N10608

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.   341 OF 2023

PETER MONDO
-Plaintiff-

V

BOROK PITALOK for himself and as representative of Awonkalim,
Kimka, Ninkalin, Fikalim clans of Wangbin village in Star Mountain LLG
in Western Province
-Defendants-

Waigani: Carey J
2023: 1st and 12th December

STRIKE OUT– Should Defence be struck out?
SUMMARY JUDGMENT – Whether Plaintiff is entitled to Summary Judgment.

Held:

1.	 The Plaintiff is entitled to Summary Judgment against the Defendants for the amount of K3,160,000.

2.	 Interest at 8% per annum pursuant to provisions of the Judicial Proceedings (Interest in Debt and Damages) Act 1962 applies.

3.	 The Defendants shall pay the Plaintiff’s costs of and incidental to this proceeding, to be taxed if not agreed.

4.	Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith

Cases Cited

Akipa v Lowa [1990] PNGLR 321
Bluewater International v Mumu [2020] PGNC 392
Collector of Taxes v Field [1975] PNGLR 144
Curtain Brothers (Queensland) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285
Makapa & Ors v Dr. John Isiperau & Ors [2013] N6590
MVIT v Nand Waige & Ors [1995] PNGLR 202
NCDC v Yama (2003) SC714
National Provident Fund Board of Trustees v Maladina [2003] PGNC 16; N2486
Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112

Counsel:

A Meoree, for the Plaintiff
D Mewerimbe, for the Defendants

JUDGEMENT

12th December 2023

1.       CAREY J: The Plaintiff and the Defendants entered into a written contract on 10th August 2012.

2.      The Plaintiff was appointed as an agent of the Defendants to assist them in resolving two issues affecting them at the time which was to result in payment of K300,000 per annum for the duration of the contract which was 12 years. 

3.    The Defendants take issue with his ability to act on behalf of the other Clans named for which a contract indicates he acted in a representative capacity for some and not all the named Clans at the contract signing. 

4.    The Plaintiff’s counsel provided case law to support arguments raised and the Defendants’ counsel did not appear in Court nor provide any counterarguments supported by case authority.

5.    The Plaintiff contends that pursuant to Order 8 Rule 27(1) and 28 of the National Court Rules, the defence should be struck out.

6.    The Plaintiff further suggests that pursuant to Order 12 Rule 38(1) of the National Court Rules, summary judgment should be entered for reliefs for which he is claiming as outlined in the Statement of Claim.

7.    The Plaintiff avers that the Defendants did not pay the Plaintiff as agreed resulting in a breach of contract claim totalling K3,160,000.
(1)	SHOULD DEFENCE BE STRUCK OUT? 

8.  The Supreme Court case of Curtain Brothers (Queensland) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285 state that a party cannot alter any contents of a written contract.

9.     In Makapa & Ors v Dr. John Isiperau & Ors [2013] N6590, Cannings J indicated that:

  “In cases where there are multiple Defendants the task of the Court is to establish liability on the primary Defendant and only then determine the question of liability of other defendants.”  

In essence the argument with regard to the liability attributed to the defendants succeeds.

10.     The submission supported by evidence with the written contract confirms that there was a legally binding agreement signed by the Plaintiff and Defendants for himself and on behalf of all of the clans of Wangbin village in Star Mountain Local Level Government area in Western Province.

11.     In National Provident Fund Board of Trustees v Maladina [2003], Kandakasi J stated: 

  “Although O.8, r.21(1) permits a general denial as opposed to pleading the general issue which is prohibited by O.8, r.28, a party is nonetheless required to specifically plead to specific matters pleaded against him or her with particulars where that party is a party to the contract or the facts giving rise to the claim….A failure to do so may amount to an embarrassment, or have a tendency to delay or otherwise prejudice to the other party and may attract the application of O.8, r. 27.”

12.     The submission by the plaintiff that the non-admission of the Defendants in the defence when he is a party to a contract amounts to a denial under O.8, r. 28. The evidence indicates that there is a contract and thus this denial results in no reasonable defence and a breach of (O.8, r. 28 and supports the argument that the defense should be struck out. 

13.    In MVIT v Nand Waige & Ors [1995] PNGLR 202, the Supreme Court indicated the position on pleading the general issue which in the case of the defense put forward by the Defendant proffers ‘a conclusion which does not state the facts upion which such conclusion is reached.’ Akipa v Lowa [1990] PNGLR 321

14.    I find that the Plaintiff’s argument that the defense should be struck out is with merit and succeeds. Moreover, the defendants have not provided any argument or evidence to the contrary. 

(2)	IS THE PLAINTIFF ENTITLED TO SUMMARY JUDGMENT?

15.     Under O. 12 r. 38 of the National Court Rules application for summary judgment may be made.

16.     In Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112, the Supreme Court confirmed two elements required for an application for summary judgment. They are:

 i. Evidence of the facts proving the essential elements of the claim; and 
ii. That the plaintiff gives evidence that in his belief the Defendant has no defence. 
	 
17.     As stated in Collector of Taxes v Field [1975] PNGLR 144 summary jurisdiction should only be invoked in a clear case which were confirmed by the Supreme Court in NCDC v Yama (2003) SC 714. 

18.    The plaintiffs’ argument that summary judgment pursuant to O.12, r 38 of the National Court Rules applied, was supported by Bluewater International v Mumu [2020] PGNC 392 which states the key principles as follows:

“a. the discretion conferred on the court to enter summary judgment should only be exercised in a clear case and with considerable care;
b. summary judgement should be granted where there is no serious triable issue of fact or law;
c. if there is no dispute as to fact and clear admissions of the claim or part of the claim.”

19.     In this particular matter, there was a written contract which met the requirements of binding agreement between the Plaintiff and the Defendants.

20.     In Curtain Brothers (Queensland) Pty Ltd and Kinhill Kramer Pty Ltd v The State (supra), the Supreme Court granted judgement and it was hinged upon the fact that there was a written contract. 

21.     The Plaintiff has provided sufficient evidence to support the contractual obligation which has resulted in a breach of contract claim. Further, the Defendants has provided no evidence to the contrary and therefore has no defence. 

22.    The Plaintiff’s arguments in support of being granted summary judgement against the defendants succeeds and is accepted by this court.
  
23.     The Court thanks the Plaintiff’s counsel for providing case authority which was of great assistance.

ORDERS

24.     It is ordered that:

1.	The Plaintiff is entitled to Summary Judgment against the Defendants for the amount of K3,160,000.

2.	 Interest at 8% per annum pursuant to provisions of the Judicial Proceedings (Interest in Debt and Damages) Act 1962 applies.

3.	 The Defendants shall pay the Plaintiff’s costs of and incidental to this proceeding, to be taxed if not agreed.

4.	Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

________________________________________________________________
Horizon Lawyers: Lawyers for the Plaintiff
Mewerimbe Lawyers: Lawyers for the Defendants