Kumul Builders Pty Ltd v Post and Telecommunication Corporation [1991] PNGLR 299

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: [1991] PNGLR 299
• Date: 16 August 1991
• Year: 1991

Full Title: Kumul Builders Pty Ltd v Post and Telecommunication Corporation [1991] PNGLR 299

National Court: Sheehan J

Judgment Delivered: 16 August 1991

1 Summary judgment—National Court Rules O8 r38—application based on unequivocal terms of contract—order for summary judgment

2 Building contracts—substantial performance

3 PRACTICE AND PROCEDURE—Summary judgment—Facts not disputed—Determination of points of law to be made—National Court Rules, O12, r38.

4 BUILDING AND ENGINEERING CONTRACTS—Construction and effect—Performance bond—Release on certificate of substantial completion—Release obligatory.

Held:

On an application for summary judgment under O12, r38 of the National Court Rules, where the facts are not in dispute, the Court should determine any point of law which may finally settle matters between the parties.

European Asian Bank v Punjab Sind Bank (No 2) [1983] 1 WLR 642; [1983] 2 All ER 508, adopted and applied.

Held further:

A clause in a building contract which provided that "within seven days after the receipt of the Project Manager's certificate of substantial completion as referred to in clause 10.9 the Principal shall by notification in writing, advise the sureties accordingly. All moneys held as security against the satisfactory discharge of the contract shall be refunded within seven days" was to be construed as requiring obligatory payment on advice of completion to the sureties, sufficient to enter summary judgment thereon.

European Asian Bank v Punjab Sind Bank (No 2) [1983] 1 WLR 642; [1983] 2 All ER 508, Imak International Pty Ltd v Pacific Wholesale Freezers Pty Ltd (1991) N976 and Westminster Corporation v Jarvis & Sons [1970] 1 WLR 637; [1970] 1 All ER 943 referred to

Motion

This was an application for summary judgment under O12, r38 of the National Court Rules.

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Sheehan J: Before the Court is an application for summary judgment. The applicant, the plaintiff, is a building contractor which contracted with the defendant to construct certain buildings for the sum of K799,600.96.

Pursuant to a condition prescribed by the contract between the parties, the plaintiff also supplied a bond to ensure due performance of the work. It is the plaintiff's contention that though the work has now been duly carried out the defendant has failed to release the bond. The effect of that, has been to tie up substantial funds required for the plaintiffs ongoing business.

The plaintiff has therefore issued a writ seeking an order that the bond be released. With the defence now filed, summary judgment is sought under O12, r38 of the National Court Rules on the grounds that no defence has been disclosed and in fact no defence is available to the defendant.

The defence accept the factual situation pleaded by the plaintiff but assert that defects in the construction need to be cured and the maintenance...