DC196

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE 329 OF 2005

BETWEEN

Gregory Kundi
Complainant

V

Monica Suapi
Defendant

Port Moresby: Bidar
2005: 20th & 26th April

District Court - Practice And Procedure - Application By Notice Of Motion Seeking To Set Aside Ex parte Order Of This Court - Relevant Principles.

Cases Cited
There are no cases cited.

RULING

26th April 2005.

BIDAR, PM: On 26th January 2005, Complainant filed Default Summons in this Court against the defendant, claiming a liquidated sum of K10,000.00. This claim arose on the basis of a verbal agreement entered between the complainant and the defendant. On or about November / December 2004. It was an agreement for sale of a motor vehicle. Defendant had a Nissan Vanette Mini bus Reg. No. BBA:984 which she agreed to sell to the complainant. 

In pursuance of that agreement the complainant paid K10,000.00 cash into the defendant’s bank account at Bank South Pacific Waigani Branch. 

It was a team agreement that K10,000.00 was the purchase price.

Complainant after paying K10,000.00 into the defendant’s bank account took possession of the motor vehicle and used it. The complainant used the vehicle for about a month. When the defendant repossessed the vehicle and refused to reimburse complainant the purchase price. Defendant argues that, she was going to sell the vehicle to someone else at K18,000.00, but because the complainant was a relative, she reduced the price to K15,000.00 as I alluded to, complainant paid K10,000.00 and took possession of the vehicle.

Supposing the purchase price was K15,000.00 and complainant only paid K10,000.00, the defendant should bring an action for K5,000.00. But the defendant opted to repossess the vehicle in question; and refused to repay the deposit of K10,000.00.

When complainant filed Default Summons claiming repayment of his K10,000.00 the defendant filed no notice of intention to defend or defence. She also made no appearance on 17th march 2005. Complainant then moved for default judgement to be entered in the sum of K10,000.00 which the Court granted.

Defendant filed Notice of Motion on 13th April 2005 seeking the following orders:

"1. 	The Court order made by His Worship, Mr. Cosmas Bidar, on 17th March 2005 to be set aside.

2. 	The substantive matter in DC329 of 2005 be reinstated and the applicant be given the opportunity to be properly heard and to defend herself.

3. 	Costs to be in the cause.

4. 	Such further and other orders as the Court deems fit."

Defendant deposed to an affidavit sworn on 13th April 2005, which she relies on in support of the orders she seeks.

Having read her affidavit, I find first of all that, this was a sale of motor vehicle. Whether the purchase price was K10,000.00 or K15,000.00, the fact is that complainant paid K10,000.00 to the defendant and took possession of the vehicle. In other words the property in goods has passed to the complainant and he could deal with the property in anyway he pleased. The only action available to the defendant was to sue for the balance of the purchase which was K5,000.00. As I alluded to the property in good has passed to the buyer (complainant). Defendant cannot go back on the deal unless there was fraud, which is not alleged here.

In all the circumstances, I find that defendant (applicant) has produced no evidence which amounts to defence on merits, and has shown no reasons why judgement was allowed to be entered by default. 

I therefore refuse motion to set aside judgement entered on 17th March 2005. I dismiss the motion and in the exercise of Court’s discretion. I award no costs. 

Rules accordingly.

In Person: Complainant
In Person: Defendant