Rumbam Engineers Limited and Perelo & Associates Contractors v Hiri 152 Developments Ltd and Papa Resource Developments Ltd and Buria Rearea Caution Bay Ltd and Boera Enterprises Ltd and Porebada Investments Ltd (2020) N8447

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 11 August 2020
• Court: National Court
• Citation: (2020) N8447
• Docket Number: OS (COMM) NO. 392 OF 2018 (2)
• Year: 2020
• Judgement Number: N8447

Full Title: OS (COMM) NO. 392 OF 2018 (2); Rumbam Engineers Limited and Perelo & Associates Contractors v Hiri 152 Developments Ltd and Papa Resource Developments Ltd and Buria Rearea Caution Bay Ltd and Boera Enterprises Ltd and Porebada Investments Ltd (2020) N8447

National Court: Anis J

Judgment Delivered: 11 August 2020

N8447

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (COMM) NO. 392 OF 2018 (2)

BETWEEN

RUMBAM ENGINEERS LIMITED

First Plaintiff

AND

PERELO & ASSOCIATES CONTRACTORS

Second Plaintiff

AND

HIRI 152 DEVELOPMENTS LTD

First Defendant

AND

PAPA RESOURCE DEVELOPMENTS LTD

Second Defendant

AND

BURIA REAREA CAUTION BAY LTD

Third Defendant

AND

BOERA ENTERPRISES LTD

Fourth Defendant

AND

POREBADA INVESTMENTS LTD

Fifth Defendant

Waigani: Anis J

2020: 15th June & 11th August

NOTICE OF MOTION – application for summary judgment – Order 12 Rule 38(1) – National Court Rules – leave granted, and application heard ex-parte – requirements for grant of summary judgment discussed – judgment based on admission - Order 9 Rule 30(1) – National Court Rules – whether there was evidence of admission – considerations – whether valid cause of action disclosed – whether pleadings support valid cause of action – exercise of discretion

Cases Cited:

Davidwestern Advertising Group Ltd v. Hiri 152 Developments Ltd and Ors (2019) N7952

Christopher Smith v. Ruma Construction Ltd (2000) N1982

Kerry Lerro trading as Hulu Hara Investments Limited v. Philip Stag, The State & Ors (2006) N3050

Dobiam Kope v. Tourism PNG Limited (2006) N3175

Imawe Bogasi Land Group Inc -v- Bank South Pacific Limited and Toale Hongiri ILG & Ors (2011) SC1102

Chief Collector of Taxes -v- TA Field Pty Limited [1975] PNGLR 144

Severinus Ampaoi v. Bougainville Copper Ltd (2012) SC1166

Counsel:

Mr S Kil, for the Plaintiffs

Nil appearances by the defendants

RULING

11th August 2020

1. ANIS J: The plaintiffs applied for summary judgment by their notice of motion filed on 3 October 2019 (NoM). I reserved my ruling to a date to be advised.

2. I rule on it now.

BACKGROUND

3. These are claims that are based on invoices for services alleged to have been rendered under various contracts in 2012. This proceeding is related to proceedings WS 1075 of 2018 Davidwestern Advertising Group Ltd v. Hiri 152 Developments Ltd and Ors (proceeding WS 1075 of 2018). Proceeding WS 1075 is also pending before the National Court. The company Davidwestern Advertising Group Ltd (principal contractor) was the principal contractor. Various developments had been undertaken at various Hiri villages or areas in the Central Province. The principal contractor and others had been engaged by the defendants to carry out various civil works including engineering, construction, road grading and sealing to and from the various Hiri villages within the Liquefied Natural Gas (LNG) impact areas in the Central Province. In turn, the principal contractor had engaged sub-contractors which included the plaintiffs in this proceeding, to carry out work.

4. In this proceeding, the 1st plaintiff claims that in 2012, the defendants had directly engaged it and the principal contractor, to perform the works as described above. The 2nd plaintiff on the other hand claims that he had been engaged by the principal contractor and the defendants to carry out similar works.

5. Work appeared to have been performed by the principal contractor and the sub-contractors including the plaintiffs. Monies appeared to have been owed by the defendants to the principal contractor and the plaintiffs. So in 2014, the principal contractor and the plaintiffs commenced proceeding described as WS 654 of 2014 Davidwestern Advertising Group Ltd, Rumbam Engineers Ltd and Ors v. Hiri 152 Developments Ltd and Ors (WS 654 of 2014) against the defendants herein and the Central Provincial Government. They had alleged that despite the work that they had undertaken as agreed to under the various pleaded contracts in their pleadings, the defendants and the Central Provincial Government, had failed to settle their claims or invoices that had been submitted. They claimed a total sum of K9, 122,101.40 against the defendants in the said proceeding. Later and after some negotiations, proceeding WS 654 of 2014 was discontinued. A consent order and a deed of settlement and release were signed between the parties. And from these, a sum of K4,500,000 was agreed to by the parties and was paid out by the Central Provincial Government, to the principal contractor to be distributed to the sub-contractors which included the plaintiffs herein.

6. The plaintiffs herein commenced this new proceeding. They allege that despite the deed of settlement and release, the consent orders that had been entered, and the payment of K4.5 million in proceeding WS 654 of 2014, the defendants still owe them monies.

MOTION

7. The main relief sought in the NoM reads:

Pursuant to Order 12 Rule 38(1) and Order 9 Rule 30(1) of the National Court Rules, Summary Judgment be entered against the first, second, third, fourth and fifth defendants, for damages to be assessed.

ISSUES

8. The main issues are, (i), whether summary judgment should be entered in favour of the plaintiffs, and (ii), whether judgment should be entered based on admissions.

SOURCES

9. Order 12 Rule 38(1) & (2) and Order 9 Rule 30(1), of the National Court Rules (NCR) read:

38. Summary judgement. (13/2)

(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.

……

30. Judgement on admissions. (18/3)

(1) Where admissions are made by a party, whether by his pleading or otherwise, the Court may, on the application of any other party, direct the entry of any judgement or make any order to which the applicant is entitled on the admissions.

10. The requirements before National Court may grant summary judgment in a matter is settled in the case law. I need not refer to them all here. In Christopher Smith v. Ruma Construction Ltd (2000) N1982 for example, the Court states the requirements as follows:

1. The applicant must verify by affidavit evidence the cause of action.

2. The applicant must swear to a belief on his part that the respondent (defendant) has no defence to the cause of action (or the pleadings).

11. What this means is that there must be no serious issues of law and fact raised either in the pleadings or evidence. Summary judgment must only be granted in the clearest of cases. See cases: Kerry Lerro trading as Hulu Hara Investments Limited v. Philip Stag, The State & Ors (2006) N3050; Dobiam Kope v. Tourism PNG Limited (2006) N3175; Imawe Bogasi Land Group Inc -v- Bank South Pacific Limited and Toale Hongiri ILG & Ors (2011) SC1102 and Chief Collector of Taxes -v- TA Field Pty Limited [1975] PNGLR 144.

12. As for judgment based on admissions, the Supreme Court in Severinus Ampaoi v. Bougainville Copper Ltd (2012) SC1166, held amongst others, the following:

2. According to O 9, r 30(1) of the National Court Rules, judgment may be entered against a party where admissions are made by the party in his pleadings or otherwise. The phrase “otherwise” covers other circumstances where admissions are made by the party such as affidavits, letters or answers to interrogatories. Alfred Alan Daniel -v- Pak Domoi Ltd (2009) SC970, John Kul -v- The State (2010) N3898 and TNA Limited -v- Paul Kua & Kongo Coffee Limited (2011) N4225 referred to. (per Makail, J).

3. For judgment by admissions to be granted, an applicant must show a clear and unanswerable case or the admissions must be strong and unambiguous. Alfred Alan Daniel -v- Pak Domoi Ltd (2009) SC970, Imawe Bogasi Land Group Inc -v- Bank South Pacific Limited and Toale Hongiri ILG & Ors (2011) SC1102, TNA Limited -v- Paul Kua & Kongo Coffee Limited (2011) N4225 and Dep International Private Limited -v- Ambogo Sawmill Pty Limited [1987] PNGLR 117 referred to. (per Makail, J).

CONSIDERATION

13. The best place to begin would be to consider the pleadings, namely, the Amended Statement of Claim filed on 26 July 2019 (ASoC). I have considered the pleadings in the ASoC. The ASoC appears to plead the background of how the various contracts had been entered into in 2012 or earlier. It also pleads facts relating to proceeding WS 654 of 2014, the consent orders and the deed that was signed between the parties in 2015, and for the release and payment of the K4.5 million by the Central Provincial Government to the parties...