DC213

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2636 OF 2005

BETWEEN

Kevin Taut
Complainant

V

Paul Balamus
Defendant

Port Moresby: Bidar, Pm
2005: 22nd November; 06th December

District Court – 
-	Practice and Procedure
-	Application on Notice of Motion by defendant seeking among other things, dismissal of proceedings for disclosing no reasonable cause of action - 
-	General Principles

Cases Cited
There are no cases cited in the Judgment

Counsel 
G. Haumu for applicant/Defendant
M. Nasil for respondent/Complainant

RULING

06th December 2005

BIDAR, PM: On the 31st August 2005 the Defendant through his lawyers filed a Notice of motion seeking among others following orders:

"1. The proceedings be dismissed for disclosing no reasonable cause of action.
2. Complainant be evicted forthwith from the property within twenty-four hours from the date of this order should the proceedings be dismissed.
3. Alternatively, the complainant file an understanding as to damages pay into court, the total amount of rental of K2, 400.00 that accrued as a result of his non-payment of the rent for the past fortnight which is inclusive of the month of September 2005 within 7 days from the date of this order:
4. Should the complainant fail to comply with relief sought in paragraph (4) then, the proceedings be dismissed and complainant evicted with 24 hours from date of this order.
5. Complainant pays for costs of this application.
6. Any other orders court deems fit."

To understand the orders sought it is necessary to state the brief background to these proceedings

On the 28th July 2005, complainant filed summons upon complaint against the defendant claiming damages for breach of tenancy agreement and for reimbursement of monies spent on repairs to the defendants property at section 120 allotment 61, Air Niugini Village Kanage Street, Six Mile, National Capital District.

The complainant claims for damages for breach of tenancy agreement by landlord and claim for refund of monies spent on maintenance and repairs done to the property. Complainant however does not quality the monies expended but asserts that he expended monies for maintenance and repairs to the house.

On 29th July 2005, complainant applied for and obtained interim injunctive orders against the defendant. These orders basically prevented defendant from removing or evicting the complainant and family from the premises. These orders were made returnable on 10th August 2005.

On the 10th August 2005, the matter returned to court when Mr. Haumu of Counsel for defendant submitted that he would be filing affidavits to dispute the restraining orders and he sought adjournment. Matter was adjourned to 16th August to allow counsel for defendant to file an appropriate application, which he did on 31st August 2005, and which is the subject of the present proceedings.

It appears the interim injunctive orders taken out by the complainant against the defendant are still in place although, no orders for extension were sought and granted on the 10th of August 2005.

Upon reading the affidavit of the applicant filed herein and listening to both counsel, in this application, first of all the complainant has obtained restraining orders preventing defendant (landlord) from evicting him from the said property on the basis that a valid tenancy agreement is still in place between him and the defendant and secondly, he has expended monies for maintenance and repairs to the house, as such has an equitable interest on the property in question.

The other aspect is that, he has an action as I alluded to, against the defendant, for refund of monies he expended, as a result of defendants’ failure to maintain the premises in good and tenantable condition. Complainant in his claim has not quantified the monies or expenses he incurred for maintenance and repairs.

On the other hand the applicant (defendant) says the monies complainant spent on water bill and maintenance if any, was from rental monies he should have paid the landlord and not anything over and above. Applicant (defendant) concedes that the complainant spent money on connecting water as well as paying neighbors to fetch water from their premises, which under the tenancy agreement is the responsibility of the landlord.

Having considered various matters including counsel’ submissions, I am of the view that, it may not be appropriate to summarily depose of the claim without fully hearing the merits or otherwise of the claims. In all the circumstances, I refuse the motion by defendant and the complainant’s claim should proceed to trial and determination. Motion is refused. Costs to be in the cause.

Nasil Lawyers: Complainant
Godwin Lawyers: Defendant