Tuna Gomia v Lucas Doa and Others

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Ellis J
• Judgment Date: 30 July 2026
• Neutral Citation: N11782
• Docket Number: WS 152 of 2025
• Date: 30 July 2026
• Counsel: M Kapo, for the plaintiff,I Jacob, for the second and third defendant,Counsel,First Defendant – No appearance

N11782

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 152 of 2025

Between

Tuna Gomia

Plaintiff

v.

Lucas Doa

First Defendant

and

Joseph Wandi

Second Defendant

and

Paguri Limited

Third Defendant

WABAG: Ellis J

27, 30 July 2026

NOTICE OF MOTION — Leave to cross-examine required by paragraph 12(5) within Order 4, rule 49 of the National Court Rules — leave refused as such cross-examination would overlap cross-examination at the hearing — motion dismissed and hearing conducted (prior notice having been given to the parties)

FRAUD — Claim that third defendant did not exercise due diligence before approving loan — claim that third defendant conspired with first defendant to obtain loan for plaintiff — fraud alleged but not particularised

CIVIL PROCEEDINGS — Onus on plaintiff to prove liability, damages and causation — case on liability not particularised and not put to opposing witness, being denials of the principles of natural justice, and defendants' evidence not challenged — damages particularised but no supporting evidence — causation not proved since loan money received and used by plaintiff — any loss suffered by the plaintiff caused by the plaintiff

INDEMNITY COSTS — Grounds for awarding indemnity costs considered — Multiple reasons favouring such an order in this case

Cases cited

Awoda v The State [1984] PNGLR 165

Browne v Dunn (1893) 6 R 67 (HL)

R v Birks [1990] NSWLR 677

Salomon v A Salomon & Co Ltd [1986] UKHL 1; [1897] AC 22

Counsel

M Kapo, for the plaintiff

First Defendant – No appearance

I Jacob, for the second and third defendant

JUDGEMENT

30^th March 2026

1. Ellis, J: These are the reasons for the orders that were made following the hearing of these proceedings on 27 March 2026.

Procedural history

2. A writ of summons, filed on 8 May 2025, named as defendants: Lucas Doa (the first defendant) and “Paguri Finance Ltd” (the second defendant). In its defence, filed on 13 June 2025, the second defendant denied the existence of such a company.

3. After the second defendant filed a notice of motion and affidavit in support on 3 October 2025, which sought summary dismissal, a replacement notice of motion and affidavit in support were filed on 30 January 2026, removing a request for these proceedings to be transferred to Waigani.

4. At a directions hearing on 27 February 2026, leave was granted for the plaintiff to serve an amended writ of summons, to change the name of the second defendant, by 13 March 2026. The motion was listed for hearing on 27 March 2026.

5. As it became apparent that the parties wished to cross-examine each other's witnesses, on 19 March 2026 orders were made to advise the parties that “the hearing on 27 March 2026 will include a consideration of any Notice of Motion and, if necessary, the final hearing”, thereby avoiding the prospect of multiple hearings.

6. The day before the hearing, the plaintiff's lawyer submitted to the registry an amended writ of summons which not only sought to change the name “Paguri Finance Ltd” to “Paguri Limited” but also added Joseph Wandi as a defendant.

7. The question of whether the plaintiff should be permitted to file that amended writ of summons was considered at the outset of the hearing. Leave was granted for the plaintiff to rely on that amended writ of summons since (1) Mr Wandi was present in court and was legally represented, and (2) the case against him was not put any higher than in paragraph 2 of the amended writ of summons where it was alleged that he was the Managing Director of Paguri Limited (the third defendant).

8. When the Court commenced to hear the notice of motion, it became clear that each party wished to cross-examine a witness for the other party. In 2005 the National Court Rules were amended by the addition of rules at Order 4, rule 49. Paragraph 12(5) of those rules provides that: “With the exception of contempt hearings, there shall be no cross-examination of deponents of affidavits, except with leave of the Court.”

9. Plainly, if a defendant is seeking summary dismissal of proceedings on the basis that the plaintiff has no valid case, and the plaintiff is contending that there is a valid case, any cross-examination during the hearing of a notice of motion is likely to overlap the cross-examination that would be conducted during the hearing.

10. To hear a notice of motion that requires a ruling on whether evidence should be accepted or rejected or a finding of which party's evidence is to be preferred, may require any subsequent hearing to be conducted by another judge. In the context of a provincial location of the National Court which has only one resident judge, that is undesirable and can be avoided by availing of the discretion conferred by paragraph 12(5) within Order 4, rule 49 by refusing to permit cross-examination.

11. For that reason, the second defendant's notice of motion was dismissed, and the Court proceeded to hear the proceedings. That enabled all issues which the parties wished to raise to be considered and saved time and costs for both parties. However, as there was no evidence that the first defendant had been served with the writ of summons, it was made clear that the hearing was confined to the plaintiff's claims against the second and third defendants. Accordingly, in these reasons, it is convenient to use the term defendants to refer to the second and third defendants.

12. For the avoidance of doubt, it needs to be recorded that, due to the similarity of the plaintiff's claims, these proceedings were heard jointly with the proceedings, commenced by the same plaintiff against the first defendant and “Jmali Finance” (WS 162 of 2025), which raised similar issues in relation to a separate loan.

Plaintiff's evidence

13. The affidavit of the plaintiff, filed on 27 February 2026, was admitted (without objection) as Exhibit A.

14. That affidavit asserted that the first defendant offered to assist the plaintiff to obtain a loan but instead used the plaintiff's personal loan to apply to the third defendant for a loan which was said to have resulted in K10,000 being credited to the plaintiff's bank account on 27 February 2024. A supporting bank statement page was provided (Annexure B). This affidavit went on to say that the first defendant requested the plaintiff to transfer money to his account, which was said to have started from 2 March 2024. However, the bank statement pages provided in support (Annexure C) highlighted amounts that were debited on 27 February 2024.

15. Reference was made to documents relating to that loan of K10,000 and copies of the documents referred to were annexed. It was alleged by the plaintiff that “the First Defendant has lured and cheated on me and walked away with the money”.

16. In the plaintiff's affidavit, there were only references to the second defendant (in paragraphs 20 and 21), each of which alleged that the third defendant is owned by the second defendant, thereby alleging the second defendant owns shares in the third defendant.

17. The plaintiff's allegations against the third defendant were set out in paragraphs 22 and 23. In those paragraphs it was alleged that the third defendant “approved and facilitated the loan presented by a Third Party (First Defendant) without further investigation and delay” and that there was an “illegal loan application”.

18. It is noteworthy that the plaintiff only claimed that he “obtained another loan” and did not provide any evidence in support of the particulars of loss and damage that were set out in paragraphs 17 to 20 of the writ of summons which were identically repeated in paragraphs 18 to 22 of the amended writ of summons.

19. When cross-examined, the plaintiff agreed, by reference to Annexure B to his affidavit, that he received K10,000 on 27 February 2024 and that on the same day he made two cash withdrawals, each of K1,000, from an ATM (automatic teller machine) in Wabag and also transferred K3,500 to a mobile phone account.

20. In re-examination, the plaintiff said that K3,500 was paid to the first defendant, claiming that the first defendant told him: “that is the extra money that I have to send to him”.

Defendants' evidence

21. The second defendant provided three affidavits, filed on 3 October 2025, 30 January 2026 and 10 March 2026 which were admitted (without objection) as Exhibits 1, 2 and 3 respectively.

22. Exhibit 1 revealed that the second defendant is the managing director of the third defendant, which was an incorporated company. It was said that the plaintiff obtained a loan from the third defendant that was said to have been “vetted, approved and issued to the Plaintiff when he met all the loan requirements”.

23. Exhibit 2 set out what were said to be the standard requirements for the processing and approval of loan applications, indicated what information was provided, and claimed that: “The loan application was properly vetted, assessed and approved in accordance with [the third defendant's] internal credit policies and standard lending procedures.” Paragraph 13 of this affidavit said:

At no time did [the third defendant]:

a. Collude with the First Defendant;

b. Conspire with the First Defendant;

c. Compromise with the First Defendant; or

d. Participate in any fraudulent scheme against the Plaintiff.

24. Exhibit 3 indicated that the third defendant and Jmali Finance are separate business entities and that the plaintiff's loan application was managed by Sessie Mek who has since left the third defendant. It went on to express a belief that the plaintiff and first defendant “were well acquainted with each other”, that it appeared that some of the loan money was transferred by the plaintiff to the first defendant, and that other portions of the loan money were used by the plaintiff. It was also said that the plaintiff's loan application was lodged and processed in the same manner as other loan applications. It was noted that loan repayment deductions had ceased after the principal amount was recouped.

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