N5920

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1156 OF 2012

BETWEEN:

MARCIAL RODRIGUEZ AND MAGDALENE RODRIGUEZ
Plaintiff/Respondent

AND:

ANDREW PAKILA t/as PALMALMAL SERVICE STATION
Defendant/Applicant

Kokopo: Oli, AJ
2014: 5th &30th June
2015: 4th March

CIVIL JURISDICTION- PRACTICE & PROCEDURE – Application by defendant to set aside the default judgment – defendant neither filed notice of intention to defend nor filed particulars of defence – motion filed to seek default judgment for liquidated sum for non-payment of lease rental – seeking orders for repossession of property under lease agreement – Default judgment entered.

CIVIL JURISDICTION - PRACTICE & PROCEDURE – Application to set aside the default judgment – considered as filed within reasonable time – considered application lack meritorious defence – defendant blame lawyer for not filing intention to defend within 30 days – defendant failed to provide reasonable explanation why judgment by default was entered - Application refused.
 
Cases Cited:
Giru v Muta (2005) N2877
Green & Co Pty Ltd (Receiver Appointed) v Roger Britain Green [1976] PNGLR 73
Inchcape Shipping Services (PNG) Ltd v TG Holdings Ltd (2010) N4268
Kaluni v Warole (2000) N 2114
Kitipa v Auali & Ors (1998) N1773
Mapmakers v BHP [1987] PNGLR 78
Paraka & Ors v Kawa & The State (2000) N 1987

Counsel:

Mr David Lidgett, for the Plaintiff
Mr Wesley Donald, for the Defendant

RULING

4th March, 2015

1.	OLI, AJ: The Court entered Default Judgment in favour of the Plaintiff on 14th March 2014 against the Defendant. The Applicant/Defendant filed an application on 14th May 2014 under Order 12 Rules 1 and 35 of the National Court Rules to set aside the Default Judgment. In the application the Applicant/Defendant seeks to set aside the Default Judgment ordered by the Court on 14th March 2014. The application is supported by the affidavit of principal applicant/defendant Andrew Pakila sworn and filed on the 14th May 2014 and, further affidavit by Andrew Pakila sworn and filed on 20th May 2014 respectively.

2.	The Default Judgment was entered based on the Motion filed by the Plaintiff that there was neither a notice of intention to defend filed nor particulars of defence filed. Hence, Plaintiff was entitled to default judgment. 

The brief glance at the Statement of Claim by Plaintiff is as follows:- 

3.	The Plaintiffs are long-time residents of Papua New Guinea and since October 2011 have been the registered proprietors of that parcel of State Lease land at Takubar, Kokopo, East New Britain Province described as Lot 9 Section 75 Kokopo and being all of the land contained and described in State Lease Volume 10 Folio 198 ("the Plaintiffs' Land") though they had completed the purchase of the premises with effect on 1st February 2010.

4. The Defendant is a citizen of Papua New Guinea who trades as "Palmalmal Service Station", for which he registered a business name under the Business Names Act, its certificate number 6-74620 but the registration expired on 13 October 2011 and has for some time been the tenant of the Plaintiff's Land.

5. The Defendant since October 2011 has refused to pay the Plaintiffs the monthly rental levied against the Defendant by the Plaintiffs in consideration for the Plaintiffs' granting the Defendant the right to a tenancy of the Plaintiffs' Land.

6. The Defendant first commenced as a tenant of the premises when the premises were under the registered proprietorship of Mabuhay Enterprises Limited, the Plaintiffs' immediate predecessor in title, which latter company held the premises as long term lessees from the Roman Catholic Archdiocese of Rabaul which had created after the 1994 Rabaul volcanic eruptions what is now commonly known as the "Takubar Industrial Sub-division".

7. The Defendant with the consent of Mabuhay Enterprises Limited and the Plaintiffs has made improvements to the Plaintiffs' Land.

8. The Plaintiffs have since 1st February 2012 invoiced the Defendant on a monthly basis.

9. On 4 September 2012, the Plaintiffs' caused their lawyers to write to the Defendant pointing out the outstanding accrued unpaid rental then stood at K38, 700.00 and as a result the tenancy between them was at an end. The arrangement was thereby terminated. The Plaintiffs invited the Defendant to nominate how he wished to deal with the matter of the improvements to the premises. Would the Defendant remove them or would the Defendant seek compensation by negotiation with the Plaintiffs? In any event the Plaintiffs advised they wanted vacant possession of the premises within 30 days, namely by 04 October 2012.

10. When by 24 September 2012, the Defendant had not responded to the earlier letter of 4 September 2012, the Plaintiffs caused a further letter to be written by the Plaintiffs' lawyers to the Defendant re-iterating its position, seeking vacant possession by 4 October 2012.

11. The Plaintiffs have received no response to either of those letters, true copies of which shall be produced at the trial of this matter and the outstanding rental to 30 September 2012 of K38, 700.00 remains unpaid.

12. The Plaintiffs claim:

(a)	An order against the Defendant to forthwith vacate and deliver up vacant possession of lot 9 section 75 Kokopo, being all the land in State Lease Volume 10 Folio 198 to the Plaintiffs.

(b)	An order against the Defendant in favour of the Plaintiffs for all accrued rental up to the date of the Defendant actually vacating the premises, which sum as at 30 September 2012 stood at K38,700.00

(c)	Statutory Interest.

(d)	Costs.

13. The Plaintiff filed a motion to seek a Judgment by default and did secure the default judgment on 14th March 2014 and served it on the defendant on 18th April 2014, which triggered the application now before the court to set aside the default judgment.
 
14. The defendant filed the Motion to set aside the default judgment and claim that:-
 
(a)	The Defendant/Applicant confirms receiving the Writ of Summons in November 2012.

(b)	The Writ of Summons with a Statement of Claim was then given to Mr. Paul Yange of Kamen Lawyers, with instructions to defend the Defendant/Applicant in the proceedings.

(c)	As it later turned out no Notice of Intention to defend with particularised defences were filed on behalf of the Defendant/Applicants to defend the proceedings.

(d)	The Defendant/Applicant says he was not made aware of or forewarned by the Plaintiff/Respondents Lawyers of the default and the intention to apply for Default Judgement.

(e)	The Defendant/Applicant was not aware of the Court Orders until served on 18 April, 2014.

(f)	The Orders were granted on 14 March 2014 in which,

(i)	The Defendant/Applicant was ordered to pay the liquidated sum of K38,700.00 and,

(ii)	The Defendant/Applicant was ordered to give up possession of the property at Section 75, Allotment 9, Kokopo, East New Britain Province and being all of the land contained and described in State Lease Volume 10 Folio 198, no later than 30 days from the date of the Order, and

(iii)	Interest at 8% per annum on the principle sum from the date of filing to the date of judgement, and

(iv)	Costs of the application to be taxed, if not agreed.

(g)	The 30 day period for Compliance with the Orders expired on 14 April, 2014. The Orders were actually served 4 days outside of this period on 18 April 2014.

(h)	At certain times between the filing of the Writ and the grant of the Default Judgement the Defendant/Applicants interests had been compromised by an apprehended conflict of interest in that:

(i)	No explanation had been provided on the Defendant/Applicants behalf for the failure to file an Intention to Defend and Defence particulars by his previous Lawyers.

(ii)	By November 2013 Warner Shand Lawyers were acting for Palmalmal Earthmoving & Construction Limited, in another matter, a company solely owned by the Defendant/Applicant Andrew Pakila while at the same time acting against the Defendant/Applicant in this matter.

(iii)	By 17 April 2014 Kamen Lawyers whom the Defendant/Applicant had instructed were acting for the Defendant/Applicant in another matter but not in the current matter.

(iv)	There is no evidence that any forewarning notice was provided to the Defendant/Applicants Lawyers or if there was any notice it was not brought to the attention of the Defendant/Applicant for reasons unknown.

(i)	Default was allowed to be entered not by reason of any conduct on the part of the Defendant/Applicant but that of his Lawyers at that time.

(j)	The particulars of Defence provided by the Defendant/Applicant on the issue on meritous defence impacted on the following considerations that:-

(i)	The Defendant/Applicant has had a valid agreement with Mabuhay Enterprises Limited, the owner of the property in dispute to lease the land with the option to purchase.

(ii)	The Defendant/Applicant has improved the property under the said lease to the value of K115, 000.00 with a workshop, as office building and a labourer's quarter.

(iii)	The purported transfer to the Plaintiff/Respondents of the property was without the knowledge of the Defendant/Applicant, without the Defendant/Applicant been able to exercise the option to purchase, and without payment of any valuable consideration by the Plaintiff/Respondents.

(iv)	Title to the property may have been illegally acquired without the Plaintiffs/Applicants paying full value of the property.

(v)	The Plaintiffs/Respondent has never carried out any improvements on the property.

(vi)	The rent charged is excessive and without regard to the fact that it was the Defendant/applicant who carried out improvements on the property.

(vii)	The notice to vacate the premises within a month is harsh and oppressive and in breach of Section 41 of the Constitution when the Defendant/Applicant has been on the premises for more than 10 years.

15. However, the applicant in its motion provided some evidence of requisite requirement when it comes to filing an application to set aside default judgment as referred to in the issues referred to hereunder.

ISSUES

16. The issues that the defendant must satisfy the court in order to set aside the default judgment is whether the defendant has:

(a)	a meritous defence; and, 

(b)	file notice without undue delay; and,

(c)	the successful rate in the application,

LAW

17. The law on Default Judgment is well settled in this jurisdiction under Order 12 Rule 25 of the National Court Rules. It reads:

25.    Default. (17/2)
A defendant shall be in default for the purposes of this Division—

(a)  where the originating process bears a note under Order 4 Rule 9, and the time for him to comply has expired but he has not given the notice; or

(b) where he is required to file a defence and the time for him tofile his defence has expired but he has not filed his defence; or

(c)  where he is required under Order 8 Rule 24 to verify his defence and the time for him to verify his defence in accordance with that Rule has expired but he has not so verified his defence.

26.    Procedure on default. (17/3)
Where a defendant is in default, the plaintiff may—

(a)  take the steps mentioned in Rules 27 to 33 according to the nature of his claim for relief against the defendant in default; and

(b) carry on the proceedings against any other party to the proceedings.

18. The process to recover liquidated specific monies is provided under Order 12 Rule 27 of the National Court Rules and it reads:

27.    Liquidated demand. (17/4)

(1)    Where the plaintiff's claim for relief against a defendant in default is for a liquidated demand only, the plaintiff may enter judgement against that defendant for a sum not exceeding the sum claimed in the statement of claim on that demand and for costs.

(2)   Where a claim for a liquidated demand includes interest at an unspecified rate, interest accruing after the date of filing the statement of claim to the date of entry of judgement shall, for the purposes of judgement under this Division be reckoned at the rate of 8% yearly.

19. The Plaintiff invokes the above provision under Order 12 Rule 27 of the National Court Rules because it is liquidated demand regularly entered. The court upon being satisfied with the Plaintiff compliance with the 6 requisite checklist pre-conditions for default judgment, entered judgment against the defendant with statutory cost at 8% yearly interest rate is applicable and charged in the event that the parties fail to express their interest rate in the contract.

APPLICATION OF LAW TO THE FACTS

20. The law on default judgment is well settled in this jurisdiction. When the Plaintiff files a motion to seek default judgment, the court has a duty to satisfy itself and confirm that the procedural requisite inventory check list, act as pre-conditions are complied with by the Plaintiff. These are provided under Practice Direction of 1987 requiring a plaintiff to forewarn the defendant or their lawyer of the intention to seek judgment by default, if in the event that the defendant has filed notice of intention to defend and particulars of defence are filed. However, there is a further issuance of a subsequent Practice Direction No 5 of 1997 setting out the procedures for seeking a default judgment which requires such to be made to a Judge by way of a motion and these Directions have been incorporated into the Motions (Amendment) Rules 2005, and see Rule 19 (3) of the National Court Rules. For an outline of this procedures were clearly articulated and emulated in the following cases of Mapmakers – v – BHP [1987] PNGLR 78, and Paraka & Os – v – Kawa & The State (2000) N 1987, and Kaluni – v – Warole (2000) N 2114. However, in the case of Giru – v – Muta (2005) N2877, the Court further expounded the checklist of 6 pre-conditions on an application for a default judgment. These are: (1) Proper Form, (2) Service of Notice of Motion and Affidavits, (3) Default, (4) Warning, (5) Proof of Service of Writ, (6) Proof of Default.

21. The above set of pre-conditions were applied in the case of Kitipa –v – Auali & Ors (1998) N 1773, where court held that the Rule 34 gives the Court discretion in ordering a judgment by default. The judge also held in this case that a default judgment may still not be entered even where a proof of the due service of the Writ has been given where the effect of the default judgment would prejudice the right of other co-defendants, or that the pleadings are so vague or does not disclose a reasonable cause of action or that the default judgment cannot be sustained in law. 

22. In this case on foot, I am satisfied that the Plaintiff has met the entire 6 preconditions that comprise of the checklist in this matter and also the Statement of Claim by the Plaintiff is quite in order . The Counsel for Plaintiff, however, drew the Court's attention to the fact that the requirement on forewarning the defendant before the motion on default judgment is filed is an exception to this case. The reason being that when defendant was served with the originating process, it has a note attached to it where it clearly stipulates and states in no uncertain terms as a warning to the defendant and I quote:

"That the defendant is liable to suffer judgment or any order against him unless the prescribed form of notice of intention to defend is received in the Registry within 30 days after the service of this Writ of Summons on you"(Underline emphasis is mine).

23. The note clearly puts the defendant on notice that it is the requirement of the law that requires the defendant to file a notice of intention to defend the action within 30 days from the date of service of the Writ of Summons. The legal consequences of failing to file notice of intention to defend within 30 days in the Registry will give the Plaintiff, the right to seek judgment by default through the notice of motion to seek judgment by default without further notice under Order 12 Rule 27 of the National Court Rules. I am satisfied that Plaintiff has met the entire pre-conditions required to secure a judgment by default and the Court therefore grants the motion accordingly in favour of the plaintiff.

24. The defence counsel submits in support of the motion made reference to the landmark case on Green v Green on application to set aside the default judgment. In the case of Green & Co Pty Ltd (Receiver Appointed) v Roger Britain Green [1976] PNGLR 73 N28. O'Leary AJ: dealt with the application under O. XXXI, r. 15 of the Rules of Court to set aside a judgment signed for failure to deliver a defence within the time allowed by the Rules.Where an application was made to set aside a judgment regularly entered for default in failing to file a defence to a writ of summons specially endorsed under O.VI, r. 7 of the Rules of Court, claiming money received to the use of the plaintiff, where the defence raised was a denial by the defendant of receipt of any moneys for the use of the plaintiff, however the explanation given for allowing judgment to be signed was that the time limitations for entering a defence had not been adverted to and where no explanation was offered for a delay of fourteen months in making the application. The application to set aside default judgment was refused.

25. In the present case, the defendant was served with the Writ of Summons and endorsed by the defendant since November 2012 and proof of service filed thereafter. Therefore, the defendant is deemed to have seen and understood the content of the Plaintiff's Statement of Claim. The defendant is required by law to deliver a Notice of Intention to Defend and particulars of defence filed within 30 days, the legal time period provided by the National Court Rules. Having failed to do so, since November 2012 to and including the date the default judgment was entered on 10th March 2014, the plaintiff was entitled to sign judgment against him by default.

26. But defendant/applicant claims that there are facts the applicants intended to rely upon, and will adduce evidence to show that the order for default judgment was entered irregularly on the following basis:

(i)	No forewarning notice was given to the Defendant/Applicant before the application for default judgment was filed and before the application was moved,

(ii)	Default was allowed as a direct result of apprehended conflict of interest on the part of Defendant/Applicant then Lawyers to prevent the default and to correct the default.

27. The defendant/applicant strongly contested that should the Court accept that the judgement was regularly entered then it should be set aside nevertheless on the following reasons:

(i)	The Defendant/Applicant has provided a reasonable explanation setting out why judgement was allowed to be entered by default, and

(ii)	The Defendant/Applicant has provided a credible defence that clearly sets out the facts which show a defence on the merit.

(iii)	The application has been made swiftly after the Defendant/Applicant became aware of it.

(iv)	From the facts relied upon the interests of justice dictate that the default judgment be set aside and the Defendant/Applicant allowed to file his Defence and cross-claim so that the matter can proceed inter parties.

28. The learned defence counsel finally submits that his client has met the relevant requisite requirements to set aside the judgment entered by default on 14 March 2014. It therefore follows that the said judgement ought to be set aside and defendant must be heard in his defence.

29. In the case of Inchcape Shipping Services (PNG) Ltd – v – TG Holdings Ltd [2010] PGNC 199; N4268 (11th October 2010) His Honour Hartshorn J dealt with the case where the defendants filed an application to set aside a default judgment. The Plaintiff as sub-bailee and agent commenced this proceeding seeking amongst others, the value of 13 vehicles that had been taken by the defendant. Default judgment was entered for failure to file defence out of time. The Court held that:

1.	In setting aside a judgment entered regularly, the defendant must:

(a)	Show that it has a defence on the merits,

(b)	Provide satisfactory explanation as to why the judgement was allowed to by default.

(c)	Show that the application is made within a reasonable time of the judgment becoming known: Green & Co. Pty Ltd – v – (Receiver Appointed) – v – Roger Britain Green [1976] PNGLR 73 followed,

2.	The negligence of a lawyer should not constitute a satisfactory explanation on behalf of a defendant as to why judgment was allowed to be entered against it by default.

3.	A setting aside application should be made as soon as possible 

30. However, on the contrary the Plaintiff provides the following response in rebuttal to the motion and they are: 

(a)	That the defendant defence has got nothing to do with the plaintiffs' outstanding rentals owing.

(b)	That the former landlord owes defendant right of first refusal to purchase property in question has got nothing to do with the plaintiff. It was the prerogative of the former landlord to offer the defendant first right of refusal and therefore plaintiff is an innocent party and privy to that in-house arrangement.

(c)	That the improvement done to the property is a matter for the defendant to pursue with the former landlord.

(d)	That the plaintiff has the clear title to the property and is entitled to quite enjoyment of the property, if defendant has any issues, he has the right to sue as a separate action against the former landlord. The plaintiff is not in the position to defend the former landlord nor has the standing to stand in for former landlord.

(e)	That the defence allegation on legal counsel not filing a defence has got nothing to do with the plaintiff. The defendant has an option to file action against the lawyer concerns for professional negligence, or whatever that action may be in law.

(f)	That the defendant has 30 days to file Notice of Intention to Defend and particulars of defence. It is Plaintiff humble view that defendant has ample time to explore and file defence within time limitation under the Rules.

(g)	That under the new amendment Motion Rules, it is clear that the plaintiff has no legal obligation under the rule to forewarn defendant for plaintiff's intention to seek default judgment, if defendant do not file Notice of Intention to Defend file in Court Registry within the time stipulated in the Rules. However, there are two particular exceptional instances where legal service of court documents, in respect to Notice of Intention to Defend and particulars of Defence is deem not to have been served on Plaintiff where:- (i) Even, if it is filed in court but not served on the plaintiff is deems no service is affected. (ii) Even, if registered and served on the plaintiff but Proof of Service is not filed in court before the return date, is deemed no service, as well. But in this case, there was no Notice of Intention to defend file within 30 days at the registry after the Writ of Summons was served renders the plaintiff to enter default judgment with non notice to the defendant to forewarn that Plaintiff will file application to seek default judgment.

(h)	However, the court is at liberty and may consider not to enter default judgment, if the pleadings in the Statement of Claim are so vague and do not disclose any legal cause of action at law, the court may refuse to enter a default judgment. 

(i)	Whether defendant has a meritous defence.
31. Having alluded to the Plaintiff's response in rebuttal in respect to the issues submitted by Defendant in support of the application to set aside the default judgment, the issue whether the defendant has meritorious defence can be addressed and put into its right perspective. This can be done by looking at the Plaintiffs' pleading in their Statement of Claim. It is very clear with rental outstanding owing and also the title of the property has changed hands from the former landlord, who would have given the defendant the first right of refusal to purchase, but didn't do so for reasons only best known to the former landlord. But the Plaintiff is the new landlord and therefore cannot assume the legal obligations and play the role of the first landlord to accommodate the defendant past in-house arrangement between the former landlord and the Plaintiff, the new landlord has no binding legal obligation to the Defendant as Plaintiff was a privy party to that in-house arrangement between the defendant and former landlord.

32. The history of the case reveals in the pleadings that the defendant with the consent of Mabuhay Enterprises Limited and the Plaintiffs has made improvements to the Plaintiffs' Land. However, the Plaintiffs have since 1st February 2012 invoiced the Defendant on a monthly basis. On 4 September 2012, the Plaintiffs' caused their lawyers to write to the Defendant pointing out the outstanding accrued unpaid rental then stood at K38, 700.00 and as a result the tenancy between them was at an end. The arrangement was thereby terminated. The Plaintiffs invited the Defendant to nominate how they wished to deal with the matter of the improvements to the premises. Would the Defendant removed them or would the Defendant seek compensation by negotiation with the Plaintiffs? In any event the Plaintiffs' intention was made very clear and advised that they wanted vacant possession of the premises within 30 days, namely by 04 October 2012.

33. When by 24 September 2012, the Defendant had not responded to the earlier letter of 4 September 2012, the Plaintiffs caused a further letter to be written by the Plaintiffs' lawyers to the Defendant re-iterating its position, seeking vacant possession by 4 October 2012. The Plaintiffs have received no response to either of those letters, and the outstanding rental to 30 September 2012 of K38, 700.00 remains unpaid. Whilst Plaintiff did not deny that there was some prior knowledge about defendant carrying out some major improvement on the property, but kindly put defendant on notice on two separate occasion as to his position, as to how he wants to deal with it, in view of their intention to have a vacant possession of the property by 4th October 2012 by the defendant. There was no answer to either of these two notices, simply to make his position as to whether he was prepared to settle out on agreed negotiated terms with the Plaintiff. 

34. The Plaintiff received deafening silence from the defendant on how he would settle with the improvement he carried out on the property as plaintiff want a vacant possession of the said property from the defendant. I therefore cannot see why defendant would claim that he would have a meritorious defence and a credible cross-claim against the Plaintiff for improvement done to the property. Whilst this is not denied by the Plaintiff, but defendant has demonstrated and exercised bad faith when not responding administratively to two notices sent to him by plaintiff's lawyer. In view of these developments, I am not convinced that the defendant has a meritorious defence.

(ii). Whether the application has been made swiftly after the Defendant/Applicant became aware of it and provided some reasonable explanation setting out why judgement was allowed to be entered by default. 

35. There is no dispute that the defendant did file application to set aside the default judgment within reasonable time and without further delay upon being made aware of the judgment been entered. However, whether the defendant has provided some reasonable explanation why the judgment was allowed to be entered. The Counsel submit on behalf of his client that default judgment was allowed as a direct result of apprehended conflict of interest on the part of Defendant/Applicant then Lawyers to prevent the default and to correct the default. The defendant from the outset shift the blame to a certain named law firm, who defendant alleges that the certain law firm counsel was instructed to file a notice of intention to defend and a defence and particulars of defence, has got nothing to do with the plaintiff. 

36. The defendant has an option to file action against the lawyer concerned for professional negligence, or whatever that action may be in law. This point was made very clear in the case of Inchcape Shipping Services (PNG) Ltd – v – TG Holdings Ltd [2010] PGNC 199; N4268 (11th October 2010), it was held in particular, that "the negligence of a lawyer should not constitute a satisfactory explanation on behalf a defendant as to why judgment was allowed to be entered against it by default". 

37. Hence, the defendant's contention on this issue cannot hold up and dismiss it in its entirety.

(iii) The success rate with the application

34. Having referred to the above issues, the success rate depends on the strength of the validity and the legality of the issues that form the main contentions that support the application to set aside the default Judgment of the defendant. The court has ruled that the defendant has not made out the meritous defence and the reasonable explanation that results in the default judgment being entered. The success rate of the application to set aside hinges on those two prerequisite issues. I have found against the defendants' meritous defence and no reasonable explanation advancing that support the motion to set aside the default judgment.

35. I am satisfied that the justice of the case swings the scale in favour of the Plaintiff in the circumstances of this case. However, the defendant is at liberty to consider taking separate legal action against the former landlord and or against the lawyer or law firm according to the rule of law. In passing, I do take note of the fact that the defendant did state in his defence and expressed grave distaste over excessive monthly rentals and the right to be given the option to purchase the property for being in occupation for little over ten (10) plus years. During the currency of his occupation the defendant did carry out quite substantiative improvement on the property in the tune of K115, 000.00. There is evidence on file that the defendant was put on notice by the Plaintiff when it became very obvious that the defendant was behind monthly rentals and advice of the Plaintiffs' need to have the vacant possession of the property and how he would like his expenses on the property be addressed and settled. The Plaintiff told the defendant to vacate the property by 4th October 2012 by his lawyer through a letter. 

36. The defendant has filed no evidence to confirm that he has responded positively to the plaintiffs' proposal, was indeed to no avail that necessitated the need for recovery action by plaintiff now before the court. It is unfair to the plaintiff where he has given the defendant the golden opportunity to negotiate an agreed settlement over his improvement expenses over the said property, because the Plaintiff want the vacant possession of the property, which he has the indefeasible title. For the defendant to file motion to set aside the default judgment and to file a cross-claim is like having to have a second bite to the cherry. If there was an open dialogue that follows from the plaintiffs' letters, I am of the view that this matter would not have come this far.

CONCLUSION

37. I am satisfied that there was a clear liquidated amount of outstanding rentals owing by the defendant and notice of such recovery action was given to the defendant some 18 months ago and the defendant did nothing about the case, except shift blame to a certain lawyer for his non action. I find that the judgment is regularly entered judgment emanating from the liquidated rental arrears in the sum of K38, 700.00.

38. Even, if the defendant has given any legal instructions to a certain lawyer to act on his behalf to file Notice of Intention to Defend does not constitute a reasonable explanation. The case authority that addresses the foregoing legal proposition is the case of Inchcape Shipping Services (PNG) Ltd –v- TG Holdings Ltd [2010] PGNC 199; N4268. In that case, it was held that the negligence of a lawyer should not constitute a satisfactory explanation on behalf a defendant why notice of intention to defend and particulars of defence was not filed and why judgment was allowed to be entered against it by default. 

39. And, finally on the issue on the meritorious defence, the Plaintiff is not required nor obligated to forewarn the defendant of his desire to file application to seek default judgment, when defendant has failed to file Notice of Intention to defend within 30 days. The legal requirement under the new motion amendments practice direction rules of Motions (Amendment) Rules 2005, and see Rule 19 (3) of the National Court Rules, makes it very clear that unless a Notice of Intention to Defend was filed within 30 days after service of the Writ of Summons, the Plaintiff is not required to forewarn again when seeking to enter default judgment. 

40. I am of the view that the defendant has brought it upon himself to bear his own peril for non-committal to plaintiffs' "real gentleman" gesture offer to address his improvement expenses on the property, but to no avail. Whilst Plaintiffs' position on the issue is negotiable and manageable, the initiative to progress the subject matter rest squarely on the defendant to reach some concerted agreeable outcome. The defendant has not exhausted this avenue available to him, when the opportunity was offered to him to this date by the Plaintiff. Unless this avenue is fully exhausted, the option for cross-claim in this application is very much premature at this stage.

41. I am satisfied that the defendant has not made out his case on the balance of probabilities before the court, and therefore the application to set aside default judgment entered on 14th March 2014, is hereby refused.

ORDER

42. The court accordingly made orders that:

1.	The application by Defendant/Applicant to set aside the default judgment of 14th March 2014 is dismissed forthwith.

2.	The cost is in favour of the plaintiff, if not agreed be taxed.

3.	The time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

The court orders accordingly.
___________________________________________________________
Warner Shand Lawyers: Lawyer for the Plaintiff 
Donald & Company Lawyers: Lawyer for the Defendant