N5299

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 84 OF 2011

BETWEEN:

BALLA BUILDERS CONTRACTORS LTD
Plaintiff/Applicant

AND:

THE PROVINCIAL ADMINISTRATOR
DEPARTMENT OF WESTERN HIGHLANDS
(MALCOLM CULLIGAN)
First Defendant/Respondent

AND:

WESTERN HIGHLANDS PROVINCIAL GOVERNMENT
Second Defendant/Respondent

Mount Hagen: Poole, J
2013: 15 May & 21 May

PRACTICE AND ROCEDURE– Order 4 rules(2)&(3) National Court Rules – Absence of evidence of dispute on facts – Motion in same terms as summons – Abuse of process – Application refused. 

Cases cited

John Morris & Others v Attorney General & Others (2000) N1951
Duma v Eric Meier & Others (2007) SC898
Gabriel Yer v Peter Yama (2009) SC996

Counsel

Mr. P. Kopunye, for Plaintiff
Ms. M. Tamutai, for Defendant

21st May, 2013

1. POOLE, J: Introduction: On the 1st March 2011, the Plaintiff instituted an action seeking payment of money allegedly due to it for hire of a motor vehicle to the former Provincial Administrator of the Western Highlands. 

2. With a degree of novelty, the Action was not pleaded as a Writ and Statement of Claim, either as simple money count or a debt arising from a breach of contract. Instead, the Plaintiff filed an Originating Summons, claiming specific performance of a contract, in the following terms:

"(1) That pursuant to Order 12 Rule 1, being the General Ancillary Powers of Court) and (the General Powers of Court) under Order 14 Rules 1 and 2 of the National Court Rules and under Section 155 of the Constitution, the Plaintiff be given payment priority out of the Second Defendant's Account conducted under Item 321 Vote ………. 

(2) The First Defendant/Respondent pays the already committed and agreed sum for hire of motor vehicle to the Plaintiff/Applicant under Vote ……. Item 321 or other contingencies fund, the sum of K118,580.00, out of the Account of the Second Defendant/Respondent.

(3) The First Defendant/Respondent pays to the Plaintiff/Applicant the following sums under Vote …. Item 321 or other contingencies fund, out of the account of the Second Defendant/Respondent:-

(i) The additional sum of K145,530 being for cost of hire of motor vehicle to Michael Wandil for period 1st October 2008 to 20th January 2009 whilst he was suspended from official duties, but with full entitlements which included the use of the rented car; and 
 
(ii) The further sum of K4,855.75 for damage done to motor vehicle whilst on hire to Michael Wandil."

(4) The First Defendant/Respondent calculates and pay interest as of right, on the said total sum of K264,110.00 from the 22nd of June 2009 to the date of payment, out of the Account of the Second Defendant/Respondent, calculated at rate of 8% per day calculated at K57.89 per day.
 
3. A Notice of Motion has also been filed these terms:

(1) The Plaintiff be given payment priority out of the Second Defe3ndant's Account conducted under Item 321 Vote or out of such other contingencies fund, and be paid the sums claimed in this proceedings.

(2) The First Defendant/Respondent pays the already committed and agreed sum, for hire of motor vehicle to the Plaintiff/Applicant under Vote …….. Item 321 or other contingencies fund, the sum of K118,580.00, out of the Account of the Second Defendant/Respondent.

(3) The First Defendant/Respondent pay to the Plaintiff/Applicant the following sums under Vote….. Item 321 or other contingencies fund, out of the account of the Second Defendant/Respondent:-

(i) The additional sum of K145,530 being for cost of hire of motor vehicle to Michael Wandil for period 1st October 2088 to 20th January 2009 whilst he was suspended from official duties, but with full entitlements which included the use of the rented car; and 

(ii) The further sum of K4,855.75 for damages done to motor vehicle whilst on hire to Michael Wandil.

(4) The First Defendant/Respondent calculates and pay interest as of right, on the said total sum of K264,110.00 from the 22nd of June 2009 to the date of payment, out of the Account of the Second Defendant/Respondent, calculated at rate of 8% per day calculated at K57.89 per day.

4. This Summons is support by an affidavit filed by the Plaintiff's manager, to which is annexed 6 documents. This constitutes details of the Claim.

5. Despite all documents having been properly served on the Defendant, it took 2 years for them to even enter an Appearance to this action and the only documents filed have been a Notice of Appearance and Notice of Intention to Defend.

6. At the hearing of the Motion, the Defendants raised objection to the Plaintiff's mode of proceeding, arguing that a Writ of Summons and Statement of Claim should have been used. It is notable that the Defendants did little to contest the substantive merits of the claim by the Plaintiff for payment of money due for goods and services provided to the Defendant by the Plaintiff.

7. There are a number of authorities on the proper mode of commencing an action and the Court has frequently examined the operation of Order 4 rules (2) and (3) of the National Court Rules.

8. In this case there is a complete absence of material from the Defendants to indicate that there is a likelihood of a substantial dispute of facts which would, because of Order 4 rule 3, (2)(b), require use of a Writ and Statement of Claim.

9. I adopt the statement of the Supreme Court in Gabriel Yer v Peter Yama (SC 996), that although there are authorities that indicate that a Writ of Summons may often be the preferred mode of commencement,----- it is not mandatory. The Plaintiff exercised the option open to it under Order 4 rule (3) of the National Court Rules, and is not, on this basis alone, prevented from pursuing its claim.

10. The Defendants, however, raised a further technical objection to the Plaintiff's pleading. The Defendants object to the pleading as an abuse of process because the operative paragraphs of the Motion are in identical terms to the Summons.

11. A Motion, of course, is an interlocutory action and the Plaintiff is seeking substantive Orders (in terms of the Summons) in an interlocutory Application (by Motion). This Court (see, eg John Morris and Others v Attorney General and Others (N1951)) and the Supreme Court (see, for example, Duma v Eric Meier and Others (SC898)) have repeatedly ruled that this course of action is an abuse of the Court's process and cannot be permitted.

12. For this reasons I must uphold the Defendants' objection and dismiss the Motion.

13. It would be wrong not to make comment, in the hope that this may be a guide to the parties (and others who may find themselves in a similar situation.)

14. It is common ground that the Defendants hired a motor vehicle from the Plaintiff and have not paid all that was agreed to be paid.

15. It a debt is claimed it should be paid, denied or compromised – for example part payment or payment on terms.

16. To spend many months in negotiations and discussions involving unfulfilled promises is the worst of courses to take. This just means that the creditor is damaged by being denied use of money rightfully his and the debtor further burden by having to pay a substantial additional amount by way of interest.

Creditors should not spend long times in negotiations, but should sue on a debt without delay.

Debtors should not try to fob off claims with empty promises but should pay, deny or compromise. This is in their own interest.

The Orders of the Court are:

1. The Plaintiff's Motion is dismissed as an abuse of process;

2. The Plaintiffs costs of and incidental to this Motion are to be paid by the Defendant, such costs to be taxed if not agreed.

3. Time is abridged.

____________________________________________
Kopunye Lawyers: Lawyers for the Defendant
Tamutai Lawyers: Lawyers for the Plaintiff