William Duma v Eric Meier & Neil Matheson as Executors of the Estate of the Deceased, Peter Goodenough (2007) SC898

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 02 November 2007
• Citation: (2007) SC898
• Docket Number: SCA NO. 36 OF 2006
• Year: 2007

Full Title: SCA NO. 36 OF 2006; William Duma v Eric Meier & Neil Matheson as Executors of the Estate of the Deceased, Peter Goodenough (2007) SC898

Supreme Court: Injia, DCJ, Batari & Gabi, JJ

Judgment Delivered: 2 November 2007

PRACTICE AND PROCEDURE—Proceedings commenced by way of Originating Summons—No requirement to file defence—Affidavit evidence to disclose triable issues—Notice of Motion in identical terms as Originating Summons—Abuse of process.

Cases Cited

Bruce Tsang v Credit Corporation (PNG) Limited [1993] PNGLR 112; Chief Collector of Taxes v T. A. Field Pty Ltd [1975] PNGLR 144; Curtain Brothers (Queensland) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285; Dep International Private Ltd v Ambogo Sawmill Pty Ltd [1987] PNGLR 117; Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301; John Momis & Others v Attorney-General & Others (2000) N1951; Kumul Builders Pty Ltd v Post and Telecommunication Corporation [1991] PNGLR 299

___________________________

DECISION

1 BY THE COURT: Introduction: This is an appeal against the decision of His Honour, David J., given on 30 March 2006 whereby His Honour dismissed both applications, the appellant’s application for summary judgment and the respondents’ application for dismissal of the proceedings, and ordered the parties to consider pursuing the proceedings on pleadings pursuant to O4, r35 of the National Court Rules.

2 The application for summary judgment was refused because the validity of the late Peter Goodenough’s letter dated 19 September 2003 was queried by the Executors of the Estate and that it was an abuse of process.

Background

3 William Duma, the appellant, was until July 2002, a lawyer with Blake Dawson Waldron Lawyers, Port Moresby. The late Peter Goodenough, the deceased, commenced proceedings against the State in proceedings WS No. 524 of 1997 claiming damages for loss of property in Bougainville. On 15 August 2003, the Supreme Court awarded the sum of K21, 191,937.00 plus interest at 8 percent from the date of the issue of Writ to the date of judgment, which amounts to K31, 703,200.00, to the deceased.

4 The appellant alleges that the deceased consulted him on an informal basis with regards to his claim against the State. On 19 September 2003, the deceased undertook to pay the appellant 10 percent of any judgment sum he would receive from his claim for his assistance in pursuing the claim. The letter of 19 September 2003 is in these terms:

“19th September 2003

P O Box 7367, CAIRNS

QLD

Fax 61 740 41 21 68

Mr William Duma

P O Box 850

Port Moresby

National Capital District

Dear Sir

GOODENOUGH—V—THE STATE

...