Kina Finance Ltd v Eddie Andiki

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 21 September 2017
• Citation: (2017) N7052
• Court: National Court
• Year: 2017
• Judgement Number: N7052

Full : WS NO.38 OF 2013; Kina Finance Limited and Eddie Andiki (2017) N7052

National Court: David, J

Judgment Delivered: 21 September 2017

N7052

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 38 OF 2013

BETWEEN:

KINA FINANCE LIMITED

Plaintiff

AND:

EDDIE ANDIKI

Defendant

Waigani: David, J

2017: 6 & 21 September

PRACTICE AND PROCEDURE - mixed claim for liquidated damages and possession of land - application to enter default judgment –relevant principles considered and applied – order granting leave to defendant to file defence out of time - time for compliance not specified – default of defendant not established - application refused - National Court Rules, Order 4 Rule 14, Order 8 Rule 4, Order 10 Rule 9A(15)(2)(c) , Order 12 Rules 4, 25, 27, 30 and 31.

PRACTICE AND PROCEDURE - application for summary judgment

– relevant principles considered and applied – summary judgment available only in a very clear case – summary judgment available even where the defendant has not filed his defence - application granted - National Court Rules, Order 8 Rule 4(2) - Order 12 Rule 38.

Cases cited:

Agnus Kunton v John Junias (2006) SC929

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

Curtain Brothers (Qld) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285

Commissioner General of Internal Revenue v Bougainville Copper Ltd (2009) N3857

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

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

Ralph Augustine Saulep v ANZ Banking Group (PNG) Ltd (2016) N6395

Severinus Ampaoi v Bougainville Copper Ltd (2012) SC1166

Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112

The State v Henshi Engineering Pty Ltd [1998] PGSC51, SC594

William Duma v Eric Meier (2007) SC898; PGSC 34

Counsel:

Bobby Nutley, for the plaintiff

No appearance for the defendant

RULING

6th & 21st September, 2017

1. DAVID, J: INTRODUCTION: This is a ruling on the plaintiff’s application moved pursuant to a notice of motion dated 22 June 2017 and filed on 23 June 2017 which was later amended by the filing of an amended notice of motion dated 20 July 2017 and filed on 21 July 2017 (the application) claiming the following principal orders:

Pursuant to Order 10 Rule 9A(15)(2)(c) and Order 12 Rules 25(b) and 27 of the National Court Rules, default judgment be entered in favour of the plaintiff against the defendant for the liquidated sum of K421,855.76.

Alternatively, pursuant to Order 12 Rule 38 of the National Court Rules, summary judgment be entered in favour of the plaintiff against the defendant for the sum of K421,855.76.

Pursuant to the Mortgage and Order 12 Rule 30 of the National Court Rules, the defendant deliver possession of the mortgaged land contained in State Lease Volume 29 Folio 132 and more particularly known as Allotment 25 Section 349 (Hohola), Gana Vali Street, Gerehu Stage 2, NCD, (the Land) to the plaintiff.

Pursuant to Order 13 Rule 3(2) of the National Court Rules, leave be granted to the plaintiff to issue a writ of possession.

Pursuant to the Mortgage and Order 14 Rule 33 and 34 of the National Court Rules, the Land be sold at a market price by the plaintiff or its agents to satisfy the judgment with the balance, if any, to be paid to the defendant.

Pursuant to the Mortgage, the defendant shall pay the plaintiff’s costs on a lawyer/client or indemnity basis.

The defendant shall pay interest to the plaintiff on the judgment for damages pursuant to the Judicial Proceedings (Interest on Debt and Damages) Act.

2. The application was moved ex parte or in the absence of the defendant because the Court was satisfied that he was served with the application and supporting affidavits.

EVIDENCE

3. To support the application, the plaintiff relies on the following documents:

Affidavit of Service of the Writ of summons and the Notice of Claim for Possession on the occupant by Graham Agisi sworn and filed on 20 February 2013 (Court Document No. 3);

Affidavit of Service of the Writ of Summons on the defendant of Narepa Hannevo sworn and filed on 3 October 2013 (Court Document No. 4);

Affidavit of Service by Post of Kiso Kip Garo sworn and filed on 3 October 2013 ( Court Document No. 7);

Affidavit of Search of Graham Agisi sworn and filed on 3 October 2013 (Court Document No. 8);

Affidavit in Support of Daniel Bidar sworn on 2 October 2013 and filed on 3 October 2013 ( Court Document No.10);

Affidavit of Debt of Manilah Apawa sworn and filed on 3 October 2013 ( Court Document No.11);

Affidavit of Service of the Motion and Supporting Affidavits of Graham Agisi sworn and filed on 14 October 2013 (Court Document No. 12);

Affidavit of Search of Graham Agisi sworn and filed on 10 December 2013 (Court Document No. 14);

Affidavit of Search of Narepa Hanneva sworn on 7 October 2014 and filed on 8 October 2014 (Court Document No. 18);

Affidavit in Support of Nanadai Asigau sworn on 21 June 2017 and filed on 23 June 2017( Court Document No.23);

Affidavit of Search of Morea Raka sworn on 22 June 2017 and filed on 23 June 2017 ( Court Document No. 24);

Affidavit of Service of Flora Genia sworn and filed on 26 June 2017 (Court Document No. 25);

Affidavit of Service of Morea Raka sworn and filed on 26 July 2017 (Court Document No. 28);

Affidavit of Service of Morea Raka sworn on 2 August 2017 and filed on 3 August 2017 (Court Document No. 30);

Affidavit of Service of Flora Genia sworn on 3 August 2017 and filed on 4 August 2017 (Court Document No.31); and

Affidavit of Service of Flora Genia sworn and filed on 5 September 2017 (Court Document No. 32).

BRIEF BACKGROUND

4. The plaintiff, finance company and the defendant entered into a loan agreement No.PM60907815 comprising a Letter of Offer dated 15 July 2011 which was executed on 18 July 2011 and the Memorandum of Common Provisions Versions 1.1 dated 1 February 2010 (the loan agreement) whereby the plaintiff agreed to lend to the defendant cash advances by way of a housing loan up to a maximum of K264,00.00 secured by a registered mortgage number S52180 over the defendant’s property namely, Allotment 25 Section 349, Hohola, (Gana Vali Street, Gerehu Stage 2) NCD described in State Lease Volume 29 Folio 132 (the property). Under the loan agreement, the monthly installment was K2, 828.89 until final repayment on 6 July 2026. The plaintiff asserts that the defendant has defaulted in meeting his loan repayments under the loan agreement by paying K509.18 or other lesser amounts which were far less than the agreed monthly instalments and the default is continuing therefore it has exercised its powers of foreclosure and sale under the registered mortgage.

5. On 30 January 2017, the plaintiff filed a writ of summons endorsed with a statement of claim claiming, inter alia, liquidated damages in the sum of K277,364.93 being for outstanding loan; an order that the defendant deliver possession of the land to the plaintiff; an order that leave be granted to the plaintiff to issue a writ of possession; and in addition and in the alternative, an order that the plaintiff sell the land at market price then apply the sale proceeds to satisfy the plaintiff’s claim for damages, costs and interest owing to the plaintiff at the time of sale with the balance to be paid to the defendant.

6. On 1 February 2013, the plaintiff filed a Notice of Claim for Possession of the property pursuant to Order 4 Rule 14 (1)(c) of the National Court Rules.

7. On 18 February 2013 at about 10:40 am, one Graham Agisi, a legal clerk employed by O’Briens Lawyers (O’Briens) attended the property and served a sealed copy of the writ and the Notice of Claim for Possession on one Henry Hapu an occupier of the property and who identified himself as the house keeper: Affidavit of Service of Graham Asigi sworn and filed on 20 February 2013.

8. On 4 July 2013 at about 10:00 am, one Narepa Hannevo, a legal clerk employed by O’Briens attended the place of employment of the defendant located at PNG Power Limited’s head office at Hohola and personally served a sealed copy of the writ on the defendant: Affidavit of Service of Narepa Hannevo sworn and filed on 10 July 2013.

9. On 11 July 2013, the defendant filed a Notice of Intention to Defend these proceedings.

10. The defendant did not file his defence within the time limited for him to file his defence under the National Court Rules so on 3 October 2013, the plaintiff filed a notice of motion seeking default judgment.

11. On 12 December 2013, the defendant filed a notice of motion seeking leave to file his defence out of time.

12. On 10 July 2015, the parties moved their respective applications before Sakora, J, both of which were contested.

13. On 10 April 2017, His Honour delivered a ruling in which he refused the plaintiff’s application for default judgment and granted leave to the defendant to file his defence out of time. The minute of the order does not show how much time was given to defendant to file his defence.

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