TST Pty Ltd (Provisional Liquidator Appointed) and Tin Siew Tan v Thomas John Pelis and Pelton Investments Pty Ltd (1998) N1747

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Kapi DCJ
• Judgment Date: 31 July 1998
• Citation: (1998) N1747
• Judgment Number: N1747
• Year: 1998

National Court: Kapi DCJ

Judgment Delivered: 31 July 1998

N1747

PAPUA NEW GUINEA

[In the National Court of Justice]

WS 101 of 1998

BETWEEN:

TST PTY LTD (Provisional Liquidator Appointed)

First Plaintiff

AND:

TIN SIEW TAN

Second Plaintiff

AND:

THOMAS JOHN PELIS

First Defendant

AND:

PELTON INVESTMENTS PTY LTD

Second Defendant

Waigani : Kapi DCJ

26th, 27th May, 31st July 1998

Judgements – Setting aside for fraud – Relevant principles – the new facts alleged in the statement of claim ought to have been litigated in the previous proceedings.

C. Coady for the plaintiffs

J. Aisa for the defendants

31st July 1998

The plaintiffs filed a writ of summons on 10th February 1998 seeking to set aside the orders made by Salika J on 17th March 1995 in the proceedings WS 67 of 1993. The full details of this cause of action (WS 67 of 1993) are contained in the reasons for decision in Thomas John Pelis & Pelton Investments Pty Ltd v Tin Siew Tan & TST Holdings Pty Ltd (Unreported judgement of the National Court dated 17th March 1995). Mr Tin Siew Tan and TST Holdings Pty Ltd filed an appeal against this decision (SCA 21 of 1995). This appeal was dismissed for want of prosecution (see Tin Siew Tan & TST Holdings Pty Ltd v Pelton Investments Pty Ltd & Thomas John Pelis, Unreported judgement of the Supreme Court dated 10th July 1996). Mr Tin Siew Tan and TST Holdings Pty Ltd subsequently filed a judicial review pursuant to s 155 (2) (b) of the Constitution (SCR 35 of 1996). This judicial review was dismissed by the Supreme Court (see Unreported judgement of the Supreme Court dated 27th November 1997, SC534).

In the present action the plaintiffs seek to set aside the orders made by Salika J. on the basis that they were obtained by fraud.

On 5th February 1998 the plaintiffs filed a motion seeking to stay the execution of the orders made by Salika J pending the determination of the action in this matter. This motion is contested by the defendants.

On 10th February 1998 the defendants filed a motion seeking several orders. The matter which has come before me for hearing is the order sought in paragraph 3 of the motion which seeks to dismiss the whole of this action (WS 101 of 1998) on the basis that it does not disclose a cause of action in law. The parties agreed that I should deal with this motion before dealing with the first motion.

There are two provisions under the National Court Rules which deal with dismissal of a cause of action. Under O 8 r 27 (1) (a) a defendant may make an application to strike out a statement of claim on the basis that it does not disclose a cause of action in law. Counsel for the defendants submits that the statement of claim does not disclose a cause of action and therefore the statement of claim should be struck out. On the other hand, counsel for the plaintiff submits that the statement of claim pleads the essential elements of the cause of action in law and therefore the motion to strike out should be dismissed.

Under this rule (O 8 r 27 (2) parties may call evidence on the hearing of the motion. However, both counsel based their submissions on the formal pleadings of facts and whether or not the matters pleaded give rise to a cause of action in law.

As a matter of law, where a judgement is obtained by fraud, the aggrieved party is entitled to set aside such a judgement in a new cause of action (Flower v Lloyd (1877) 6 Ch. D. 297; Jonesco v Beard [1930] AC 301). The question is whether the statement of claim pleads the material facts which gives rise to a cause of action in law. The law is clear that a statement of claim must clearly plead the material facts on which a claim of fraud is based. The statement of claim in this case pleads the material facts for an action based on fraud. Clause 8 of the statement of claim pleads the three particulars of fraud. I find that the statement of claim has correctly pleaded the cause of action.

Under O 12 r 40 the Court may dismiss a proceedings if it appears to the Court that no reasonable cause of action is disclosed. The Court may receive evidence...