N9490

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1301 OF 2019

BETWEEN
ELIZABETH TINARONG CARROL
Plaintiff

AND
SENTAWAN (PNG) LTD
Defendant

Waigani: Linge AJ
2022: 09th March

PRACTICE AND PROCEDURES – application for summary disposal – assessment of damages—unliquidated damages

LAND LAW– Breach of tenancy agreement- right to claim rent- interest at commercial rate

Cases Cited:

Dekenai Constructions Limited v Michael N. Wilson & Koeya Perit /A Warner Shand Wilson Lawyers, (unreported), WS No. 714 of 2017;
Daniel Don Kapi v Samuel Abal (2005) N2856.
Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112
Curtain Bros (Qld) Pty Ltd & Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285

Counsel:

Ms. Tongamp, for the Plaintiff

11th March, 2022

1.	LINGE A J:	This is a ruling on the Amended Notice of Motion filed on the 21 February 2022.  The application seeks orders for summary disposal of the matter pursuant to Order 10 Rule 9A(1) (a) and (2) of the National Court Rules or otherwise referred to as the National Court Listing Rules 2005.  Applicant also seeks leave to dispense with service requirement.

2.	The application came before me on the 23 February 2022.  Applicant is represented by Counsel. No appearance is entered for the defendant/respondent. 

Facts

3.	The cause of action relates to a Commercial Lease Agreement, dated 15 August 2007, between the plaintiff and the defendant over property described as Portion 34 Millinch Muliama, Fourmil Feni, New Ireland.

4.	The basic term of the Agreement is that the plaintiff leased her property to the defendant for purposes of storing, marking, trimming and general preparation of logs for loading and shipment.

5.	Rental of the said property was agreed by parties at the rate of K2,500.00 per month exclusive of GST for a period of five (5) years.

6.	The lease expired on the 15 August 2016 and the defendant continued to occupy the property and in the main continue to pay K2,500.00 to the plaintiff until the last payment of K2,500.00 made on the 16 August 2019.

7.	In May 2017 parties had agreed in a revised rental of K10,000.00 per month which became effective from May 2017; the defendant started to pay on the new rate but then defaulted and reverted to paying the old rental rate of K2,500.00 per month.

8.	The plaintiff commenced this proceeding on the 11 October 2019 claiming outstanding rental for the period from 2016 to 2019.

Evidence

9.	The plaintiff/applicant relies on the two (2) affidavits by the plaintiff both filed on the 15 February 2022, one in support of the application and the other for assessment of damages.

10.	The summary of the plaintiff’s affidavit in support is as follows:

		(a)	Two weeks after the 9 August 2021 Court order her lawyers wrote 	to Kuman Lawyers, who are acting for the defendant in proceeding WS 	No,1367 of 2019 advising of the dismissal outcome of that proceeding 	and also reminding the defendant’s lawyer that the Commercial Lease 	Agreement remained terminated by letter of 13 September 2019, and for 	the defendant to vacate the said property after one (1) month.

		(b)	On the 13 August 2021 her lawyer caused another letter to the 	Defendant regarding the 9 August 2021 order and notifying the defendant 	for matter to be set down for assessment and urging a response within 	seven (7) days, but there was no response.

		(c)	Her lawyers tried to get in touch with defendant’s lawyer, Mr.Titus 	but it proved difficult and no feedback.

		(d)	Out of frustration she instituted eviction proceeding against the 	defendant at Kavieng District Court in respect of the property. 

		(e)	On the 28 September 2021 finally, her lawyer got in touch with Mr. 	Gaure Odu of Titus Lawyers, the defendant’s lawyers and sought 	confirmation whether he was acting for the defendant and also notifying 	him that the matter is now subject to assessment for damages.

		(f)	She deposes that despite the notification the defendant and his 	lawyer had not responded at all.

11.	On the plaintiff’s affidavit on Assessment of Damages the following is the summary.

(a)	In early January 2017, the defendant represented by Mr. Thomas Tiew and plaintiff in the presence of her son and Mr. Amos Daniel agreed that the defendant would continue to occupy her property being Portion 34, Milinch Muliama at a rental rate of K10,000.00 per month.

		(b)	The defendant then proceeded to make payment of K10,000.00 per 	month soon after agreement was reached including backdated payments 	to August 2016 as the initial lease agreement in July 2016.

	(c)	The defendant made rental payments at K10,000.00 per month for months from August 2016, however, there were some intermittent payments in between as set out in a table in her Statement of Claim and as set out below, showing the outstanding to date.

		(d)	The defendant currently owes a total of K353,350.00 plus interest as 	outstanding for the lease of the property to date.

		(e)	These recent calculations include the months of October, December 	2019 and January 2020 which were initially claimed in the Statement of 	Claim at K40,000.00.

		(f)	However, the defendant whilst continuously occupying the land 	even after lease was terminated and this proceeding instituted, kept 	paying at the old, expired rate of K2,500.00.

		(g)	As such, some payments for these four months were made as per the 	table above.

		(h)	Hence, the proper calculation would be to remove the K40,000.00 	outstanding included in the initial amount claimed in the statement of 	claim and include the recent calculations reflecting payments made:

		Total Amount in the Statement of Claim		=		K217,850.00
		Minus the K40,000.00 for the four (4) months	=		K  40,000.00
		Equals …………………………………………….	=	K177,850.00

		(i)	The total outstanding confirmed in the Statement of Claim 	excluding months of October, November, December 2019 and January 	2020 would be K177,850.00 plus interest.

		(j)	The other arrears accumulating after this proceeding was filed in 	Court commence from October 2019 to recent, September 2021 is now at 	a total of K175,500.00.

		(k)	As such, the total arrears are now at K177,850.00 + K175,500.00 = 	K353,350.00 plus interest.

		(l)	Plaintiff deposes that she is entitled to 15% per annum of the overall 	total outstanding owed (K353,350.00) pursuant to Clause 8.1 (c) (ii) (e) 	of the Commercial Lease Agreement, to be further multiplied by three (3) 	years.

Submission by Counsel for Plaintiff

12.	Ms Tongamp of counsel for the plaintiff/applicant submits based on the affidavits and confirms the existence of a Commercial Lease Agreement between the parties which expired on the 16 August 2016.

13.	She also submits that during a round table discussion in May 2017 parties agreed for rental to be increased to K10,000.00 per month and that following the discussions the defendant started paying on the new rate of K10,000.00 but then defaulted, resulting in the termination of the Agreement by the plaintiff.

14.	Counsel submits that proceeding titled WS 367 of 2017 filed by the defendant to restrain the plaintiff from the said property had been dismissed with cost on the 15 July 2021.

15.	She also submits that the defendant has not vacated the property after their case was summarily dismissed on the 15 July 2021causing the plaintiff to file ejectment proceedings against the defendant at the Kavieng District Court.

16.	Ms Tongamp submits further that on the 9 August 2021, the Court entered interim default judgment against the defendant in this proceeding.

17.	In relation to the total outstanding rental to be paid by the defendant she submits that the amount the court should consider for payment is K353,350.00.

Ruling

18.	The issue for my determination is whether this is an appropriate case for entry of Summary Judgment against the defendant.

19.	The plaintiff relies on Order 10 Rule 9A (15) 1 and 2 and Order 12 Rule 38 of the National Court Rules.

20.	Order 10 Rule 9A (15) of the National Court Rules gives the court discretion to summarily determine or summarily dispose of the matter. To determine is to put an end usually where the plaintiff has not undertaken steps to prosecute the matter. To summarily dispose is akin to summary judgment in situations where there are non-compliance of orders or directions and/or non-appearance at directions or listings hearing.

21.	In Dekenai Constructions Limited v Michael N. Wilson & Koeya Peri T/A Warner Shand Wilson Lawyers, (unreported) judgement), of Kariko J in WS No. 714 of 2017, his Honour suggested the principles to be applied under this Rule when considering applications seeking orders sought pursuant to O 10 R 9A (15) of the National Court Rules:

	“(1)	Orders of the Court and directions must be complied with, and non-	compliance shows disrespect to the Court and is at the peril of the 	defending party. 

		(2)	The defaulting party must provide a reasonable explanation for the 	default and any application for extension of time to comply must be made 	within the time period for compliance. See also Daniel Don Kapi v 	Samuel Abal,(2005) N2856.”

22.	In this case the evidence tendered in the affidavit of the plaintiff filed on the 14 February 2022 deposes that since the Court Order of the 9 August 2021 which struck out the defence for failure to comply with an earlier direction of the Court, the defendant had continued to be in non-compliance by not appearing for listing and further direction hearings including setting down for assessment of damages.

23.	In relation to Order 12 Rule 38, the principle is settled in this jurisdiction in Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112 and followed in Curtain Bros (Qld) Pty Ltd & Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285, both Supreme Court decisions at pages 117 and 288 respectively identified two (2) elements involved in the rule as: 

“(a)	Evidence of the facts proving the essential elements of the claim; and

(b)	That the plaintiff or some responsible persons gives evidence that in his belief there is no Défense.”

24.	Courts have consistently considered and applied these principles based on the merit and circumstance of each case depending on the oral and tendered evidence of each case.

25.	The defendant has continued to be in default of rental payment in relation to the plaintiff’s property at Portion 34, Milinch Muliama, Fourmil Feni, New Ireland and have no right to remain on the property.

26.	Thus, pursuant to Order 10 Rule 9A (15) 1 and 2 of the National Court Rules, I am satisfied that this proceeding be summarily disposed and in terms of Order 12 Rule 28 of the National Court Rules summary judgment will be entered for the plaintiff.

27.	On Assessment of Damage, I have considered the unchallenged affidavit evidence of the Plaintiff in relation to the Statement of Claim, and it is my conclusion that the plaintiff is only entitled to what is pleaded plus interest and any incidental costs.

28.	Counsel submits for Court to consider and grant order for payment to the plaintiff in the amount of K 353,350.00 made up of K 177,350.00 pleaded in the Statement of Claim plus arrears of K 175,850.00 and in my view, this is a fair amount under the circumstance.  

Conclusion

29.	On the evidence before me, I find that the non-compliance by the defendant warrant my disposing of the matter.  I have considered how I can do that, and I am satisfied that the elements pertaining to summary judgment has been properly established.

30.	I have considered the interest of justice and in my view and based on the conduct of the case it must favour the plaintiff.

Order

31.	Accordingly, I order that:

(1)	Summary Judgment is entered against the defendant for the sum of K353,350.00.

(2)	Interest at the Commercial Lease Agreement of 15 % is to be further 	multiplied by three (3) years.

	(3)	The defendant is to pay cost of this proceeding.

	(4)	Time is abridged.
	_______________________________________________________________
Sabo’s Lawyers:	Lawyers for the Plaintiff