N11202

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO.169 OF 2023

BETWEEN:
JANET WANGAI IN HER CAPACITY AS COORDINATOR OF ANGLICARE PNG INC – WABAG BRANCH
First Plaintiff

AND:
ANGLICARE PNG INC.
Second Plaintiff

AND:
JOE NAYEPE
Defendant

WABAG: COATES J
(DECISION DELIVERED IN WAIGANI)
26 MARCH 2025

DEFAULT JUDGMENT – lease agreement for office space – money paid – office space not provided.

Held:
The granting of a default judgment is a discretionary decision and in this case the discretion is exercised in favour of the plaintiffs.

Counsel
Mrs J. Wangai, Plaintiff (In-person)

DECISION

1.	BY THE COURT:   This is a case in which the original judge hearing this matter died before delivering a decision. 

2.	Following the decision and the procedure laid down in Ikian Lyanga v The Independent State of Papua New Guinea SC 1635, I will deliver a decision for the parties.

3.	His Honour Judge Lindsay heard the matter on the 10 November 2023.

4.	The Lyanga decision considers and sets out a procedure to determine the matter so that justice is done for the parties.

5.	The decision states that parties must be afforded natural justice, or procedural fairness, when a matter has been heard and there is an impossibility of the primary judge delivering a decision.

6.	As required by the Lyanga decision, I raised with the first plaintiff whether she sought a new hearing or whether they would consent to me listening to the recording or reading the transcript, with of course the filed material relied on, and deliver judgment. 

7.	I sought any new evidence or submissions as well.

8.	As only the first plaintiff appeared, despite notice of the Mention, on the first plaintiff’s advice I will proceed to listen to the recording or read the transcript and court file and deliver judgement.

SUBSTANTIVE MATTER

9.	By writ of summons filed 27 April 2023 the plaintiffs seek damages for termination of a lease agreement between themselves and the defendant.

10.	Damages sort is in the sum of K21,500, made up of the bond fee of K3,500. rental payments from April 2021 to September 2021 being K12,000 and rental payments from October 2021 to December 2021 being K6000.

11.	The statement of claim says the lease agreement was reached on 25 March 2021 and was for office space in the building the address of which is Section 15 Allotment 8, Hidden Valley, Wabag, Enga province.

12.	The plaintiffs state the monies were paid and in breach of the agreement the defendant did not give or deliver possession of the property to them.

13.	Despite attempts to take possession, the plaintiffs say that they terminated the agreement in writing on 10 February 2022 and sought reimbursement of the funds paid.

14.	No funds have been repaid.

15.	The defendant filed a notice of intention to defend on 7 June 2023, although the plaintiffs say it should have been filed in time by 27 May 2023.

16.	The defence was due by 10th June 2023.

17.	On 10 March 2023 the plaintiffs filed a notice of motion seeking default judgement in the sum of K21,500.

18.	On 7 August the plaintiffs wrote to the defendant stating that he had not filed a verified defence, and the plaintiffs would proceed to seek default judgement.

19.	On 13 September 2023, notice was given to the parties that the hearing was set down for 22 September 2023.

20.	I observed in the correspondence from the plaintiffs to the defendant negotiations, as well as notice of the hearing date.

21.	There is also correspondence from the defendant to the plaintiffs accepting a date for a mediation, an event which took place but without resolution being reached.

THE HEARING

22.	As the defendant was self-represented, I read the transcripts of the hearing to see whether he misunderstood the proceedings.

23.	On his own submission I conclude that he understood the proceedings.

24.	The defendant did file an affidavit on 1 November 2023, admitting his breach of the agreement at paragraph 3(c).

25.	In another affidavit he filed 25 October 2023, he explained he was having business difficulties and had no sustainable income and had intended paying the plaintiffs.

26.	From the submissions it appears to be the case that the defendant had signed the lease agreement with the plaintiffs and was using the money they paid to pay his lease for his business, a business which failed.

27.	He produced some documentation to that effect.

28.	At line 26 page 10 of the transcript, the defendant stated: “and your honour it is supported by my own annexure C in which I have in the same property, [a] rental agreement tenancy that I have already secured so I will raise funds from there to settle the debts that I owe to the plaintiffs. Your honour, I think that is all I can say.”

THE LAW

29.	The plaintiffs seeks default judgment against the defendant pursuant to O 32 r(1) of the National Court Rules.

30.	The cases require not only the Notice of Motion, but proof of service on the defendant, proof of the default, and affdavits of service and search – all  of which have been satisfied here.

31.	Default judgment is discretionary, which, as was stated in Kitipa v Auali, Supply and Tenders Board of Western Highlands Provincial Government and Ors (1998) N1773, the court may take into account a wide range of considerations.

32.	In examining relevant considerations, the defendant does not have any defence and has admitted breaching the agreement. What he does say is that he has an excuse in that he was having financial difficulties with his own business.

33.	However, I accept the submission of the plaintiffs, that the money they paid was to support his business, so there is little escape there.

34.	In granting judgment in default, the court is required to exercise its discretion judicially, in other words, consider all aspects of the case stated by both parties.

35.	There cannot be any doubt that the plaintiffs sought a lease and prepaid bond and rent, in good faith, in order to carry out the charitable work which is their business in Wabag.

36.	There can be no doubt, on what the defendant has sworn to, that he understands his breach and has wanted to repay the monies advanced.

37.	However, he should not have led the plaintiffs to believe that he could supply the office space when he accepted their money.

38.	Despite wanting to pay the money- he has taken no steps to do so.

39.	The discretion then, as hard as this is, knowing that the defendant is, or at least was at the time of hearing, having financial difficulties, is to grant the default judgment against him, as the plaintiffs have the stronger case.

40.	I will also make a costs order against him.

ORDERS

1.	Judgment in default against the defendant in favour of the plaintiffs in the sum of K21,500.

2.	The defendant to pay the plaintiffs costs as agreed or as assessed on a party-party basis.

Judgement accordingly