Barlow Industries Pty Ltd v Pacific Foam Pty Ltd

• Jurisdiction: Papua New Guinea
• Citation: [1993] PNGLR 345
• Date: 19 August 1993
• Court: Supreme Court
• Year: 1993

Supreme Court: Los J, Konilio J, Brown J

Judgment Delivered: 19 August 1993

1 Practice and procedure—judgment by default—statement of claim including various types of prayer for relief—whether "liquidated claim" part of prayer—equitable claim does not fall within understood "liquidated" amount—must be able to quantify claim on material in statement for "mixed claims" to be included in such statement of claim—claim for "account, damages or alternatively the sum of K213,062.30" pleaded as a "mixed claim"

2 Appeal—from decision of National Court refusing to set aside judgment by default—equitable claim does not fall within the understood "liquidated amount"—need to be able to quantify claim on material in statement for "mixed claims" to be included in such statement of claim—a claim for "account, damages or alternatively the sum of K213,062.30" pleaded as a "mixed claim"

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Los J:

I have read the judgment of Brown J and agree with him. I would uphold the appeal.

Konilio J:

I would uphold the appeal for the reasons given in Brown J's judgment.

Brown J:

The appellant originally claimed relief in his writ of summons in these terms:

"And the Plaintiff claims—

A. An account of how the Defendant has used or applied the sum of K213,062.30.

B. Damages, alternatively the sum of K213,062.30.

C. Aggravated or exemplary damages.

D. Interest on any sum found to be due pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act (Ch52).

E. An order for payment by the Defendant to the Plaintiff of all monies found to be due to him on the taking of an account.

F. Further or other relief".

On the 28 April 1992, judgment in default of the defendants appearance or defence was entered for K213,062.30 plus costs of K180. No other steps were taken by plaintiff to pursue other claims.

On 15 May 1992, by motion, the defendant sought to set the default judgment aside. The motion was heard by Sir Mari Kapi DCJ in the National Court on the 1 and 3 June and was dismissed. The Deputy Chief Justice dealt with two grounds relied on by the defendant in its motion. The first was that a claim for both a liquidated amount and a claim for unspecified damages could not be joined in a statement of claim. The Judge relied on the rationale expressed in Watson Specialised Tooling Pty Ltd v Stevens [1991] 1 Qd R 85 quoting at 93:

"What is the plaintiff's claim in the writ to which the defendants did not appear? It seems to me that the defendants have admitted either the liquidated demand of $291,823.20 or the alternative claim for damages for commission, but not both. They are entitled to say that the Court will not permit judgment to go against them for both but only one of them as they are claimed in the alternative",

and was satisfied the plaintiff was entitled to and had, elected. He said:

"In accordance with (the quoted passage in Watsons case) it is proper to enter for the liquidated sum but not for both. This is not irregular."

In argument before us the appellant/defendant has pointed to various rules of Court which he says, illustrate why the trial Judge was in error. O12 r27, r28 while dealing with liquidated and unliquidated demands...