N8895

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (COMM) NO. 779 OF 2018

BETWEEN:
KUSO MAILA ANDA LIMITED
Plaintiff

V

UNITED PACIFIC COPORATION
Defendant

Waigani: Anis J
2021: 11th & 30th June

NOTICE OF MOTION – application seeking leave to make further amendments to the amended statement of claim – minor error or typo – consideration and exercise of discretion – serious contest on cost – whether cost should be awarded on solicitor/client basis against the law firm or the lawyers – whether cost should be awarded on party/party basis – consideration and exercise of discretion

Cases Cited:

Papua Club Inc. v Nasaum Holdings Ltd (2002) 2273
Michael Kewa v Elias M. Kombo (2004) N2688
PNG Water Board v Gabriel M Kama (2005) SC821
Island Helicopter Services Ltd v Wilson Sagati & Ors (2008) N3340
Anave Megarak Ona v. NHC (2014) N5709

Counsel:

J Kondop, for the Plaintiff
N Pilamb, for the Defendant

RULING

30th June, 2021

1.	ANIS J:	The plaintiff applied for leave to amend its Amended Statement of Claim on 11 June 2021.  The application was contested.  I reserved my ruling on that day to a date to be advised.

2.	This is my ruling.

BACKGROUND

3.	The plaintiff’s primary claim is for alleged reimbursements of monies which it says were wrongly calculated and kept by the defendant.  The total sum claimed for is K208,681.  The claim is based on a 5-year contract which the plaintiff claims the parties entered into in October of 2007 (agreement).  The plaintiff says the defendant, at the material time, was a licensed Gaming Machine Operator who supplied gaming machines. The plaintiff says the defendant supplied gaming machines to it as a licensed operator, that is, pursuant to the agreement that the parties had. The gaming business was regulated under the Gaming Control Act (GCA).  

4.	Briefly, the plaintiff complains that the agreement was signed in contravention with some of the requirements under the GCA.  Consequently, it submits that that had led to the wrongful calculations of or deductions of the gross monthly profits that had been derived from the business for the past 5 years.  The defendant denies these claims.

NOTICE OF MOTION

5.	The plaintiff’s notice of motion was filed on 31 May 2021 (NoM).  Upon discussions or exchanges between the bench and the bar, it became apparent that the main intended relief was relief 3, which states, Pursuant to Order 8, Rule, 50 of the National Court Rules, leave be granted to the Plaintiff to file and serve the Further Amended Statement of Claim within 7 days.

6.	Parties presented their arguments on that basis.

PRELIMINARY VIEW

7.	At the hearing, I had indicated that upon hearing from the parties, that I was leaning towards granting the application generally.  Despite that, I allowed the parties to complete their submissions.

8.	Having considered the submissions, I must say that my view has not changed.  The only amendment or typographical error the plaintiff wants changed to the Amended Statement of Claim filed on 30 November 2020 (ASoC), is the date of the alleged agreement.  Instead of the date 1st October 2007, as shown at paragraph 5 of the ASoC, the plaintiff requests that the day 1st should be replaced with 12th for it to read 12th October 2007.

9.	There are various applicable factors that a Court may take into account, in such applications as this.  They are set out in cases like Papua Club Inc. v Nasaum Holdings Ltd (2002) 2273 and Michael Kewa v Elias M. Kombo (2004) N2688, to name a few.  The Court’s power remains discretionary, and I note that I need not tick all the requirements for this case.  The only change which the plaintiff seeks to change is the day when the contract was signed.  I note the evidence and the submissions of the parties herein.  The error, to me, appears as a mere oversight on the part of the plaintiff or its lawyers.  Instead of typing in, 12th October 2007 at paragraph 5 of the ASoC, it is stated as 1st October 2007.  Should I refuse leave because of this minor oversight?  What is the real prejudice given that cost would be an obvious consideration that may be sought or awarded where required?  Whether the change is necessary?  The answers to these questions all favour the plaintiff.

10.	I therefore will grant leave to the plaintiff to file a further Amended Statement of Claim which shall be in the form as the one that is attached as annexure C to the Affidavit of John Lais filed on 31 May 2021.

COST

11.	An award of cost in this instance or type of application, remains discretionary.  Ordinarily, if an application is successful, cost would follow the event. 

12.	In the present case, the plaintiff request that cost should be ordered in the cause.  The defendant on the other hand submits that cost should be awarded in its favour against the lawyers of the plaintiff, on a solicitor/client basis.  I asked counsel whether notice of a forewarning had been given to the plaintiff that the defendant would be seeking cost in that manner.  Counsel answered in the affirmative and referred to annexure A to the affidavit of Mr Kondop filed on 31 April 2021.  The attachment is a letter dated 10 March 2021 from the defendant’s lawyers.  The relevant part is the final paragraph which reads, We therefore ask that the plaintiff withdraw its Reply within 7 days failing which, we have instructions to apply to Court to have it struck out and will seek solicitor/client costs against Manase & Co. Lawyers on an indemnity basis.

13.	The plaintiff in reply and on point, submits that the warning was not in relation to the intended amendment, but rather, it was in response to the plaintiff’s Reply which was filed in response to the Defence.

14.	I have considered the submissions of the parties on this issue.  I uphold the plaintiff’s submission in regard to the forewarning argument.  Upon perusing the full content of the letter of 10 March, I concur that the warning therein relates to issues surrounding the Reply that had been filed by the plaintiff to the defendant’s Defence.  It has no relevance to the issue of cost to what is before this Court.  

15.	Case law on the requirement to forewarn a party before seeking cost against the party on solicitor/client basis is settled.  It is good practice to give a forewarning in writing to seek costs on a solicitor and client basis. See cases: PNG Water Board v Gabriel M Kama (2005) SC821, Island Helicopter Services Ltd v Wilson Sagati & Ors (2008) N3340 and Anave Megarak Ona v. NHC (2014) N5709.

16.	In regard to an award of cost for the NoM in general, I am inclined to grant cost to the defendant using the party/party costs scale.  Despite the fact that no forewarning had been given by the defendant to the plaintiff in regard to the matter that is before the Court, I note that the defendant had incurred cost in defending the matter.  And this application came about because the plaintiff had over-looked or failed to insert the date that it had wanted included, into the ASoC.  I note from its evidence that the plaintiff had asked the defendant to consent to the proposed amendment.  The defendant could have agreed to the proposal, thus avoid this hearing.  But evidence shows that the defendant did not agree or consent to the proposal.  In my view, the defendant was at liberty not to consent.  This then led the plaintiff to file the present NoM, which in practice, is the next thing to do.

ORDERS OF THE COURT

17.	I make the following orders:

1.	Leave is granted, and the plaintiff shall file and serve within 7 days from today, its draft Further Amended Writ of Summons and Statement of Claim which is annexed as annexure C to the affidavit of John Lais filed on 31 May 2021.

2.	The defendant, if it decides to, may file and serve its defence within 14 days thereafter.

3.	The plaintiff shall pay the defendant’s cost for defending this application on a party/party basis which may be taxed if not agreed.

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

The Court orders accordingly
________________________________________________________________
Manase & Co:	Lawyers for the Plaintiff
Mel & Hennry:	Lawyers for the Defendant