoidance and an affront to the purpose and object of pleadings attracting an application of the provisions of National Court Rules O8, r27—Such pleadings liable to be struck out—National Court Rules, O8 r24 and r27.

2 PRACTICE AND PROCEDURE—Application for summary judgment—Claim for certain sum of money paid fraud over and above contract entitlements due to fraud—Claim falling within exceptions to the application of summary judgment procedure—Exceptions necessary in cases where a defendant is entitled to a jury trial—Recent developments in England omitted claims based on fraud from the list of exceptions—List of exceptions generally considered inappropriate to PNG circumstances as there is no jury trial and there is always the need to promptly resolve disputes—Claims based on fraud specifically inappropriate since England as removed it from the list of exceptions—National Court Rules, O12, r37 and r38.

3 PRACTICE AND PROCEDURE—Further and better particulars—A party is required to plead with full particulars—Where there is a failure, it is incumbent upon the other party to request they be provided—Failure to do so means the failing party is content with the pleadings—A belated claim for lack of particulars in response to an application for judgment based on the pleadings should not be sustained to avoid unnecessary delays and costs—National Court Rules, O8, r36.

4 Application by Gabriel Dusava (1998) SC581, MVIT v John Etape [1994] PNGLR 596, MVIT v Pupune [1993] PNGLR 370, PNGBC v Jeff Tole (2002) SC694, Pius Sankin v PNG Electricity Commission [2002] PNGLR 432, Public Officers Superannuation Fund Board v Sailas Imanakuan (2001) SC677, Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301, MVIT v Nand Waige [1995] PNGLR 202, Geoffrey McLaughlin v Air Niugini Pty Ltd [2000] PNGLR 398, Hornibrook NGI Pty Ltd v Lihir Management Co Pty Ltd [1998] PNGLR 52, Michael Newal Wilson v Harold Rosser Howard [1994] PNGLR 418, Akipa v Lowa [1990] PNGLR 502, Tau Gumu v PNGBC (2002) N2251, Dempsey v Project Pacific Pty Ltd [1985] PNGLR 93, Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112, Curtain Brothers (Queensland) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285, Kappo No 5 Pty Ltd v Wong [1998] PNGLR 544, Pastor Geyamgoling Saki v Kadir Contractors Ltd (1999) SC599 referred to

Facts

In a detailed statement of claim based on fraud arising out of a contractual relationship, the Plaintiff sought to recover a sum of K5.805 million with punitive damages, costs on indemnity basis and interest at commercial bank rates. The plaintiff paid the amount claimed to the Second Defendant ("Kumagai") which was over and above the contract price due to a conspiracy and fraud committed against it by Kumagai in association with the other named defendants. The plaintiff's pleadings detailed the relevant terms of the contract, how the payment of the K5.805 million was secured, how the proceeds were dealt with and who ultimately received them. Without verifying its defence, Kumagai generally denied the claim and without providing any reasons for its denials. Application was therefore made by the Plaintiff for a dismissal of Kumagai's defence and for judgment, costs and interests under National Court Rules O8, r27 and O12, r25(c) and r38.

Held:

1. The object of pleadings is to enable the parties to fully disclose in fairness the basis of their claim or a defence with particulars to avoid delay, trials by ambush, evasion and or attrition. They also enable the opposing party to know precisely the claim he or she is to meet and if need be, enable an out of Court settlement or a payment into Court. At the same time, pleadings enable the Court to know exactly what are the issues between the parties and what it is required to hear and determine. Followed MVIT v John Etape [1994] PNGLR 596; MVIT v Pupune [1993] PNGLR 370; PNGBC v Jeff Tole (2002) SC694; Pius Sankin v PNG Electricity Commission [2002] PNGLR 432.

2. Although O8, r21(1) of the National Court Rules permits a general denial as opposed to pleading the general issue which is prohibited by O8, r28, a party is nonetheless required to specifically plead to specific matters pleaded against him or her with particulars where that party is a party to the contract or the facts giving rise to the claim. A defendant is also required to verify is defence under O8, r24 where the claim is liquidated or is certain and or is easily ascertainable. A failure to do so may amount to an embarrassment, or have a tendency to delay or otherwise cause prejudice to the other party and may attract the application of O8, r27 and in the case of verification under O12, r25(c). Followed Tau Gumu v PNGBC (2002) N2251.

3. In the present case the Plaintiff's claim was for a specific and certain amount and "no other claim" within the meaning of National Court Rules O8, r24. The additional claims for punitive damages, costs and interests were consequential and dependent on the main claim for a recovery of the K5.805 million. Accordingly, Kumagai was required to verify its defence but it did not thereby attracting an application of O12, r25(c). Followed Dempsey v Project Pacific Pty Ltd [1985] PNGLR 93 and Michael Newal Wilson v Harold Rosser Howard [1994] PNGLR 418.

4. Also the Plaintiff's claim was based on a contract and facts in which Kumagai was a party. It was therefore reasonably expected and required to answer to each of the Plaintiff's allegations against it specifically with particulars and or reasons as to why it was denying the claims and was not prepared to admit or that they were not necessary for it to specifically plead to.

5. Kumagai's defence was too general and evasive when a specific response with particulars was reasonably expected with verification in accordance with National Court Rules O8, r24 thereby attracting the application of O12, r25(c). It also had the tendency to embarrass, prejudice and delay the proceedings thereby attracting the application of O8, r27.

6. In relation to the application for summary judgment under O12, r38, the exception to the summary judgment procedure as specified in National Court Rules O12, r37 are inappropriate to the circumstances of Papua New Guinea because:

(a) The exception list was for cases in which a defendant is entitled to a jury trial. By a deliberate act through the Constitution jury trials were done away with for PNG in place of judges and magistrates trained and experienced in the law; and

(a) If the intent of the procedure is to enable a plaintiff to get to judgment promptly where there is no viable defence of a defendant it makes no sense to retain the exception list. The requirements for signing summary judgment (i) affidavit evidence...