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Saulep v Australia and New Zealand Banking Group (PNG) Ltd [2016] PGNC 201; N6395 (18 July 2016)

N6395

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 599 OF 2014

BETWEEN:

RALPH AUGUSTINE SAULEP trading as
SAULEP LAWYERS
Plaintiff

AND:

AUSTRALIA AND NEW ZEALAND
BANKING GROUP (PNG) LIMITED
First Defendant

AND:
MICHAEL KANDIU
Second Defendant

Waigani: Hartshorn J.
2015: August 20^th,
2016: July 18^th

Application for Summary Judgment

Cases cited:

Christopher Smith v. Ruma Construction Ltd (2000) N1982
William Duma v. Eric Meier (2007) SC898

Counsel:

Mr. J. S. Umbu, for the Plaintiff
Mr. S. Bonner, for the Second Defendant

18^th July, 2016

1. HARTSHORN J: The plaintiff Ralph Augustine Saulep trading as Saulep Lawyers (Mr. Saulep) applies for summary judgment, amongst others, against the defendants, Australia and New Zealand Banking Group (PNG) Limited (ANZ) and Mr. Michael Kandiu (Mr. Kandiu).

2. The application was permitted to proceed in the absence of representation of ANZ as I was satisfied that counsel for ANZ was present in court on 9^th July 2015 when the subject notice of motion was adjourned for hearing and so was aware of the hearing date and time of this application.

Background

3. Mr. Saulep acted for a vendor on the sale of a property to Mr. Kandiu. On 27^th September 2013 at settlement, the vendor received from Mr. Kandiu three cheques made payable to Saulep Lawyers Trust Account, one of which was an ANZ bank cheque in the sum of K 165,764.00. The cheques were banked into Mr. Saulep’s Trust Account with the Bank South Pacific (BSP) on the same day. After the cheques were deposited, Mr. Saulep wrote out a Trust Account cheque in the sum of K 165,764.00 to the vendor. On 30^th September 2013, Mr. Kandiu requested the ANZ to cancel the bank cheque. ANZ advised Mr. Saulep’s bank, BSP to dishonour the bank cheque and return it. Mr. Saulep was not notified by either ANZ, Mr. Kandiu or BSP of what had occurred and he did not become aware of the cancellation of the bank cheque until a later reconciliation of his Trust Account. Mr. Saulep requested the ANZ to restore or repay the said amount to him, but the ANZ refused. Mr. Saulep then commenced this proceeding claiming amongst others various declaratory relief, orders and damages.

This application

4. There are many decisions as to the requirements for a successful summary judgment application. As to such an application, in the Supreme Court case of William Duma v. Eric Meier (2007) SC898, the Court said at [10]:

&##160; “<220;The ppincirees relating to applications for summary judgment are well settled in this jurisdiction. Summary judgment is a discrery pond magranted if there is evidence of facts octs on which the claim is based and evidenvidence isce is given by some responsible person that in his belief the defendant has no defence to the claim or part of the claim (see Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301 and Bruce Tsang v Credit Corporation (PNG) Limited [1993] PNGLR 112). The discretion conferred on the Court should be exercised in a clear case and with considerable care. Summary judgment should be granted only where there is no serious triable issue of fact or law. If there is no dispute as to fact and there is clear admissions of the claim or part of the claim then judgment must be entered for the plaintiff (see Chief Collector of Taxes v T.A. Field Pty Ltd [1975] PNGLR 144; Dep International Private Ltd v Ambogo Sawmill Pty Ltd [1987] PNGLR 117; Kumul Builders Pty Ltd v Post and Telecommunication Corporation [1991] PNGLR 299; and Curtain Brothers (Qld) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 295).”

5. I also make reference to a passage in Christopher Smith v. Ruma Construction Ltd (2000) N1982, a decision of Sakora J in which his Honour, in my respectful view, correctly records the test to be applied when regard is had to the wording of Order 12 Rule 38 (1) National Court Rules. For summary judgement to be entered:

“1. The applicant must verify by affidavit evidence the cause of action.

2. The applicant must swear to a belief on his part that the respondent (defendant) has no defence to the cause of action (or the pleadings).

If the Court has been satisfied in respect of (1) and (2), then the onus is on the respondent to:

3. show an arguable defence or that there is a real question to be tried.”

6. Mr. Saulep submits that in regard to ANZ, there is evidence of facts on which his claim against ANZ is based. Further, there is evidence given by him, that in his belief, ANZ has no defence. It is the case that Mr. Saulep has filed numerous affidavits in this proceeding. They do contain evidence of facts upon which his claim against ANZ and Mr. Kandiu is based. Mr. Saulep deposes to the effect that:

a) he was at all material times the lawful owner of ANZ Bank Cheque no. 454849 in the sum of K165,764.00 (subject cheque) as at 27^th September 2013;

b) neither ANZ or Mr. Kandiu had any right, either legal or otherwise, to cancel the subject cheque without his consent and authority;

c) Mr. Kandiu does not dispute that the subject cheque was raised in favour of Saulep Lawyers Trust Account of which Mr. Saulep is the direct beneficiary;

d) Mr. Kandiu does not dispute that the subject cheque was given to the vendor who is the client of Mr. Saulep, on the settlement date, being 27^th September 2013;

e) ANZ admits that it raised the subject cheque in favour of Saulep Lawyers Trust Account;

f) ANZ admits that title and property in the subject cheque passed to him at settlement;

g) ANZ admits that it was misled by Mr. Kandiu to cancel the subject cheque.

7. Further, in his affidavit sworn 27^th October 2014, Mr. Saulep has deposed that he is firmly of the view that ANZ does not have a bona fide defence and later in his affidavit sworn 21^st May 2015 that he does not believe that both defendants have a meritorious defence.

8. I am satisfied that the two legs referred to in Christopher Smith v. Ruma Construction (supra) have been satisfied. The onus then is on ANZ to show an arguable defence or that it has a real question to be tried. As mentioned there was no appearance on behalf of ANZ at the hearing of this application. There is no evidence before the court therefore of these two factors or any submissions in that regard.

9. Counsel for Mr. Saulep has made reference to the amended defence that has been filed on behalf of ANZ. In the amended defence, ANZ does not deny that amongst others, at settlement, property and ownership in the said ANZ Bank Cheques vested in the Plaintiff and the Vendor. ANZ then relies on amongst others, s. 82 (a) Bills of Exchange Act and pleads that its duty to pay the subject cheque was determined or revoked by a countermand of payment instruction given by its customer Mr. Kandiu.

10. As I stated in my extempore ruling delivered on 11^th December 2014 on an application made under Order 12 Rule 40 National Court Rules:

&##160;; “8220;ANZi>ANZ... puts heavy reliance upon it being instructed by its customer, the second defendant, to cancel hequethat the customer could issue the instruction and ANZ had to follow the instructiruction beon because of section 82 of the Bills of Exchange Act. That section concerns a cheque drawn on the bank by its customer. Here, however, the subject cheque is a bank cheque which is a cheque drawn on the bank by itself. I note that in paragraph 4 of its defence, ANZ does not deny paragraph 12 of the amended statement of claim which pleads, amongst others that ANZ bank cheques were raised by ANZ.”

11. I am not satisfied that ANZ has a reasonable defence by relying upon s. 82 Bills of Exchange Act as the subject cheque being a bank cheque, which is not denied by ANZ, is not a cheque drawn on it by its customer. Consequently it is not a cheque to which s. 82 Bills of Exchange Act applies. I am also not satisfied that the other purported defences pleaded in the amended defence of ANZ have a likelihood of succeeding.

12. From a perusal of the amended defence of ANZ and taking into account the evidence given on behalf of Mr. Saulep, I am not satisfied that ANZ has raised an arguable defence or a real question to be tried. For the above reasons I am satisfied that Mr. Saulep is entitled to summary judgment against ANZ.

13. As to the application for summary judgment against Mr. Kandiu, there is evidence given by Mr. Saulep of facts upon which his claim is based. Further, Mr. Saulep deposes that he does not believe that Mr. Kandiu has a meritorious defence. I am satisfied that the two legs referred to in Christopher Smith v. Ruma Construction (supra) have been satisfied. The onus then is on Mr. Kandiu to show an arguable defence or that he has a real question to be tried.

14. Mr. Kandiu purported to file a defence and cross claim on 15^th October 2014. This document was filed out of time and so by notice of motion filed on 17^th October 2014 Mr. Kandiu applied for amongst others, leave to file his defence and cross claim out of time. This motion was dismissed for want of prosecution on 13^th May 2015. There is therefore no valid defence and cross claim of Mr. Kandiu before this court. Further, this court was not referred to any evidence that it could consider to determine whether Mr. Kandiu has an arguable defence or a real question to be tried. Consequently, for the above reasons, I am satisfied that Mr. Saulep is entitled to summary judgment against Mr. Kandiu. Given this it is not necessary to consider the other submissions of counsel.

Orders

15.

a) Summary judgment is entered for the plaintiff against the first and s defes for dama damages toes to be assessed;

b) The first and second defendants shall pay the plaintiff’s costs of and incidental to the proceedipg;

ce is ged.

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Saulep Lawyers: Lawyers for the Plaint radshaw Lawyers: Lawyers for the First Defendafendant nt
San Bonner Lawyers: Lawyers for the Second Defendant