Michael Newal Wilson v Harold Rosser Howard

• Jurisdiction: Papua New Guinea
• Citation: [1994] PNGLR 418
• Date: 26 April 1993
• Court: Supreme Court
• Year: 1994

Supreme Court: Hinchliffe J, Konilio J, Jalina J

Judgment Delivered: 26 April 1993

1 Practice and procedure—striking out defence—general denial only pleaded—defence struck out—National Court Rules O8 r27—National Court Rules O8 r28

2 Practice and procedure—liquidated claim—defence and general denial—verification of defence by affidavit—mandatory—National Court Rules O8 r24

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By the Court: This is an appeal against a decision of the National Court on 1 August, 1992 whereby the National Court ordered that:

"(1) The Defence of the Defendant filed on 18 December, 1991 be struck out.

(2) The judgment be entered for the Plaintiff in the sum of K42,081.78 together with interest at the rate of 15.25% per annum from 27th August 1991 to the date of judgment and continuing.

(3) The Defendant pays the plaintiffs costs."

STATEMENT OF CLAIM

1. By an agreement in writing made between the Plaintiff and the Defendant in or about March, 1991 the Plaintiff agreed to sell and the Defendant agreed to purchase the Plaintiff's share and interest in the legal practice of Warner Shand, Lawyers, Mt Hagen including the units and goodwill thereof. At the trial the Plaintiff will refer to the said agreement as if the same were set out herein in full.

2. There were express terms of the said agreement inter alia as follows:

(a) The purchase price shall be K55,000 payable by the Defendant to the Plaintiff as to K8,250 upon the execution of the agreement and the balance thereof by equal instalments of K2,377 each at intervals of one month calculated from the date of the agreement, the first such payment to be made one calender month from the date thereof;

(b) the said instalments shall be paid to the Plaintiff 's bank account No. 3803597801 at the Mt Hagen Branch of Westpac;

(c) interest at the rate of 15.25 percent per annum shall be paid by the Defendant on such much of such balance of the consideration as shall remain unpaid from time to time;

(d) time shall be of the essence.

3. There were further express terms of the agreement inter alia as follows:

(a) if the Defendant fails to comply with the provisions referred to in the last preceding paragraph then he shall be immediately in default and breach of the...