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Public Employees Association of Papua New Guinea v National Housing Corporation [2018] PGNC 560; N7723 (19 April 2018)

N7723

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1125 OF 2017

BETWEEN
PUBLIC EMPLOYEES ASSOCIATION OF PAPUA NEW GUINEA
Plaintiff

AND
THE NATIONAL HOUSING CORPORATION
Defendant

Waigani: Dingake J
2018: 19 April

Cases Cited:

Tsang v Credit Corporation (PNG) Ltd 1993 PNGLR 112 at page 117.

Counsel:

Mr. Martin C Ginyaru, for the Plaintiff
No Appearance, for the Defendant

19^th April 2018

1. DINGAKE J: This is an application for summary judgment pursuant to Order 12 Rule 38, alternatively for default judgement pursuant to Order 12 Rule 25 (b), for judgment to be entered against the defendant in the sum of K258,718.25 plus the annual CPI adjustments from the Pay Number 14 of 2011 to Pay Number 20 of 2017 and the non-remitted subscriptions that has accrued from Pay Number 20 to date.
2. The dispute seem to center around certain membership subscription fees which the applicant alleges the respondent was obliged to deduct from the plaintiff’s members salaries every fortnight and remit to the plaintiff, which the respondent is alleged to have failed to do.
3. I have read the supporting affidavits of Peter Togs filed of record in support of the relief claimed, and it seems to me that the application for summary judgment cannot succeed because there is no evidence of the facts upon which the claim or part of the claim is based.
4. The law on Summary Judgment is authoritatively set out in the case of Tsang v Credit Corporation (PNG) Ltd 1993 PNGLR 112 at page 117, where the Supreme Court held that two elements must be met before summary judgment is entered. These are:
   1. There must be evidence proving the essential elements of the claim; and
   2. That the plaintiff or some responsible persons give evidence that in his belief the defendant’s Defence cannot be sustained.
5. In this matter there is no evidence proving the essential elements of the claim, in particular that the amount sought is actually due and owing.
6. I turn now to the alternative relief of default judgment.
7. It is now trite learning that in determining whether default judgment should be entered, there are at least six (6) factors/conditions the Court should consider.
8. The six (6) factors that the Court should consider are:
   1. Whether the Notice of Motion for Default Judgment is in proper form and supported by Affidavit?
   2. Whether the Notice of Motion and Affidavit have been served pursuant to the National Court Rules?
   3. Is the defendant in default?
   4. Has the plaintiff given notice/warning of its intention to apply for default judgment?
   5. Has the plaintiff filed an Affidavit confirming the service of the Writ of Summons?
   6. Has the plaintiff filed an Affidavit proving the default upon which it relies on? eg Affidavit of Search.
9. The plaintiff has satisfied all the elements enunciated above and I see no reason why default judgment on liability at least should not be granted.
10. The plaintiff’s claim is for unliquidated damages. Consequently, I enter judgment against the defendant for damages to be assessed.
11. Costs to be paid by the respondent/defendant.

_______ ____________________________________________________
Ginyaru Lawyers: Lawyers for the Applicant/Plaintiff
No Appearance: Lawyers for the Respondent/Defendant