Toyota Tsusho (PNG) Ltd v James Kowa

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 19 May 2017
• Citation: (2017) N7048
• Court: National Court
• Year: 2017
• Judgement Number: N7048

Full : WS NO.1208 OF 2014; Toyota Tsusho (PNG) Limited v James Kowa trading as Kalanga Hire Car (2017) N7048

National Court: David, J

Judgment Delivered: 19 May 2017

N7048

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO.1208 OF 2014

BETWEEN:

TOYOTA TSUSHO (PNG) LIMITED

Plaintiff

AND:

JAMES KOWA trading as KALANGA HIRE CAR

Defendant

Waigani: David, J

2017: 12 April & 19 May

PRACTICE AND PROCEDURE – application for summary judgment – whether summary judgment can be entered - relevant considerations – application of considerations – application granted - National Court Rules, Order 12, Rule 38.

PRACTICE AND PROCEDURE – application for preservation of property-defendant had a prior claim with the plaintiff - cheque drawn by defendant to purchase motor vehicle from a motor vehicle dealership–motor vehicle delivered to defendant upon delivery of cheque-after delivery of the motor vehicle, the defendant transferred funds between his accounts resulting in cheque being dishonoured – despite demands, defendant refused to pay for the motor vehicle or return it to the plaintiff - peculiar facts and circumstances of case- application granted - National Court Rules, Order 4, Rule 49(9) and Order 14 Rule 10(1).

Cases cited:

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

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

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

Dep International Private Ltd v Ambogo Sawmill Pty Ltd [1987] PNGLR 117

Gabriel Yer v Peter Yama (2009) SC996

Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301

John Momis v Attorney General [2000] PNGLR 109

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

NCDC v Yama Security Services Pty Ltd (2003) SC707

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] SC594

Vitus Kais v Sali Tagau; Tropic Timbers Ltd v Vitus Kais (2012) N4810

William Duma v Eric Meier (2007) SC898

Counsel:

R Bradshaw, for the Defendant/Applicant

K Kil, for the Plaintiff/Respondent

19th May, 2017

1. DAVID J: INTRODUCTION: This is a ruling on an application seeking principally summary judgment to be entered for the relief sought in paragraphs (a), (b), (d) and (e) of the plaintiff’s statement of claim pursuant to Order 12 Rule 38(1) of the National Court Rules. The alternative relief sought is an order for the defendant to deliver to the plaintiff’s Goroka Branch within 7 days the motor vehicle the subject of the plaintiff’s claim and to be held by the plaintiff until determination of these proceedings or until further order of the Court. The application was moved by the plaintiff pursuant to an amended notice of motion filed on 16 May 2016.

2. The defendant strongly contests the application.

EVIDENCE

3. In support of its application, the applicant relies on the affidavits of:

(a) Daniel Leme sworn on 27 October 2014 and filed on 8 December 2014;

(b) Noel Kera sworn on 31 October 2014 and filed on 8 December 2014;

(c) Thomas Anis sworn on 5 February 2015 and filed on 6 February 2015;

(d) Robert Bradshaw sworn on 12 May 2016 and filed on 16 May 2016;

(e) Robert Bradshaw sworn on 10 April 2017 and filed on 11 April 2017.

4. In contesting the application, the defendant relies on the affidavits of:

(a) James Jowa sworn on 20 March 2017 and filed on 23 March 2017;

(b) Daniel Leme sworn on 6 March 2017 and filed on 23 March 2017;

(c) James Jowa sworn and filed on 10 April 2017.

BRIEF BACKGROUND

5. On 13 August 2013, the defendant attended the plaintiff’s Goroka branch and requested it to provide a quotation for a brand new Hino truck. As requested, the plaintiff provided the defendant with a quotation for K399,900.00 which the defendant accepted. The brand new truck was registered in the defendant’s name and bore registration No. IAC 263, chassis number FY1EULA-10056 and engine number E13CVT12050 (the Hino truck). On 29 August 2013, the defendant attended the plaintiff’s Goroka branch and purported to pay for the Hino truck by delivering to the plaintiff a Bank South Pacific Ltd cheque for K399,900.00 drawn in favour of the plaintiff. The plaintiff accepted the cheque, released the truck and the defendant took delivery of it.

6. On 11 September 2013, the plaintiff was advised by its banker that the cheque the defendant delivered to it for the purchase of the Hino truck was dishonoured. The plaintiff contacted the defendant about the dishonoured cheque and demanded full payment of the purchase price of the truck or to return it. Despite the plaintiff’s repeated demands for the payment for the truck or to return it, the defendant has refused to pay or return it.

7. By a letter written to the plaintiff dated 30 August 2013 and received by the plaintiff on 24 September 2013, the defendant advised that he would pay for the truck if the claim he was pursuing against the plaintiff which resulted in the commencement of proceedings by WS No. 376 of 2012 at the Goroka National Court on 24 April 2012 (the 2012 National Court proceedings) were settled.

8. In the 2012 National Court proceedings, the defendant claimed against the plaintiff as second defendant and one Jacob Konts, an employee of the plaintiff as first defendant, the sum of K118,000 as the market value of his vehicle namely, a Toyota Land Cruiser, 10 seater bearing registration number HAL 421 (the Toyota Land Cruiser) which was written off and beyond economic repair as a result of a collision between the Toyota Land Cruiser and another vehicle along the Airport Road in Goroka whilst the Toyota Land Cruiser was being road tested and driven negligently by James Konts. The plaintiff states that that claim was settled.

9. On 26 September 2013, the defendant wrote to the plaintiff advising that he had intentionally moved funds between his accounts so that his cheque would be dishonoured.

10. The plaintiff has reported the matter to the police.

SUMMARY OF PLAINTIFF’S EVIDENCE

11. The defendant was a regular customer of the plaintiff having previously purchased from it a number of vehicles over a period of time.

12. On 13 August 2013, the defendant went to the plaintiff’s Goroka Branch and requested a salesman to provide to him a quotation for the Hino truck. A quotation for the truck was given to the defendant which he accepted. The plaintiff also issued to the defendant Invoice No.G06724 dated 13 August 2014 for K399,900.00. The defendant instructed the salesperson to prepare the truck for delivery to him as he would return with the payment.

13. On 29 August 2013, the defendant went to the plaintiff’s Goroka branch and delivered a Bank South Pacific Limited cheque No.000108 dated 29 August 2013 drawn against the defendant’s account No.1001475890 in favour of the plaintiff for the sum of K399,900.00 for the purchase of the Hino truck which the plaintiff accepted. The plaintiff registered the truck in the defendant’s name, released it to the defendant and he took delivery of it.

14. On 11 September 2013, the plaintiff was advised by its banker that the cheque which the defendant had delivered for the payment of the Hino truck was dishonoured. The plaintiff advised the defendant of the dishonoured cheque and demanded that he either make full payment for the truck or return it.

15. By a letter from the defendant to the Manager of the plaintiff’s Goroka Branch dated 30 August 2013 which was received on 24 September 2013, the defendant said that he would pay for the Hino truck if his claim in connection with the Toyota Land Cruiser arising from an accident involving the Toyota Land Cruiser whilst under the care and control of the plaintiff and which gave rise to a dispute between the plaintiff and the New Tribes Mission were settled by the plaintiff.

16. By a letter dated 26 September 2013, the defendant wrote to the plaintiff advising that he intentionally moved funds between his accounts so that the cheque he had drawn in favour of the plaintiff for the payment of the Hino truck would be dishonoured.

17. On 24 April 2012, the defendant commenced the 2012 National Court proceedings claiming against the plaintiff as second defendant and a James Konts, an employee of the plaintiff as first defendant, the sum of K118,000.00 as the initial market value of the Toyota Land Cruiser and damages at a daily rate of K800.00 from 14 October 2011 to the date of judgment for loss of business.

18. On 12 June 2012, the plaintiff filed in the 2012 National Court proceedings its defence and cross-claim. The cross-claim was against a Pierce David as first cross-defendant and an employee of the New Tribes Mission and New Tribes Mission as second cross-defendant as owner of a Toyota Land Cruiser, registration No.LAZ852 (the NTB Land Cruiser). In the defence, the plaintiff essentially denied liability. It further denied that the first defendant, James Konts carelessly...