Home | Databases | WorldLII | Search | Feedback Papua New Guinea District Court

Pekum Trading Ltd trading as Pekum Lodge v Bora [2005] PGDC 87; DC277 (10 June 2005)

DC277

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 518 OF 2004

BETWEEN

Pekum Trading Limited
Trading As Pekum Lodge
Complainant

V

Samson Bora
Defendant

Port Moresby: Bidar, Pm
2005: 2nd & 10th June

District Court - Practice and Procedure – Application by Notice of Motion to set aside ex-parte Order entered irregularly – Principles – District Court Act, s.25.

Cases Cited
There are no cases cited.

Counsel
J. Gawi for Applicant.
Pepa Kult for Respondent.

RULING

10th June, 2005.

BIDAR PM: On the 1st June 2005, the applicant filed notice of motion seeking the following Orders:

"1. That the default judgement entered against the applicant on March 24th, 2005 be set aside as having been entered irregularly.

2. That the Warrant of Execution issued on May 20th 2005 be vacated.

3. That the defendant’s (applicant’s) Toyota Prado Reg No. BBQL195 purportedly seized on Friday 27th May 2005 and presently detained by the Police at Gordons CID Office be released forthwith to the defendant (applicant).

4. That the complainant serve the defendant with a sealed copy of the complaint and the summons.

5. That the defendant pay the costs of this application.

6. That the Court makes such other and further Orders as it seems fit or just.

To appreciate the orders sought it is necessary to state briefly the background of these proceedings.

On the 20th December 2004, the applicant filed summons upon complaint against the defendant, alleging that the defendant owed complainant K12,920.00 for 8 months accommodation charges. Complainant claims that despite service of copies of invoices and reminder notices, no payment was received.

Complainant therefore claims K10,000.00 and forgoes K2,920.00.

In support of the orders the applicant seeks, he relies on his own affidavit sworn on 31st May 2005 and filed on the 1st June 2005.

At paragraph (1) of his affidavit he deposed that he was not served with a copy of complaint and default summonses. He searched Court file and noted that Mr. Pepa Kult had sworn a Proof of Service on January 5, 2005, whereby he alleged that he served the applicant at Gordons at 2:30pm on December 30, 2004. He says that Mr. Kult told a complete lie under oath.

At paragraph (3) he deposed that he was never served a sealed copy of the default judgement entered on March 204, 2005. That he had searched the Court file on this matter and noted that the affidavit of debt does not say that he was served the copy of the said judgement.

At paragraph (4) he deposed that he owed complainant a total of K6,000.00 and that he had already paid him K3,000.00 cash so that the only amount outstanding now is the balance of K3,000.00.

The rest of his affidavit he deposed that the Police seized his Toyota Prado pursuant to a Warrant of Execution issued out of this Court.

The respondent (complainant) deposed to an affidavit in reply which he swore on 2nd June and filed on the same day. He is the Principal and Managing Director of Pekum Trading Limited trading as Pekum Lodge. On 30th December 2004 at 2:30 pm he served defendant the same copy of default summons along Varahe Street Gordons as he was coming out of Patterson Lawyers Office and subsequently endorsed proof of service and field a Port Moresby District Court Registry.

On 26th April 2005 at 11:00am along Tarport road, Tengdui Depot 4 Mile, he blocked him from going out and served him a true sealed copy of the Court Order after following him all the way from Konedobu.

Defendant owes complainant K12,920.00 for services and cash advances defendant only paid K2,000.00 on 31st January 2005.

Complainant deposed further that payment of K2,000.00 is an admission of debt he owes.

Having read the affidavit in support of the motion as well as the affidavit in reply by the complainant, I find that there is a dispute as to whether or not complainant had default summons served on the defendant and whether or not copy of default judgement was served on him as well.

The complainant filed proof of service on oath, which the defendant says is a complete lie. It is the complainant’s word against the defendant’s. Even if, I accept that defendant was served, there is a dispute as to the amount of money. Complainant says defendant owed him in excess of K12,000.00 and he only paid K2,000.00. the defendant says, that the total amount he owes complainant was K6,000.00 and that he had paid him K3,000.00 cash and the balance is now K3,000.00.

Apart from the dispute as to the amount, the matter issued is a legal issued. This issues is to do with representation of company. The requirement under the Company’s Act is that a lawyer must appear on behalf of the company.

Having heard both parties and upon reading affidavits for and against the Orders sough, I am inclined to accept the submissions made for the applicant / defendant. There are basically two issues to be resolved, one is to do with the amount of money which is disputed by defendant and the second issue is the issue of law. In all the circumstances, I grant the motion by the defendant / applicant filed on 1st June 2005 and I make Orders in the terms of Notice of Motion, save for costs, of this application, which shall be in the cause.

Rules accordingly.

J. Gawi: Applic:ant
Pepa Kult: Respondent