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Pacific Helicopters Pty Ltd v Department of Defence [1998] PGNC 127; N1820 (24 July 1998)

N1820

PAPUA NEW GUINEA
(In the National Court of Justice)

WS No. 347 OF 1995

BETWEEN:

PACIFIC HELICOPTERS PTY LTD
- Plaintiff -

AND:

DEPARTMENT OF DEFENCE
- First Defendant -

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
- Second Defendant -

GOROKA: SAWONG J
1998: 17, 24 July

Practise & Procedure - Summary judgement - Evidence of facts on which claim is based - Admission - Sufficiency of - Contained in letters exchanged between parties - claim for moneys owing on helicopter hire services provided - Summary Judgement entered - National Court Rules O. 12 r. 38

Practise & Procedure - Default Judgement - Defendants default in filing defence - Judgement entered - National Court Rules.

Cases cited:
Tsang v Credit Corporation (PNG) Limited [1993] PNGLR 112
Chief Collector of Taxes v T. A. Field Pty Ltd [1975] PNGLR 144

NOTICE OF MOTION

This was an application on notice by a plaintiff seeking summary judgement and in the alternative default judgement in respect of a claim for moneys owing for helicopter hire services.

Counsels:
L. Manua, for the Plaintiff
No appearance for the Defendants

24 July 1998

SAWONG J: The Plaintiff in this matter is seeking summary judgement, and in the alternative default judgement under O. 12, r. 38, r. 32, respectively of the National Court Rules. The claim is for moneys owing for helicopter services provided to the defendants at the request of the defendants. The statement of claim refers to and sets out certain invoices, the amounts and the dates on which those services were rendered to the defendants.

O. 12 r. 38 is in the following terms:

"38. Summary Judgement.

(1) Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff -

• (a) there is evidence of the facts on which the claim or part is based; and
• (b) there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed,
  

the Court may, by order, direct the entry of such judgement for the plaintiff on that claim or part, as the nature of the case requires.

(2) Without limiting Sub-rule (1), the Court may under that Sub-rule direct the entry of judgement for the plaintiff for damages to be assessed.

(3) In this rule, "damages" includes the value of goods."

The principles involved in this particular rule is succinctly set out in the Supreme Court decision in Bruce Tsang v Credit Corporation (PNG) Limited [1993] PNGLR 112. There the court said at p. 117:

"---There are two elements involved in this rule:

(a) there is evidence of the facts on which the claim or part is based; and

(b) that the plaintiff or some responsible persons give evidence that in his belief there is no defence.

In this case, there is no issue in relation to the first elements.

As to the second element, the plaintiff must show in (the) absence of any defence or evidence from the defendant that, in his belief, the defendant has no defence. If a defence is filed or evidence is given by the defendant --- the plaintiff must show that, upon the facts and/or the law, the defendant has not defence. The plaintiff will not be entitled to summary judgement if there is a serious conflict on question of fact or law. Whether a case should go to trial on these issues will be determined on the facts of each case. However, the authorities show that the summary jurisdiction should only be involved in a clear case: See Chief Collector of Taxes v T. A. Field Pty Ltd [1975] PNGLR 144".

I would adopt and apply these principles to the present case.

Counsel for the plaintiff has submitted that on the uncontested evidence given by the Managing Director of the plaintiff and by Mr Manua of counsel, both elements of this rule have been satisfied and that as such the court ought to direct entry of summary judgement against the defendants.

The evidence from Mr Smith, the Managing Director of the plaintiff is clear and unequivocal. He gives detailed evidence in his affidavit of the debt and his discussions with senior official of the defendants including the then Deputy Prime Minister, who acknowledge the outstanding debt, due and payable to the plaintiff. Mr Smith finally deposed that in his belief the defendants have no defence at all.

Mr Manua, counsel for the plaintiff also deposed an affidavit. In his affidavit, he deposes to the fact that he held discussions with the Solicitor General Mr J. Kawi, who acknowledge the debt and admitted that the defendants have no defence at all to the plaintiff's claim.

I am satisfied on the undisputed evidence given on behalf of the plaintiff that it is entitled to the benefit of the clear evidence on liability and quantum. I find that the plaintiff is entitled to summary judgement under O. 12 r. 38, in the sum of K10, 566.16.

In case, I am wrong on this, I am also satisfied that the defendants have defaulted in filing their defences. The evidence shows that after they filed their Notice of Intention to Defend, they have not filed their defence. Accordingly, I would also find that the plaintiff is entitled to have judgement entered against both defendants jointly and severally.

In so far as the claim for interest is concern, I accept the submissions made on behalf of the plaintiff. I award interest at the rate of eight percent (8%) per annum from the date of the filing of Writ to the date of the payment of the judgement debt in full.

I Order that Summary Judgement be entered against the Defendants jointly and severally in the sum of K10,566.16 together with interest at the rate of 8% per annum from the date of filing of the Writ to the date of the payment of this judgement debt in full.

Costs shall follow the event.

___________________________________

Lawyers for the Plaintiff: Fiocco Posman & Kua
Lawyers for the Defendants: No appearance