N4274 

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS 1263 OF 2007

BETWEEN:

FERRO YASONA
First Plaintiff

AND:

K. K. TRADING LIMITED TRADING AS RAMU COFFEE
Second Plaintiff

AND:

KUNAMPA VISOSOMPA
Defendant

Goroka: Hartshorn, J.
2008: 15th & 16th April

Frauds and Limitations Act 1988 – s.16 - application to dismiss - Judgments - Setting aside for Fraud

Facts:

The plaintiffs commenced this proceeding to set aside a judgment which they alleged was obtained by fraud. The defendants then made an application for the plaintiffs proceeding to be dismissed on the basis that it was in breach of s.16 Frauds and Limitations Act. The defendants contend that the plaintiffs did not commence their action within six years within which the cause of action accrued. The plaintiffs contend that their cause of action commenced at the time the judgment they wish to have set aside was delivered.

Held:
Given that the writ of summons and statement of claim were filed within 6 years of the subject judgment being delivered, the proceedings are not in breach of the time limit. The defendant's application to dismiss the proceedings of the plaintiffs is refused. 

Cases cited:
Papua New Guinea Cases
Aircair v. Co-Ordinated Air Services [1988-89] PNGLR 549
TST Pty Ltd v. Thomas John Pelis (1998) N1747

Overseas cases

Flower v. Lloyd (1877) Ch D 297
Jonesco v. Beard [1930] AC 301
Wentworth v. Rogers (No. 5) (1986) 6 NSWLR 534

Counsel: 

Mr. K. Pilisa, for the Plaintiffs 
Mr. D.A. Umba, for the Defendant

16th April, 2008

1. HARTSHORN, J: The plaintiffs have commenced proceedings in which they seek to set aside a judgment of this court on the basis that it was obtained by fraud.

2. The defendant applies for the proceedings to be dismissed pursuant to s.16 Frauds and Limitations Act on the basis that the plaintiffs rely upon an agreement made in 1996 between the parties. Consequently the defendant contends, the present action by the plaintiffs is in breach of s. 16 of the Act as it was not commenced within 6 years of the cause of action accruing.

3. The plaintiffs contend however, that their cause of action accrued on the day that the judgment they wish to have set aside, was delivered.

4. The ability to set aside a judgment on the basis that it was obtained by fraud has been recognized in this jurisdiction by the Supreme Court in, Aircair v. Co-ordinated Air Services [1988-89] PNGLR 549.

5. In TST Pty Ltd v. Thomas John Pelis (1998) N1747, Kapi DCJ (as he then was), said:
"As a matter of law, where a judgment is obtained by fraud, the aggrieved party is entitled to set aside such a judgment in a new cause of action (Flower v. Lloyd (1877) Ch D 297; Jonesco v. Beard [1930] AC 301"

6. Then further His Honour states:

"The essence of an action based on fraud is very well settled in common law and the position is summarised in the judgment of the Court of Appeal of New South Wales in Wentworth v. Rogers (No. 5) (1986) 6 NSWLR 534……

7. His Honour then quotes a passage from that case that was approved in the Aircair case (supra).

8. In the statement of claim, the subject judgment is referred to and then at paragraph 12 it is pleaded that the plaintiffs claim that the judgment was obtained by fraud.

9. To my mind these proceedings are brought to prosecute a cause of action that accrued at the time that the subject judgment was delivered and not at the time that an agreement was reached in 1996 as contended by the defendant.

10. It is to be understood that I make no comment as to the adequacy or otherwise of the pleadings in the statement of claim as such a question is not before me.

11. All that is before me is whether these proceedings are in breach of s.16 Frauds and Limitations Act.

12. Given that the writ of summons and statement of claim were filed on 5 November 2007; within 6 years of the subject judgment being delivered on 21st December 2001, the proceedings are not in breach of the time limit in that section.

13. The question whether s. 16 of the Act applies to proceedings alleging fraud does not require determination by me.

14. For the above reasons, the orders sought in the notice of motion dated 24th February 2008 and filed on 26th February 2008 by the defendant are refused. The defendant is to pay to the plaintiffs their costs of and incidental to this motion.

_______________________________________________
Pilisa Lawyers: Lawyers for the Plaintiffs 
Umba Lawyers: Lawyers for the Defendant