Curtain Brothers (Queensland) Pty Ltd and Kinhill Kramer Pty Ltd v The State

• Jurisdiction: Papua New Guinea
• Judge: Jalina J:
• Judgment Date: 09 November 1993
• Judgement Number: SC450
• Year: 1993
• Citation: [1993] PNGLR 285
• Court: Supreme Court

Supreme Court: Kapi DCJ, Hinchliffe J, Jalina J

Judgment Delivered: 9 November 1993

SC450

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA 75 OF 1993

BETWEEN:

CURTAIN BROS (QLD) PTY LTD

First Appellant

AND:

KINHILL KRAMER PTY LTD

Second Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Respondent

Waigani: Kapi DCJ, Hinchliffe J, Jalina J.

30th June, 1st July and 9th November, 1993

Summary Judgement — National Court Rules, O 12 r 38 — The

elements to be satisfied in such an application — The appropriateness of the rule is not relevant — Evidence of defence — on facts/law may be raised — Evidence must be admissible and precise — Responsibility of lawyers for Defendant.

Contract — When Terms of Contract are contained in writing —

No evidence to be allowed to add to, subtract from, or vary or qualify the written contract.

Held: (Jalina J dissenting)

(1) Leave to appeal granted.

(2) There was evidence of a binding contract between the parties.

(3) There was evidence of performance of the contract.

(4) The Respondent failed to raise any defence on the facts and law.

(5) It is not permissable to allow any evidence to add to, subtract from, vary or qualify a written contract.

CASES CITED

Bruce Tsang -v- Credit Corporation (PNG) Limited

(Unreported Judgment of the Supreme Court No SC437 dated 30 April 1993)

The Chief Collector of Taxes -v- T A Field Pty Ltd [1975] PNGLR 144

Carltona Ltd -v- Commissioners of Works and Ors (1943) 2 All E R 560

Minister for Lands -v- Frame [1980] PNGLR 430

South Pacific Post Pty Ltd -v- Ephraim Ikenna Nwokolo [1984] PNGLR 38

Bank of Australia -v- Palmer [1897] AC 540

Reliance Marine Insurance Duder [1913] 1 KB 265

Tsang Chuen -v- Li Po Kwai [1932] AC 713

O'Connor -v- Hume [1954] 1 WLR 824

Chitty on Contracts (25th Ed) paragraph 802

Preston -v- Luck (1884) 36 CLR 60

K/S A/S Oil Transport -v- Saudi Research and Development Corporation Ltd

(The "Gudermes") [1984] 1 Lloyd's Report 5

United Timbers (PNG) Pty Limited -v- Mussau Timber Development Pty Limited (Unreported Judgement of the National Court No N645 dated 2 December 1987)

Imak International Pty Limited -v- Pacific Wholesale Freezers Pty Limited(Unreported Judgment of the National Court No N976 dated 26 March 1991)

Reardon Smith Line Ltd v. Ynguar Hansen Tangen [1976] W.L.R. 989

Bacchus Marsh Concentrated Milk Co Ltd v. Joseph Nathan & Co Ltd (1919) 26 CLR 410

Meehan v. Jones (1982) 56 ALJR 813

Straits Contracting (PNG) Pty Ltd -v- Branfill Investments Ltd [1988] PNGLR 239

LEGISLATION CITED

National Court Rules O 12 r 38, O 12 r 38(1), 0 8 r 4 (1)(a), and O 8

r 4(2)

Supreme Court Act (ch 37) ss 14(3)(b), 46(1), and 6

Constitution s 184 and Sch 2.2

Public Finance Management Act 1986 s 46

(International Agencies) Act s 11 (ch 132)

OXIV of the English Supreme Court Rules

P Lowing with E G Andersen for Appellants

I R Molloy for Respondent

Kapi DCJ & Hinchliffe J:

On or about the 27th May 1992, the Appellants and the Respondent entered into a written contract for the design and construction of a road from Champion Parade, Port Moresby, via Burns Peak, to Waigani, to be known as the "Poreporena Freeway". The contract was worth US$67,619,500. This contract was cancelled by the Respondent on or about the 27th August 1992. The Appellants took out a writ of summons (W.S. 734 of 1992) seeking damages for wrongful termination of this contract. This action was discontinued. This cause of action has no relevance to this appeal except that it provides the background to the negotiations that took place to settle the matter.

Subsequent to this, a number of meetings took place between the agents of all the parties with a view to reaching a settlement. At a meeting on the 17th November 1992, it is alleged that the parties reached an agreement to settle the matter for US$14 million. It is alleged that the terms of the agreement are contained in a hand-written document as follows:

"Poreporena Freeway.

17.11.92

In the meeting held at DOT office between Mr C. Millar and Mr. P. Aisi they agreed to a compensation claim amount of US$14,000,000 subject to the Consortium providing satisfactory evidence to justify their claim.

The Consortium claim will be devided 6/14 to Kinhill Kramer and 8/14 to Curtain Bros as detailed in their August 26th letter.

Signed C.S. Millar (Signature)

17.11.92

Signed P. Aisi (signature)

Witnessed R. Miria."

The Appellants commenced an action against the Respondent on the basis of the hand-written document referred to above. The writ was issued on the 18th March 1993 and endorsed with a claim for US$14 million. The Respondent filed Notice of Intention to Defend on the 18th March 1993.

On the 23rd March 1993, the Appellants filed a motion in the National Court for summary judgement pursuant to O. 12 r. 38 of the National Court Rules. The National Court dismissed the application.

As this was an interlocutory judgement, the Appellants applied for leave to appeal against the decision pursuant s 14(3)(b) of the Supreme Court Act. (ch 37)

Having regard to the reasons for decision by the trial judge and the grounds relating to the admissibility of certain paragraphs of the Respondent's affidavits and the law relating to the proper application of O. 12 r. 38 of the National Court Rules, we would grant leave to appeal in this matter.

The grounds of appeal upon which the Appellants rely are identical to the grounds for leave to appeal. The Notice of Appeal raises several grounds of appeal. They fall into the following categories:

1. That the trial judge failed to deal with the defences raised.

2. That the trial judge failed to deal with the objections raised with regard to the admissibility of certain paragraphs of the Respondent's affidavits.

3. That the trial judge erred in concluding that there were triable issues for proper resolution at the trial.

O. 12 r. 38 reads:

"38. Summary Judgement.

(1) Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff-

(a) there is evidence of the facts on which the claim or part is based; and

(b) there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed, the Court may, by order, direct the entry of such judgement for the plaintiff on that claim or part, as the nature of the case requires.

(2) Without limiting Sub-rule (1), the Court may under that Sub-rule direct the entry of judgement for the plaintiff for damages to be assessed.

(3) In this rule, 'damages' includes the value of goods."

In Bruce Tsang -v- Credit Corporation (PNG) Limited (Unreported Judgement of the Supreme Court dated 30 April 1993, SC 437) the Supreme Court said:

"There are two elements involved in this rule:

(a) evidence of the facts proving the essential elements of the claim; and

(b) that the plaintiff or some responsible person gives evidence that in his belief there is no defence.

In this case, there is no issue in relation to the first element.

As to the second element, the plaintiff must show in absence of any defence or evidence from the defendant, that, in his belief the defendant has no defence. If a defence is filed, or, evidence is given by the defendant as in this case, the plaintiff must show that upon the facts and/or the law, the defendant has no defence. The plaintiff will not be entitled to summary judgement, if there is a serious conflict on questions of fact or law. Whether a case should go to trial on these issues will be determined on the facts of each case. However, the authorities show that the summary jurisdiction should only be invoked in a clear case. see The Chief Collector of Taxes -v- T A Field Pty Ltd [1975] PNGLR 144."

In dealing with the present case, the trial judge said:

"The cause of action, upon the basis of which the Plaintiffs apply for Judgement, is undeniably based on contract. The Plaintiffs have contended that the contract is wholly in writing entered into between the first and second Plaintiffs of the one part and the Defendant of the other part, on 17th November 1992."

The trial judge then set out the hand-written contract and then continued:

"The Plaintiffs submitted that a valid and binding contract was formed on 17th November, 1992 when the parties (by their duly authorised agents) signed that hand-written document. The Plaintiffs further submitted that they have duly performed the contract condition by providing to the Defendant 'satisfactory evidence' to justify their claim, between November 1992 and March 1993. These evidentiary affidavits and Statutory Declarations were amply documented before me on this application."

After making reference to the affidavits of the Respondent, the trial judge concluded:

"There is evidence of the facts upon which the claim is based, and there is evidence by the Plaintiffs."

In these passages, the trial judge concluded:

1. That there was a...