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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO.1208 OF 2014
BETWEEN:
TOYOTA TSUSHO (PNG) LIMITED
Plaintiff
AND:
JAMES KOWA trading as KALANGA HIRE CAR
Defendant
Waigani: David, J
2017: 12 April & 19 May
PRACTICE AND PROCEDURE – application for summary judgment – whether summary judgment can be entered - relevant considerations – application of considerations – application granted - National Court Rules, Order 12, Rule 38.
PRACTICE AND PROCEDURE – application for preservation of property-defendant had a prior claim with the plaintiff - cheque drawn by defendant to purchase motor vehicle from a motor vehicle dealership–motor vehicle delivered to defendant upon delivery of cheque-after delivery of the motor vehicle, the defendant transferred funds between his accounts resulting in cheque being dishonoured – despite demands, defendant refused to pay for the motor vehicle or return it to the plaintiff - peculiar facts and circumstances of case- application granted - National Court Rules, Order 4, Rule 49(9) and Order 14 Rule 10(1).
Cases cited:
Chief Collector of Taxes v T.A. Field Pty Ltd [1975] PNGLR 144
Commissioner General of Internal Revenue v Bougainville Copper Ltd (2009) N3857
Curtain Brothers (Qld) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285
Dep International Private Ltd v Ambogo Sawmill Pty Ltd [1987] PNGLR 117
Gabriel Yer v Peter Yama (2009) SC996
Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301
John Momis v Attorney General [2000] PNGLR 109
Kumul Builders Pty Ltd v Post and Telecommunication Corporation [1991] PNGLR 299
NCDC v Yama Security Services Pty Ltd (2003) SC707
Ralph Augustine Saulep v ANZ Banking Group (PNG) Ltd (2016) N6395
Severinus Ampaoi v Bougainville Copper Ltd (2012) SC1166
Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112
The State v Henshi Engineering Pty Ltd [1998] SC594
Vitus Kais v Sali Tagau; Tropic Timbers Ltd v Vitus Kais (2012) N4810
William Duma v Eric Meier (2007) SC898
Counsel:
R Bradshaw, for the Defendant/Applicant
K Kil, for the Plaintiff/Respondent
19th May, 2017
1. DAVID J: INTRODUCTION: This is a ruling on an application seeking principally summary judgment to be entered for the relief sought in paragraphs (a), (b), (d) and (e) of the plaintiff’s statement of claim pursuant to Order 12 Rule 38(1) of the National Court Rules. The alternative relief sought is an order for the defendant to deliver to the plaintiff’s Goroka Branch within 7 days the motor vehicle the subject of the plaintiff’s claim and to be held by the plaintiff until determination of these proceedings or until further order of the Court. The application was moved by the plaintiff pursuant to an amended notice of motion filed on 16 May 2016.
2. The defendant strongly contests the application.
EVIDENCE
3. In support of its application, the applicant relies on the affidavits of:
(a) Daniel Leme sworn on 27 October 2014 and filed on 8 December 2014;
(b) Noel Kera sworn on 31 October 2014 and filed on 8 December 2014;
(c) Thomas Anis sworn on 5 February 2015 and filed on 6 February 2015;
(d) Robert Bradshaw sworn on 12 May 2016 and filed on 16 May 2016;
(e) Robert Bradshaw sworn on 10 April 2017 and filed on 11 April 2017.
(a) James Jowa sworn on 20 March 2017 and filed on 23 March 2017;
(b) Daniel Leme sworn on 6 March 2017 and filed on 23 March 2017;
(c) James Jowa sworn and filed on 10 April 2017.
BRIEF BACKGROUND
SUMMARY OF PLAINTIFF’S EVIDENCE
11. The defendant was a regular customer of the plaintiff having previously purchased from it a number of vehicles over a period of time.
12. On 13 August 2013, the defendant went to the plaintiff’s Goroka Branch and requested a salesman to provide to him a quotation for the Hino truck. A quotation for the truck was given to the defendant which he accepted. The plaintiff also issued to the defendant Invoice No.G06724 dated 13 August 2014 for K399,900.00. The defendant instructed the salesperson to prepare the truck for delivery to him as he would return with the payment.
13. On 29 August 2013, the defendant went to the plaintiff’s Goroka branch and delivered a Bank South Pacific Limited cheque No.000108 dated 29 August 2013 drawn against the defendant’s account No.1001475890 in favour of the plaintiff for the sum of K399,900.00 for the purchase of the Hino truck which the plaintiff accepted. The plaintiff registered the truck in the defendant’s name, released it to the defendant and he took delivery of it.
14. On 11 September 2013, the plaintiff was advised by its banker that the cheque which the defendant had delivered for the payment of the Hino truck was dishonoured. The plaintiff advised the defendant of the dishonoured cheque and demanded that he either make full payment for the truck or return it.
15. By a letter from the defendant to the Manager of the plaintiff’s Goroka Branch dated 30 August 2013 which was received on 24 September 2013, the defendant said that he would pay for the Hino truck if his claim in connection with the Toyota Land Cruiser arising from an accident involving the Toyota Land Cruiser whilst under the care and control of the plaintiff and which gave rise to a dispute between the plaintiff and the New Tribes Mission were settled by the plaintiff.
16. By a letter dated 26 September 2013, the defendant wrote to the plaintiff advising that he intentionally moved funds between his accounts so that the cheque he had drawn in favour of the plaintiff for the payment of the Hino truck would be dishonoured.
17. On 24 April 2012, the defendant commenced the 2012 National Court proceedings claiming against the plaintiff as second defendant and a James Konts, an employee of the plaintiff as first defendant, the sum of K118,000.00 as the initial market value of the Toyota Land Cruiser and damages at a daily rate of K800.00 from 14 October 2011 to the date of judgment for loss of business.
18. On 12 June 2012, the plaintiff filed in the 2012 National Court proceedings its defence and cross-claim. The cross-claim was against a Pierce David as first cross-defendant and an employee of the New Tribes Mission and New Tribes Mission as second cross-defendant as owner of a Toyota Land Cruiser, registration No.LAZ852 (the NTB Land Cruiser). In the defence, the plaintiff essentially denied liability. It further denied that the first defendant, James Konts carelessly crashed the Toyota Land Cruiser, but the collision involving the Toyota Land Cruiser was wholly caused by the first cross-defendant who drove the NTB Land Cruiser negligently as a result of which the defendant’s motor vehicle sustained extensive damage.
19. On 20 October 2014, QBE Insurance (PNG) Limited (QBE Insurance), insurers for insured New Tribes Mission informed the plaintiff that the defendant’s claim was settled through payment made to the defendant in the sum of K144,541.09. A QBE Insurance Motor Vehicle Release Form entitled “Loss of Business – Full and Final Settlement” dated 14 February “2013” was executed by the defendant acknowledging that in consideration of receiving the amount paid of K158,995.20, it was being received in full and final satisfaction and discharge of all actions, claims and/or demands which he may have then or thereafter against QBE Insurance with respect to damage sustained to the Toyota Land Cruiser. A net amount of K144,541.09 was actually paid out to the defendant.
20. A QBE Insurance “Third Party Release” Form dated 4 December 2013 was executed by the defendant whereby he acknowledged that in consideration of receiving from QBE Insurance, the sum of K95,000.00, the payment was received in full and final satisfaction and discharge of all actions, claims and or demands which he would have then or thereafter against QBE Insurance with respect to the damage sustained by the Toyota Land Cruiser which was involved in an accident on 11 October 2011. A net amount of K86,363.64 was actually paid out to the defendant.
21. Despite repeated demands to either make the payment for the Hino truck or to return the truck, the defendant has done neither and continues to keep the truck.
22. On 23 September 2013, the plaintiff laid a written complaint concerning the conduct of the defendant in connection with the transaction between it and the defendant concerning the sale and purchase of the Hino truck with the Provincial Police Commander at Goroka. The police have not arrested the defendant nor have they taken any steps to re-possess the truck.
23. In an email sent by Kevin Yore of QBE Insurance to Noel Kera, lawyer for the plaintiff on 30 October 2014, it was advised that QBE Insurance paid K144,541.09 for both material damage and loss of rent claim to the defendant as a result of the accident and both the insured and QBE Insurance had no interest in the remains of the wreck which remained the property of the defendant.
24. On 14 April 2014, the defendant’s lawyers wrote to the plaintiff’s lawyers advising that the 2012 National Court proceedings had been settled by insurers, hence the claim would be withdrawn.
25. Despite the settlement of the 2012 National Court proceedings, the defendant has neither paid for the Hino truck nor returned it to the plaintiff and the truck continues to remain in his possession.
26. Noel Kera is a responsible person employed by the plaintiff and verily believes that the defendant has no defence to the claim.
SUMMARY OF DEFENDANT’S EVIDENCE
27. Daniel Leme was a sales representative with the plaintiff’s Goroka Branch for 15 years until he was sacked soon after the transaction in relation to the sale and delivery of the Hino truck to the defendant was conducted. He knows the defendant because whilst employed by the plaintiff, he sold many vehicles to him. The defendant was a valuable customer for the plaintiff for over 10 years.
28. The defendant is from the Western Highlands Province and is a self-employed businessman. He operated a fleet of vehicles for commercial and private purposes. He operated his business under the business name “Kalanga Hire Cars”. His primary business was the leasing out of his vehicles to clients at varying daily rates.
29. Around November 2010, the defendant purchased the Toyota Land Cruiser for K118,000.00.
30. In October 2011, the defendant delivered the Toyota Land Cruiser to the plaintiff’s workshop for service. On or about 14 October 2011, after completion of service, the motor vehicle was taken out for a test drive by a James Konts who was an employee of the plaintiff when it was involved in an accident with the NTB Land Cruiser along the Airport Road in Goroka. The Toyota Land Cruiser sustained damage beyond repair and was grounded at the plaintiff’s workshop.
31. The defendant requested the plaintiff to replace the Toyota Land Cruiser with a new one or to pay for its loss for over two years, but he did not receive any positive response from the plaintiff. Despite the plaintiff’s refusal to replace the motor vehicle or to pay for its loss, the defendant, as a regular and loyal customer, continued to purchase vehicles from the plaintiff.
32. The defendant instituted the 2012 National Court proceedings to recover the cost of the damaged Toyota Land Cruiser which he put at K118,000.00 and to claim for loss of business. The proceedings were partly settled by QBE Insurance, the insurer for the owners of the NTB Land Cruiser that was involved in the collision with the Toyota Land Cruiser. QBE Insurance paid to the defendant a total of K253,995.20. Of that amount, K118,000.00 was deemed as payment of the market value of the Land Cruiser and the balance of K135,995.20 for loss of business and related costs. Despite payment received from QBE Insurance, the defendant maintains that the plaintiff should pay for loss of business and expenses incurred as a result of the damage caused to the Toyota Land Cruiser. The defendant suffered loss of business income because he had a fixed hire agreement with the National Statistics Office and the amount paid by QBE Insurance was less than the loss suffered.
33. The 2012 National Court proceedings have now been transferred from the Goroka National Court to Waigani pursuant to an order of 17 March 2017.
34. Pending settlement, the defendant approached the plaintiff’s sales team to purchase a Hino, twin steer, truck. Daniel Leme prepared the quotation for K399,900.00 and with the approval of the Goroka Branch Manager, Mr Bonny Dama, he registered the truck which was given registration No. IAC 263.
35. Prior to writing a cheque, he disclosed to Daniel Leme and Bonny Dama that he would clear the cheque once his outstanding issue concerning loss of business caused by the damage to the Toyota Land Cruiser was settled by the plaintiff. Mr Dama and the defendant verbally and mutually understood that payment of the Hino truck was not going to be released unless the defendant recovered from the plaintiff his loss of business attributed to the damage caused to the Toyota Land Cruiser. Based on the defendant’s discussion with Mr Dama and Mr Leme, the defendant returned in the afternoon of 29 August 2014 with a cheque for K399,900.00 purportedly for the payment of the Hino truck and took delivery of it on the same day.
36. The defendant agrees to pay for the Hino truck, but believes that the plaintiff should bear some responsibility for loss of business which he calculates at K244,808.80.
UNDISPUTED FACTS
37. From all the evidence before me, the main undisputed facts for the purposes of the application under consideration are:
(a) The defendant operated a hire car business in Goroka.
(b) The defendant was a regular customer of the plaintiff and purchased the Toyota Land Cruiser from the plaintiff’s Goroka Branch.
(c) In October 2011, the defendant delivered the Toyota Land Cruiser to the plaintiff’s workshop for service.
(d) On or about 14 October 2011, after completion of service, the Toyota Land Cruiser was taken out for a test drive by a James Konts who was an employee of the plaintiff when it was involved in an accident with the NTB Land Cruiser owned by the New Tribes Mission along the Airport Road in Goroka.
(e) The Toyota Land Cruiser sustained extensive damage and was grounded at the plaintiff’s workshop.
(f) The defendant requested the plaintiff to replace the Toyota Land Cruiser with a new one or to pay for its loss for over two years, but he did not receive any positive response to his request from the plaintiff.
(g) The defendant then instituted the 2012 National Court proceedings to recover the cost of the damaged Toyota Land Cruiser which he put at K118,000.00 and claim for loss of business.
(h) On 13 August 2013, the defendant obtained a quotation from the plaintiff’s Goroka Branch for the Hino truck for K399,900.00.
(i) The plaintiff issued to the defendant an Invoice No.G06724 dated 13 August 2013 for K399,900.00.
(j) On 29 August 2013, the defendant went to the plaintiff’s Goroka branch and delivered a Bank South Pacific Limited cheque No.000108 dated 29 August 2013 drawn against the defendant’s account No.1001475890 in favour of the plaintiff for the sum of K399,900.00 for the purchase of the Hino truck which the plaintiff accepted.
(k) The plaintiff registered the Hino truck in the defendant’s name, released it to the defendant and he took delivery of it on the afternoon of 29 August 2013.
(l) On 11 September 2013, the plaintiff was advised by its banker that the cheque which the defendant had delivered for the payment of the Hino truck was dishonoured.
(m) The plaintiff advised the defendant of the dishonoured cheque and demanded the defendant to either make full payment for the Hino truck or return it.
(n) The defendant has neither paid for the Hino truck after his cheque was dishonoured nor has he returned the truck to the plaintiff and it remains in his possession to date.
DISPUTED FACTS
38. From all the evidence before me, the main disputed facts for the purposes of the application under consideration are:
(a) The defendant’s claim in the 2012 National Court proceedings was settled by payment to him by QBE Insurance, the insurer for the owners of the NTB Land Cruiser that was involved in the collision with the Toyota Land Cruiser, a total sum of K253,995.20.
(b) Of that amount, K118,000.00 was deemed as payment of the market value of the Toyota Land Cruiser and the balance of K135,995.20 for loss of business and related costs.
(c) Despite payment received from QBE Insurance, the plaintiff should pay the defendant for loss of business income and expenses incurred as a result of the damage caused to the Toyota Land Cruiser because at the material time, he had a fixed hire agreement with the National Statistics Office and the amount paid by QBE Insurance was less than the loss suffered.
ISSUES
39. The main issue arising from the present application is whether the plaintiff has made out a case for the entry of summary judgment? However, if that issue is determined in the negative, the next question to ask is whether the alternative relief sought by the plaintiff to return or deliver the Hino truck to it in the interim should be granted?
PLAINTIFF’S SUBMISSIONS
40. It was submitted by Mr Bradshaw of counsel for the plaintiff that this was a clear case where the application for summary judgment ought to be granted on the grounds that all essential elements of obtaining a summary judgment are present in the present case in that; firstly, there is evidence of facts on which the claim is based; and secondly, a responsible person namely, Noel Kera, a lawyer employed by the plaintiff has given evidence that in his belief the defendant has no defence.
41. Further grounds that the plaintiff relies on are:
(a) It is an offence to obtain or pay for goods with a valueless cheque under Section 14 of the Summary Offences Act, Chapter No.264.
(b) It is also an offence to obtain goods by false pretence under Section 404 of the Criminal Code.
(c) The fact that the defendant had a pending claim for damages against the plaintiff in the 2012 National Court proceedings gave the defendant no excuse for his deliberate conduct of conning or deceiving the plaintiff.
(d) The defendant’s claim in the 2012 National Court proceedings was simply a claim, no judgment having been entered in favour of the defendant against the plaintiff.
(e) The 2012 National Court proceedings were settled on 20 October 2014.
(f) The defendant’s claim in the 2012 National Court proceedings is also pursued in the defendant’s cross-claim in these proceedings.
(g) Instead of allowing the Court to determine his claim in the 2012 National Court proceedings, the defendant set out to deceive the plaintiff by; first requesting the plaintiff to provide a quotation for the Hino truck; second, he gave a cheque to the plaintiff for the amount quoted; third, he received the Hino truck; and fourth, he moved funds between his accounts so that the cheque would be dishonoured.
(h) The defendant received the Hino truck for nothing by false pretence and he has been in possession of the truck since 29 August 2013.
(i) The defendant’s conduct is dangerous; the rule of law and the judicial process must be respected.
(j) Vigilante type, self-help tactic should be discouraged.
(k) If the defendant’s conduct is allowed or condoned, the rule of law, particularly in commerce will be adversely affected. Persons who have claims against others will employ the same tactic as the defendant.
42. It was submitted in the alternative that the orders sought in paragraph 2 of the amended notice of motion be granted.
DEFENDANT’S SUBMISSIONS
43. It was submitted by Mr Kil of counsel for the defendant that the plaintiff’s application for summary judgment was misconceived and ought to be dismissed with costs on the grounds that:
(a) the defendant has an arguable case which raises serious issues of fact and law.
(b) the defendant took delivery of the Hino truck relying primarily on prior discussions and arrangements made with the plaintiff’s representatives at its Goroka Branch.
(c) the defendant’s claim for damages and loss of business assessed at more than K700,000.00 has not been tried and determined in a court of law.
(d) the 2012 National Court proceedings were partly settled when a payment of K253,995.20 was paid by QBE Insurance to cover costs for damage cause to the Toyota Land Cruiser, but the claim for loss of business is maintained because the amount paid by QBE Insurance was less than the income that would have been generated by the Toyota Land Cruiser under a hire agreement with the National Statistics Office.
(e) the 2012 National Court proceedings is pending and has now been transferred to Waigani by a court order obtained on 17 March 2017.
(f) there is no clear evidence of admissions that the defendant’s claim for loss of business has been settled.
44. As to the alternative relief sought by the plaintiff, it was submitted that the Hino truck has been in the possession of the defendant since 29 August 2013, so an order for repossession would be futile on the basis that the value of the truck has depreciated over time and will not serve any purpose. It was submitted that the balance of convenience favours the refusal of the relief sought under Order 14 Rule 10(1) of the National Court Rules.
THE RELEVANT LAW
45. The jurisdictional basis for this application upon which the plaintiff relies is Order 12 Rule 38(1) of the National Court Rules. The rule states:
“38. Summary judgement. (13/2)
(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 the facts on which the claim or part is based; and
(b) there is evidence given by the 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 the entry of such judgement for the plaintiff on that claim or part, as the nature of the case requires......”
46. The authorities concerning entry of summary judgment show that the Court exercises a discretionary power and the power may be exercised where two elements are present namely,; first, there must be evidence of the facts proving the essential elements of the claim; and second, the plaintiff or some responsible person must give evidence that in his belief there is no defence: Chief Collector of Taxes v T.A. Field Pty Ltd [1975] PNGLR 144; Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301; Dep International Private Ltd v Ambogo Sawmill Pty Ltd [1987] PNGLR 117; Kumul Builders Pty Ltd v Post and Telecommunication Corporation [1991] PNGLR 299; Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112; Curtain Brothers (Qld) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285; The State v Henshi Engineering Pty Ltd [1998] PGSC51, SC594; William Duma v Eric Meier (2007) SC898; PGSC 34; Commissioner General of Internal Revenue v Bougainville Copper Ltd (2009) N3857; Severinus Ampaoi v Bougainville Copper Ltd (2012) SC1166; Ralph Augustine Saulep v ANZ Banking Group (PNG) Ltd (2016) N6395.
47. The principles relating to summary judgment applications were summarised by Lay J in Commissioner General of Internal Revenue v Bougainville Copper Ltd where at paragraphs 13 to 15 of the judgment, His Honour said:
“13. A recent Supreme Court decision setting out the principles is William Duma v Eric Meier (2007) SC898; PGSC 34, Injia DCJ, Batari and Gabi JJ where the Court said at [10]:
“The principles relating to applications for summary judgment are well settled in this jurisdiction. Summary judgment is a discretionary power and may be granted if there is evidence of facts on which the claim is based and evidence 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 285).”
14. And in Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112 at 117 and Curtain Brothers (Qld) Pty. Ltd and Kinhill Kramer Pty. Ltd v The State [1993] 285 at 288 the Supreme Court said:
“As to the second element, the plaintiff must show in the absence of any defence or evidence from the defendant, that in his belief, the defendant has no defence. If a defence is filed or evidence is given by the defendant, as in this case, the plaintiff must show that, upon the facts and / or the law, the defendant has no defence. The plaintiff will not be entitled to summary judgment if there is a serious conflict on questions of fact or law. Whether a case should go to trial on these issues will be determined on the facts of each case”.
15. The United Kingdom courts have said that the procedure should not be used to obtain an immediate trial which requires determining points of law taking hours or days and requiring the citation of many authorities: Home and Overseas Insurance Code Ltd v Mentor Insurance Co (UK) Ltd [1983] 3 All ER 74 at 77; or the judge conducting a mini trial: Swain v Hillman & Anor [1999] EWCA Crim 2251 at [20], per Lord Woolf MR.”
48. The bottom line is that summary judgment will not be granted where there are serious issues of law and fact raised either in the pleadings or evidence. In other words, the Court’s discretion in favour of an applicant should only be granted in a very clear case and with considerable care.
REASONS FOR RULING
49. I have considered the submissions of the parties and the evidence before me.
Application for summary judgment
50. There are some similarities to the facts in the present case and those in Ralph Augustine Saulep v ANZ Banking Group (PNG) Ltd (2016) N6395. However, the present case to my mind is not a very clear case and I would accept the defendant’s submissions in that regard. The issue about the effect of the releases signed by the defendant in favour of QBE Insurance begs the question whether the claim for loss of business or the claim generally in the 2012 National Court proceedings was fully settled. This to my mind is a triable issue. I would refuse the application for summary judgment as a result.
Application for preservation of property
51. As to the alternative relief sought, I note the prohibition in Order 4 Rule 49(9) of the National Court Rules. I also note the decisions in John Momis v Attorney General [2000] PNGLR 109; NCDC v Yama Security Services Pty Ltd (2003) SC707; Gabriel Yer v Peter Yama (2009) SC996 and Vitus Kais v Sali Tagau; Tropic Timbers Ltd v Vitus Kais (2012) N4810 which stand for the proposition that one cannot seek a substantive relief in a notice of motion. Order 4 Rule 49(9) states:
“Except as otherwise expressly provided in the National Court Rules, motions shall be for relief on interlocutory matters only and not for the substantive relief claimed in the originating process.”(my emphasis)
52. The opening line of the rule “Except as otherwise expressly provided in the National Court Rules,” in my opinion does not impose a total prohibition or ban. The plaintiff seeks an order under Order 14 Rule 10(1) and that rule states:
“(1) In proceedings concerning any property, or in proceedings in which any question may arise as to any property, the Court may make orders for the detention, custody or preservation of the property....”
53. I think an application under this rule falls under the exception in Order 4 Rule 49(9) and will not amount to an abuse of the process of the Court. The power to be exercised is discretionary to be exercised on a proper basis. The peculiar facts and circumstances of this case would warrant the grant of the alternative relief. For these reasons, I will, in the exercise of my discretionary power under Order 14 Rule 10(1), grant the alternative relief sought.
ORDERS
54. The formal orders of the Court are:
(a) the application for summary judgment is refused.
(b) the alternative relief sought in paragraph 2 of the plaintiff’s amended notice of motion filed on 16 May 2016 is granted.
(c) the defendant shall pay the plaintiff’s costs of this application, to be taxed, if not agreed.
__________________________________________________________________
Bradshaw Lawyers: Lawyers for the Plaintiff
Nicholas Tame Lawyers: Lawyers for the Defendant
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