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Chapau v The State [1999] PGNC 95; N1933 (1 November 1999)

Unreported National Court Decisions

N1933

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 924 OF 1998
BETWEEN: MOLIN CHAPAU
PLAINTIFF
AND: THE STATE
DEFENDANT

Lae

Injia J
24 September 1999
1 November 1999

CIVIL - Practice and Procedure - Liquidated claim and unliquidated claim - Meaning of - National Court Order 12 rule 27.

Cases Cited

Dempsy v. Project Pacific Pty. Ltd. [1985] PNGLR 93.

Abbey Panel’s Sheet Metal Co. Ltd v. Barson Products [1940] 1 K.B. 493.

Counsel

M. Kouru for the Applicant/Defendant

S. Tedor for the Respondent/Plaintiff

1 November 1999

INJIA J: The defendant applies to set aside a default judgment entered against it in favour of the plaintiff on 3 March 1999, for damages in the sum of K25,547.84 plus costs pursuant to Order 12 Rule 38(2) of the National Court Rules. The defendant concedes default judgment on liability but contests the award of specific damages for what it says is an unliquidated claim, and asks this Court to set aside the award of damages and enter judgment for damages to be assessed. The plaintiff contends the claim was a liquidated claim for which the specific amount pleaded in the Writ was awarded by the Court and it should not be disturbed by this Court. The main issue before me is whether the plaintiff’s claim is a liquidated claim or an unliquidated claim.

The statement of claim endorsed on the Writ shows that the plaintiff is a soldier employed by the State and based at Igam Barracks in Lae. He says between 15 February 1993 to 21 June 1996, the Department of Defence failed to pay his wages due under two promotions, namely from Private to Lance Corporal and from Lance Corporal to Corporal. In paragraph 3 of the statement of claim, he pleads particulars of those periods and amounts. He claim the total of K24,666.60. In the Writ, there is an endorsement which requires the defendant to verify his defence.

A liquidated claim is not defined in the National Court Rules. Order 12 Rule 27, provides that on a liquidated claim, a plaintiff is entitled to obtain judgment by default “for a sum not exceeding the sum claimed in the statement of claim on that demand and for costs”. Order 12 Rule 28 says on an unliquidated claim, the plaintiff is entitled to judgment for damages to be assessed. A claim is liquidated when the amount of damages claimed in the Writ can be easily ascertained or capable of being ascertained by simple arithmetical calculation, there is no exercise of assessment on judgment involved: Dempsy v. Project Pacific Pty. Ltd. [1985] PNGLR 93. A claim in the nature of unliquidated damages is not converted into a claim for liquidated damages by the plaintiff naming a specific amount calculated with reference to specific scales: Abbey Panel’s Sheet Metal Co. Ltd v. Barson Products [1948] 1K.B. 493.

In the present case, the plaintiff’s calculation of damages in clause 1 and 2 of the Statement of Claim read:

“Particulars of Claim

1. ټ First Promotion - Pn - Private to Lance Corporal

(a) ҈ tifecfroe from 15th 15th February 1993 to 25th March 1996.

(b) Total number of days = 1,134 days.

(c) ټ&##16plicable to Lano Lance Corporal = 18.4107.41070 per0 per day. day. Thus 1,134 days x 18.41070 = K20,877.73.

2. 𧝼omotionotion - Lan- Lance Core Corporalporal to Corporal.

(a) &160; Efvectiom 26th March 1996 1996 to 21st June 1996.(b)& Totaler mb dayf = 8s = 87 = 87 day7 days.

(c) Rate applicable to Corpor20.62er daus 87 days x 20.62711 = K1,974p>

Since paid = K1,407.99

Balance outstanding = K21= K21,264.,264.30..”8221;

After listening to Mr Kouru&;s suions are based on hisn his own own affidaffidavit and upon reading the above calculations on its face value, I agree with Mr Kouru that the plaintiff could be claiming for and obtained judgment for a sum which is far in excess of what he is entitled to. It appears he is claiming for the full amount of his pay on his promoted ranks, as a Lance Corporal and Corporal respectively and not the difference in pay between his current pay as a Private and Lance Corporal and between his current pay as a Lance Corporal and Corporal, which he is entitled to receive, which he missed out. Particulars of his pay as a Private and Lance Corporal are not pleaded in the statement of claim. These facts should be established by evidence. In the circumstance, I am not satisfied that the claim meets the test of a liquidated claim laid down in Dempsy’s case. I set aside the award of K25,547.84 in damages and refer the matter back to the National Court for assessment of damages only. Having arrived at this conclusion, it is unnecessary to consider other peripheral procedural issues raised by counsels during submissions. Each party shall bear their own costs of this application.

Lawyer for the Defendant: Solicitor General

Lawyer for the Plaintiff: Silas Tedor & Associates