Kots Investment Ltd v Philip Toa

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J
• Judgment Date: 13 November 2017
• Citation: (2017) N7064
• Court: National Court
• Year: 2017
• Judgement Number: N7064

Full : WS 1058 of 2016 (COMM); Kots Investment Limited trading as Kots Catering v Philip Toa, Chairman of Simbu Teachers College Governing Council and Simbu Teachers College and Hon. Noah Kool, MP Governor of Simbu Province and Simbu Provincial Government (2017) N7064

National Court: Hartshorn J

Judgment Delivered: 13 November 2017

N7064

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 1058 of 2016 (COMM)

BETWEEN:

KOTS INVESTMENT LIMITED

trading as Kots Catering

Plaintiff

AND:

PHILIP TOA,

Chairman of Simbu Teachers

College Governing Council

First Defendant

AND:

SIMBU TEACHERS COLLEGE

Second Defendant

AND:

Hon. NOAH KOOL, MP

Governor of Simbu Province

Third Defendant

AND:

SIMBU PROVINCIAL GOVERNMENT

Fourth Defendant

Waigani: Hartshorn J.

2017: 9th & 13thNovember

Application to set aside summary judgment

Cases cited:

Wellcos Engineering Ltd v. Yawari (2008) N3443

Counsel:

Mr. Y. Awi, for the Defendants

13th November, 2017

1. HARTSHORN J: This is a decision on an application to set aside the summary judgment that was entered in this proceeding against the first, second and fourth defendants.

2. I allowed the application to proceed in the absence of representation of the plaintiff as I was satisfied that the lawyers for the plaintiff were served with the relevant notice of motion and were made aware of the hearing date and time of the application.

3. The summary judgment sought to be set aside was entered on 9th March 2017 (summary judgment). The defendants rely upon Order 12 Rules 8(2)(a) and 35 National Court Rules to set aside the summary judgment.

4. Order 12 Rule 8(2)(a) National Court Rules is as follows:

“The Court may, on terms, set aside or vary a judgement-

(a) where the judgement has been entered pursuant to Order 12 Division 3 (default judgement); or….”

5. The summary judgment was entered pursuant to Order 12 Rule 38 which is part of Division 4 of Order 12. So Order 12 Rule 8(2)(a) cannot be relied upon to set aside the summary judgment.

6. Order 12 Rule 35 National Court Rules is as follows:

“The Court may on such terms as it thinks just, set aside or vary a judgement entered in pursuance of this Division.”

7. Order 12 Rule 35 is part of Division 3 of Order 12. Again, the summary judgment was entered pursuant to a Rule that is part of Division 4 of Order 12, not Division 3. So Order 12 Rule 35 cannot be relied upon to set aside the summary judgment.

8. Consequently the defendants’ application to set aside the summary judgment must fail as must the consequential orders sought concerning filing a defence out of time.

9. The defendants, in the alternative, seek to dismiss the proceeding. As I mentioned to counsel for the defendants when he commenced his submissions, an application to dismiss a proceeding cannot be heard until after a judgment that has been entered in that proceeding, has been set aside. I refer to my decision of Wellcos Engineering Ltd v. Yawari (2008) N3443 in this regard.

10. Consequently, all of the relief sought by the defendants should be refused.

Orders

11. The Orders of the Court are:

a) All of the relief sought in the Notice of Motion of the defendants’ filed 24th March 2017 is refused;

b) No order as to costs;

c) Time is abridged.

_____________________________________________________________

Ame Lawyers: Lawyers for the Plaintiff

Gagma Legal Services: Lawyers for the Defendants