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Temai v Kavie [2012] PGNC 196; N4760 (10 June 2012)

N4760

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.560 OF 2011

BETWEEN

ALOIS TEMAI
DIRECTOR DUA COFFEE BUYING SERVICES
First Plaintiff

AND

DUA COFFEE BUYING SERVICES

Second Plaintiff

v

ALEX KAVIE
AS THE MANAGING DIRECTOR OF YONDU
COFFEE PRODUCERS LIMITED

First Defendant

AND

YONDU COFFEE PRODUCERS LIMITED

Second Defendant

Goroka: Ipang AJ
2012: June 08

CIVIL LAW –Summary Judgment Order 12 Rule 38(1)(b) of the National Court Rules –Summary Judgment will not be granted when there is serious issue of fact or law arising. If there is no dispute of fact and the law is clear to the point and the Court is satisfied that is really unarguable, then Summary Judgment will be entered – Application for Summary Judgment based on mutual agreement between Plaintiffs and Defendants on terms of debt repayment including schedule of payments.

Cases cited

Kumul Builders Pty ltd –v- Post Telecommunication Corporation (WS. No. 438 of 1991) N1000
Tsang –v- Credit Corporation [1993] PNGLR 112

Counsel

Mr. D. A Umba, for the Plaintiffs

No appearance for Defendants

DECISION
08 June, 2012

1. IPANG AJ: The Plaintiffs move their motion filed on the 25 November, 2011 seeking Summary Judgment to be entered against the Defendants in the sum of K46, 500.40 inclusive of interests and costs pursuant to Order 12 Rule 38 (1) (b) of the National Court Rules.
   
2. The Order 12 Rule 38 of the National Court Rules states;
   

"38 Summary Judgment

(1) Where, on application by the Plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff'

• (a) There is evidence of facts on which the claim or part is based; and
  
• (b) There is evidence given by Plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed, the Court may, by order, direct that entry of such judgment for the plaintiff on that claim or part, as the nature of the case requires."
  

3. The purpose of Order 12 Rule 38 is to enable a plaintiff to obtain judgment without trial, if the plaintiff can prove his claim clearly and if the defendant is unable to set up a bona fide defence, or raise an issue against the claim which ought to be tried. (See Kumul Builders Pty Ltd v Post Telecommunication Corporation (WS No. 438 of 1991) N1000).
   
4. So, essentially the Court will direct an entry of judgment, summarily, where there is sufficient, clear evidence before the Court, of the facts on which the claim is made to enable it to conclude that there is no triable issue of fact and no arguable defence in law. On the contrary, a summary judgment will not be granted when there is any serious issue of fact or law arising.
   
5. The principles relating to the application of the rule in summary judgment (Order 12 Rule 38 of the National Court Rules) are well settled in this jurisdiction. In Tsang v Credit Corporation [1993] PNGLR 112 at 117 the Court said; "there are two elements involved in this rule:
   
   • (a) evidence of facts proving essential elements of the claim; and,
     
   • (b) that the plaintiff or some responsible person give evidence that in his belief there is no defence.
     
6. Plaintiffs and the Defendants entered into a written agreement on the 10th of August, 2010. In this agreement, Defendants agreed to pay the Plaintiffs on monthly installment payments the sum of K1, 500.00 to off-set their debt to the plaintiffs totaling K56, 000.00. Defendants made some payments however failed to keep regular monthly installment payments of K1, 500.00 to the plaintiffs thereby breaching the said agreement.
   
7. In paragraph 4 of the plaintiff's amended Statement of Claim, the plaintiffs state that the Defendants responded by entering in to an Agreement with the Plaintiffs. Mr. Umba of Counsel for the Plaintiffs said Mr. B. Koningi was previously counsel for the Defendants had discontinued representing Defendants after he became aware of this agreement.
   
8. The purported agreement entered in to by the Plaintiffs and the Defendants is as follows:
   

9. The schedule of payment accompanying the Agreement is as follows;
   

10. The schedule of payment revealed that five (5) installment payments were made for the months of September, October, November and December of 2010 and for January 2011. This would total up to K9, 000.00.
    
11. From their Defence filed, the Defendants say all coffee delivered by the Plaintiff to the end of Coffee season in year 2006 were paid and settled by the Defendants. This argument does not have merit in my view. Common sense and logic will tell that if the Defendants had settled their debts, how could they possibly go ahead and acknowledge their outstanding debts by drawing up the agreement with the plaintiffs and make five (5) installment payments.
    
12. The assertion that the second Defendant was in liquidation commencing October, 2006 and that all creditors were dealt with court appointed liquidator is just an evasive attempt by the Defendants. The issue of liquidation and liquidator did not surface at the time when the agreement was signed between the Plaintiffs and the Defendants. Furthermore, Defendants had gone ahead and made installment payments, thus admitting to liability.
    
13. I am satisfied the plaintiffs have clearly proven their claim and the Defendants have not set up a bona fide defence against the plaintiff's claim. Accordingly, I enter summary judgment in the sum of K46, 500.00 plus interests at 8% and costs.

____________________________________

D. A. Umba Lawyers: Lawyer for the Plaintiffs
No appearance for the Defendants