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Kots Investment Ltd v Toa [2017] PGNC 358; N7064 (13 November 2017)

N7064

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1058 of 2016 (COMM)

BETWEEN:
KOTS INVESTMENT LIMITED
trading as Kots Catering
Plaintiff

AND:
PHILIP TOA,
Chairman of Simbu Teachers
College Governing Council
First Defendant

AND:
SIMBU TEACHERS COLLEGE
Second Defendant

AND:
Hon. NOAH KOOL, MP
Governor of Simbu Province
Third Defendant

AND:
SIMBU PROVINCIAL GOVERNMENT
Fourth Defendant

Waigani: Hartshorn J.
2017: 9^th & 13^thNovember

Application to set aside summary judgment

Cases cited:

Wellcos Engineering Ltd v. Yawari (2008) N3443

Counsel:

Mr. Y. Awi, for the Defendants

13^th November, 2017

1. HARTSHORN J: This is a decision on an application to set aside the summary judgment that was entered in this proceeding against the first, second and fourth defendants.
   
2. I allowed the application to proceed in the absence of representation of the plaintiff as I was satisfied that the lawyers for the plaintiff were served with the relevant notice of motion and were made aware of the hearing date and time of the application.
   
3. The summary judgment sought to be set aside was entered on 9^th March 2017 (summary judgment). The defendants rely upon Order 12 Rules 8(2)(a) and 35 National Court Rules to set aside the summary judgment.
   
4. Order 12 Rule 8(2)(a) National Court Rules is as follows:
   

“The Court may, on terms, set aside or vary a judgement-

(a) where the judgement has been entered pursuant to Order 12 Division 3 (default judgement); or....”

5. The summary judgment was entered pursuant to Order 12 Rule 38 which is part of Division 4 of Order 12. So Order 12 Rule 8(2)(a) cannot be relied upon to set aside the summary judgment.
   
6. Order 12 Rule 35 National Court Rules is as follows:
   

“The Court may on such terms as it thinks just, set aside or vary a judgement entered in pursuance of this Division.”

7. Order 12 Rule 35 is part of Division 3 of Order 12. Again, the summary judgment was entered pursuant to a Rule that is part of Division 4 of Order 12, not Division 3. So Order 12 Rule 35 cannot be relied upon to set aside the summary judgment.
   
8. Consequently the defendants’ application to set aside the summary judgment must fail as must the consequential orders sought concerning filing a defence out of time.
   
9. The defendants, in the alternative, seek to dismiss the proceeding. As I mentioned to counsel for the defendants when he commenced his submissions, an application to dismiss a proceeding cannot be heard until after a judgment that has been entered in that proceeding, has been set aside. I refer to my decision of Wellcos Engineering Ltd v. Yawari (2008) N3443 in this regard.
   
10. Consequently, all of the relief sought by the defendants should be refused.
    

Orders

11. The Orders of the Court are:
    
    1. All of the relief sought in the Notice of Motion of the defendants’ filed 24^th March 2017 is refused;
       
    2. No order as to costs;
       
    100. Time is abridged.
         

_____________________________________________________________
Ame Lawyers: Lawyers for the Plaintiff
Gagma Legal Services: Lawyers for the Defendants