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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO. 08 OF 1997ETWEEN
PLAINTIFF
AND
PETER KEWA
DEFENDANT/APPLICANT
Goroka
Sawong J
10 July 1998
24 July 1998
PRACTICE & PROCEDURE - Application to set aside default judgement - Principles Applicable - Defence on merits to be particularised - Application must be promptly and a reasonable explanation as to why default judgement was allowed to be entered.
Cases Cited
Green v Green [1976] PNGLR
Baker v Government of PNG & Others [1976] PNGLR 340
Counsel
C. Nidue, for the Applicant (Defendant)
K. Peri, for the Respondent (Plaintiff)
24 July 1998
SAWONG J: This is alication under O.er O. 12 r. 35 of the National Court Rules to set aside a default judgement entered against the defendant for failing to file his Notice of Intention to Defend and Defence withe times allowed for by they the said Rules.
The action was commenced by Writ of Summons issued on 8 January 1997. The cwas for a liquidated ated demand being moneys lent to the Applicant in the sum of K53,419.04. Pulars of the amounts ae d ae dates when those were given to theicant aret are set out in the writ.
The sahe said Writ was served on the defendant/aant on 13 February 1997. An affidaviservice was was was filed on 27 February 1997.
On 10th March 1997, the applicants previous lawyer sent by mail the Notice of Intention to Defend to the Assistant Registrar of the National Court in Goroka, for filin60; This was received and filed on 21 March 1997.
On 12 March 1997 the said lawyer syer sent by mail the applicants defence to the said Assistant Registrar for filing. This was filed March 1997 1997.
On 21st March 1997, a default judgement was entered against the defendant for failing to file his Notice of Intention to Defend and or his defence within the time requby the Rules. Accordicording tosaid Writ Writ, and the Rules tplicant wast was required to file his notice of Intention to Defend within 30 days from the date of services of the said Writ. en had a further 14 days fays from the expiration of the 30period to file his defence.ence. Accgly in this case he hade had 30 days from 13 February 1997 to file his Notice of Intention fend. This mean meant that he had thel the 13 March 1997 to file the said notice of intention to defend. He then had a further 14 fays from 13 March 1997 to file his defence.
On 13 March 1997, a search was conducted at the Goroka Court Registry and itdiscovered that the defendant had not filed his notice of intention to defend. The aphe applicafor entry&ntry default judgemen made on 2 on 21 March 1997, and it was granted to them.
In applying for entry of default judgement, the plaintiff r on OR 25 (a) of the Rules which provides that:
“25. Defaultfault
A defendant shall be in default for the purposes of this Division:
(a) tereorie natiig process bess bears a note under R. 9,the tor him to comply has expired but he hase has not not givengiven the notice ----”
O. 4 R. 9 is in the following terms:Rـ Noticeotice of e of Intentntention to Defend
(1) ;ere there iere is a de a defendant, an origig pro(othen a originating summons under rule 26) shall bear a note that the defendefendant dant is liis liable to suffer judgement or an order st hiess tescribecribed ford form of m of notice of his intention to defend is received in the Registry.
(2) e role under subrule (1le (1) shall specify the time limited for the giving of the notice.”
In this case, the Writ ied w 4. R1) an. It stated the time limit at 30 days for the date of s of servicervice of e of Writ Writ for the applicant to file his Notice of Intention to Defend.
As I have said earlier, the applicant clearly did not file his Notice of Intention to defend within the time limit set out in the Writ. Having failed to do so, lae plaintiff was entitled to have judgement entered against him.
I have considered this matter in some detail, because in cases of this nature the first question to be considered is wh or not the judgement was rwas regularly entered. If it was irrrly entered tred than such a judgement would set aside as a matter of course. If however the junt has beas been regularly entered then other considerations apply and I will refer to thosrtly.
In the presentesent case, I am satisfied that the judgement was regularly entered. Constly, I now turn to cono consider the basis of the present application.
The principles relating to setting aside a regularly entered judgement are well se in this jurisdiction. There arentially three reee reee relevant and applicable principles. Thst and principal matter tter that must be shown by the applicant is that he has a defence on the merits. In other words, there be a be an affidavit deposeby the applicant stating facts showing a defence on the mere merits.
The second is that there be reasonablonable explanaas to why default judgement was allowed to go by default.
Finally the application must be made promptly and within a rease time. See Green v Green [1976] PNGLR, Baker v Gr v Government of PNG & Others [1976] PNGLR 340.
I deal with the last two principles first as they relate to the facts and submissions that were made. The evidence is quite clear. 13 March 1997 the defendafendant had clearly not filed its notf intention to defe defend. It t clear as tn he and gand gave instructions to his lawyers after he was served with the Writ. There isre is no explanatianation as to why default judt waswed to be enteredtered. The evidencehat his form form former lawyer sent the said notice by mail. Wat occurred is noar, beca because the said lawyerawyers could easily have sent the said notice by facsimile transmission to the Assistant Registrar.
I amsfied that this application was made promptly, given the unhe undisputed evidence that he was served with the order of this court only in April 1998.
The remaining issue to be decided is whether the applicant has shown any defence on the merits. Thst thing to note is that that the applicant has not sworn any affidavit stating facts showing a defence on its merits. Thet defwhich was filed oued out of time and which relied is on in this application is a very very basic and very general denial. old aion made in the so caso called defence cannot be regarded as sufficient to meet the rehe requirement that the affidavit must stacts showing a defence on the merits.
For these reasons, the application is dismissedissed with costs.
Lawyers for the Plaintiff: Warner Shand
Lawyers for the Defendant: Matthew Porani Tamutai
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URL: http://www.paclii.org/pg/cases/PGNC/1998/66.html