Kawage v Motor Vehicle Insurance Trust Ltd [2008] PGNC 75; N3354 (29 April 2008)

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CONTRACT LAW - claim for general damages - adult male - personal injuries sustained in motor vehicle along Okuk highway - enforceability of deed of release - application for judgment - based on out of court settlement negotiations - settlement pursuant to deed of release entered between parties - effect - dispute settled out of court - end of dispute - proceeding concluded by virtue of deed of release - defendant claims no agreement reached or alternatively deed of release signed by mistake - seeking avoidance of deed of release - whether court has power to entered judgment pursuant to deed of release - application for summary judgment under the guise of application to enforce a deed - National Court Rules - Order 12, rule 38 - consideration of principles - in application for summary judgment - evidence of facts of claim - evidence given by responsible person that in his belief there is no defence - summary judgment not available where serious questions of fact and law raised.

PRACTICE & PROCEDURE - whether procedure for summary judgment proper - proceeding an abuse of process - plaintiff seeking to enforce deed of release should file new proceeding to enforce deed of release - deed of release is a contract - enforceable on its face - enforceability is dependant on essential elements of ordinary contract - legal capacity of contracting parties - offer - acceptance - intention of parties to contract - plaintiff should plead elements of contract - alleged breach - appropriate to set out claim by way of pleadings and for parties to know defence - application for judgment refused - orders accordingly.

Caltex (Overseas) Limited -v- Douglas Charles Dent [1978] PNGLR 411
Ambua Kulange -v- Motor Vehicle Insurance (PNG) Trust (1990) N824
Motor Vehicle Insurance Trust Limited -v- Sali Tabanto [1995] PNGLR 214
National Capital District Commission -v- Yama Security Services Pty Limited (2003) SC797
Papua New Guinea Forest Authority -v- Concord Pacific Limited and the State (2003) N2465
Vailala Purari Investment Limited & Others -v- Papua New Guinea Forest Authority and Frontier Holdings (2004) N2594

1. MAKAIL AJ: On 17 February 2004, the Plaintiff through his lawyers issued this court proceeding against the Defendant to seek damages for personal injuries sustained in a motor vehicle along the Okuk highway between Goroka and Asaro in the Eastern Highlands Province on 7 September 2001.

2. By a Notice of Motion filed on 27 November 2007, the Plaintiff brings an application seeking the following Orders:

"1. The Deed of Release signed between the Plaintiff and the Defendant on the 18 May and 1 June 2007, for a sum of K82,500.00 be enforced.

3. I must say at the outset that I should have handed down my ruling on this application earlier than today but have been unable to do so because there is preliminary issue which has arisen in the course of my preparation of the ruling which was not raised by either counsel at the hearing. In this respect, I note that the Plaintiff has not stated in the Notice of Motion the provision of the National Court Rules he is bringing the application for judgment to be entered against the Defendant. I state this because to my mind it is a matter which will determine the outcome of the Plaintiff’s application for Judgment.

4. I consider that the issues of whether or not there is a contract by way of a Deed of Release (herein the "Deed") between the parties and if so, whether or not it was entered into by mistake or whether or not it should be enforced against the Defendant are all depended on the issue of whether or not the Plaintiff can enforce the deed of release in this present court proceeding. In other words, is it proper for the Plaintiff to seek judgment pursuant to the Deed in this present court proceeding? Therefore, the preliminary issue is whether or not the Plaintiff’s application for Judgment to be entered against the Defendant pursuant to the Deed is competent.

5. As I stated above and I note here again, the Plaintiff’s lawyers in moving the application to enforce the Deed have not referred me to the relevant provision of the National Court Rules on which the Plaintiff relies upon to enforce the Deed. In fact, I note that the Plaintiff seeks Judgment against the Defendant pursuant to the Deed. The question is; is this proper under the present proceeding?

6. On this preliminary issue that I have raised, I note here that both counsel have not addressed me at all perhaps through their in advertence and I am left to do my own homework to address this issue, hence the delay in this Judgment.

7. I infer that the Plaintiff is seeking Summary Judgment for K82,500.00 based on the Deed signed between the parties on 1 June 2007 pursuant to Order 12, rule 38 of the National Court Rules.

1. In support of the Plaintiff’s application, the Plaintiff relies on the following Affidavits:

(a) Affidavit in Support of Danny Gonol sworn and filed on 26 November 2007; and

(b) Affidavit in Support of Boi Kawage sworn on 13 February 2008 and filed on 14 February 2008.

2. In opposing the application and also to support its own application, the Defendant relies on the following Affidavits;

(a) Affidavit of Robert Doko sworn on 13 February 2008 and filed on 20 February 2008; and

8. From the Affidavits of the witnesses of the Plaintiff and also of the Defendant, the following emerged as facts not in dispute:

1. On 7 September 2001, the Defendant sustained personal injuries in a motor vehicle along the Okuk highway between Goroka and Asaro in the Eastern Highlands Province.

2. The Plaintiff sustained injuries to his face, hands, hips and legs. He was admitted to the Goroka Base Hospital and received medical treatment.

3. On 17 February 2004, the Plaintiff issued this court proceeding to recover damages for the personal injuries sustained in the said motor vehicle accident. On 19 March 2004, the Defendant filed its Defence denying the claim.

4. By a letter dated 4 March 2004, the Defendant requested the Plaintiff to attend at Marian Medical Clinic for a review. On 16 August 2005, the Plaintiff attended Marian Medical Clinic for a review of his physical condition and Dr Daisy Sonza provided a Medical Report which revealed the injuries as follows: "The current finding of marked muscle atrophy of the whole left upper extremity, a more objective sign of motor dysfunction is then highly suggestive of a nerve injury, a fact support by the absence of sensation in this part. The X-ray showed fracture which has healed well, both radius and ulnar bones.

(a) Upper Trunk	- Sensory deficit	- 25% value
	- Motor deficit	- 75% value
	- Multiple grade by value	- 20% impairment

(b) Middle Trunk	- Sensory deficit	- 5% value
	- Motor deficit	- 35% value
	- Combine value	- 21% impairment

(c) Combined values of Upper extremity impairment is 61% which gives 37% of impairment of the whole body

6. Thereafter, parties commenced negotiation to settle the claim out of court which began with the Defendant offering K6,000.00 to the Plaintiff on 13 April 2006.

7. On 11 May 2006, the Plaintiff’s lawyers replied to the Defendant’s offer of K6,000.00 by making a counter offer of K90,000.00.

8. On 23 October 2006, the Plaintiff filed a Notice to Set Down for Trial after the Defendant consented to the matter to be set down for trial.

9. After attending the National Court Civil call over on 16 April 2007, on 20 April 2007, the Plaintiff’s lawyers wrote to the Defendant to follow up on the counter offer of K90,000.00.

10. On 23 April 2007, the Defendant responded to the Plaintiff’s counter offer by offering K80,000.00. On 9 May 2007, the Plaintiff’s lawyers informed the Defendant that the offer of K80,000.00 was accepted and requested the Defendant to forward a Deed to them for the Plaintiff to execute.

11. On 18 May 2007, the Defendant sent a Deed to the Plaintiff’s lawyers for the Plaintiff to execute which the Plaintiff executed on 1 June 2007 and forwarded by facsimile to the Defendant on the same day.

12. On the same day, the Defendant replied by informing the Plaintiff’s lawyers that the Deed for K80,000.00 was rescinded or withdrawn. On 4 June 2007, the Plaintiff’s lawyers replied to the Defendant by stating that the parties had already agreed to settle the claim at K80,000.00 by way of the signed Deed.

13. After that, the Plaintiff and his lawyers did not receive any further response to the Deed or even the payment of K80,000.00 from the Defendant despite numerous letters of follow up for the payment by the lawyers of the Plaintiff to the Defendant.

14. Eventually, this led to the Plaintiff’s lawyers filing this present application to enforce the Deed entered between the parties. The Defendant claimed that the Deed was entered into by mistake. It had intended to settle the claim at K8,000.00 and not K80,000.00.

9. And so, as I said at the outset and after giving some thorough thought to the application of the Plaintiff seeking judgment pursuant to the Deed of 1 June 2007, I consider that the real issue in this application is whether or not the Plaintiff can enforce the Deed in this present Court proceeding. If the answer is yes, then I will consider first, the issue of whether or not the parties have entered into a contract by way of a Deed to settle the Plaintiff’s claim and if so, secondly, whether or not the Deed was entered into by mistake. Finally, whether or not the Deed can be set aside or rescinded on the grounds of mistake.

10. If I find that the present application is incompetent and should be dismissed, the last issue I have to determine is what becomes of the present Court proceeding?

11. Mr Gonol of counsel for the Plaintiff relies on two grounds to support the application to enforce the Deed.

12. First, Mr Gonol of counsel for the Plaintiff submitted that there is a contract by way of a Deed entered between the Plaintiff and the Defendant on 1 June 2007 for the Plaintiff’s claim for personal injuries to be settled in the sum of K80,000.00 and K2,500.00 for legal costs. The Deed was a result of negotiations between the parties between 13 April 2006 and 1 June 2007.

13. There was an initial offer made by the Plaintiff through Paulus Dowa Lawyers in their letter to the Defendant dated 11 May 2006 for the sum of K90,000.00. The Defendant made a counter offer of K80,000.00 in its letter to the Plaintiff dated 23 April 2007. The Plaintiff again through Paulus Dowa Lawyers in their letter to the Defendant dated 9 May 2007 accepted the counter offer of the Defendant of K80,000.00 and legal costs of K2,500.00. The consideration therefore was the payment of K82,500.00 to the Plaintiff.

14. Subsequently, the Defendant sent to the Plaintiff a Deed for the Plaintiff to sign. After the Plaintiff signed the Deed and returned it to the Defendant to organize payment, the Defendant failed to make the payment of K82,500.00 to the Plaintiff. The Plaintiff sent numerous follow up letters to the Defendant on when payment of K82,500.00 would be made. As there was a contract by way of a Deed to settle the claim between the Plaintiff and the Defendant, the Defendant breached the contract when it failed to pay the K82,500.00 to the Plaintiff.

15. Secondly, Mr Gonol of counsel for the Plaintiff submitted that the Plaintiff had a legitimate expectation that the claim would be settled by the Defendant on the amount of K82,500.00 on the basis that the Defendant had represented all along that the Defendant would settle the claim out of Court on that amount. It is now too late for the Defendant to pull out from all these representations.

16. On the other hand, Mr Peri of counsel for the Defendant contended that there is no contract by way of a Deed between the Plaintiff and the Defendant to settle the claim for K82,500.00 inclusive of legal costs. He contended that the Defendant had not made a counter offer of K80,000.00 to the Plaintiff. It was only K8,000.00, hence there was no contract between the parties for K80,000.00.

17. In the event that the Court finds that there is a contract between the parties, to settle the claim at K80,000.00 and K2,500.00 for legal costs then the said contract was made by mistake. The contract can be rescinded by virtue of a mistake of fact.

18. For this proposition, Mr Peri submitted that by comparing past National and Supreme Court Judgments on similar kind of physical injuries suffered by the claimants to the present case, it can reasonably be concluded that the Defendant had entered into a contract by mistake. For example, by comparing similar kinds of physical injuries suffered by the Plaintiffs in the Supreme Court case of Motor Vehicle Insurance (PNG) Trust -v- Salio Tabanto[1995] PNGLR 214, and the National Court case of Ambua Kulannge -v- Motor Vehicle Insurance (PNG) Trust(1990) N824, it can reasonably be inferred that the damages awarded would be between K6,000.00 and K8,000.00 for these kinds of physical injuries suffered by the Plaintiff in this case. The amount of K80,000.00 is way outside the range of damages awarded to the Claimants for these kinds of injuries.

19. In Salio Tabanto’s case (supra), the Supreme Court awarded the Respondent K8,000.00 as general damages after the Supreme Court upheld the appeal by the MVIL from the decision of the National Court to award general damages of K12,000.00. In that case, the Respondent suffered the following physical injuries:

1. All points of the left hand fingers from the index to little were stiff with about 10% range of motion;

2. The thumb is opposable normally only to the index finger and weak to the others;

(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-

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 judgment for the plaintiff for damages to be assessed.

2. the Plaintiff or some other responsible person gives evidence either verbally or by affidavit that in his belief there is no defence.

20. As I said at the outset, I consider that the real issue in this application is whether or not the Plaintiff can enforce the Deed in this present court proceeding. I consider that I have to determine this issue first in this application because the Plaintiff is seeking to enforce an alleged contract entered between him and the Defendant as full and final settlement of his claim against the Defendant for damages in the sum of K80,000.00.

21. It is my opinion that in order for the Plaintiff to enforce the Deed, he must commence a fresh or new court proceeding. He cannot seek to enforce the Deed of Release in the present proceeding. I am taking this course on the basis that there is an alleged contact by way of a Deed between the parties.

22. If the Defendant denies that there is a contract between the parties to settle the claim at K80,000.00, then this is an issue that must be tried at a proper trial and not at an interlocutory hearing such as in the present case. This is because the Plaintiff’s claim that an agreement has been reached between the parties is being disputed by the Defendant. And so, the Plaintiff must set out in his pleadings in the Statement of Claim the facts giving rise to the formation of the contract that is, the nature of offer, the acceptance of the offer and consideration. Then he must plead the alleged breach of the contract and the relief sought.

23. As a matter of law, the Defendant is entitled to reply to the claim by filing a Defence (if any), like for example, there was no intention to create such a contract or the contract was entered into by mistake.

24. To my mind, this is the correct course or procedure for the Plaintiff to take to seek enforcement of the Deed. The view I hold is the law at this point in time. It is the law that a settlement or compromise gives rise to a new agreement between the parties and constitutes a fresh cause of action superseding the cause of action sued on. In the National Court Judgment of Her Honour Madam Justice Davani in Vailala Purari Investment Limited & Others -v- Papua New Guinea Forest Authority and Frontier Holdings (2004) N2594, the Plaintiffs filed an application for leave to apply for judicial review to review the decision of the First and Second Defendants to grant an extension of the Timber Permit to the Third Defendant to harvest timber in the Vailala area of Gulf Province.

25. The Plaintiffs however, in the course of the application for judicial review signed a Deed of Release to settle the dispute with the Third Defendant which included the discontinuance of the application for judicial review against the Defendants. Pursuant to the Deed of Release, the Plaintiffs filed a Notice of Discontinuance.

26. Then, the Incorporated Land Groups (ILGs) and certain persons decided to apply to join in the application for judicial review and filed an application to join which come before Her Honour for hearing. It was at the hearing of that application when it was brought to Her Honour’s attention by counsel for the Third Defendant that the Plaintiffs had filed a Notice of Discontinuance earlier on. Her Honour subsequently discovered that the Notice of Discontinuance was filed after the Plaintiffs and the Third Defendant had signed a Deed of Release to settle their dispute.

27. In considering whether or not the Notice of Discontinuance concluded the application for judicial review, Her Honour considered that the Notice of Discontinuance was based on a settlement reached between the parties and a Deed of Release and Settlement was reached to that effect. This is what Her Honour said on pages 12 and 13 of the Judgment which I consider relevant and respectfully adopt here to emphasis the point:

"According to Halsburys fourth edition; vol.137 at par. 391, the effect of a settlement or compromise is that: where the parties settle or compromise pending proceedings, whether before, at or during trial, the settlement or comprise constitutes a new and independent agreement between them made for good consideration. Its effects are:

(1) to put an end to the proceedings, for they are thereby spent and exhausted;

(2) to preclude the parties from taking further steps in reaction except where they have provided for liberty to apply to enforce the agreed terms; and

an agreement for a compromise maybe enforced or set aside on the same grounds and in the same way as any other contract.

Having said that, can the plaintiffs make such an application in these same proceedings?

No, the plaintiff must challenge the validity of the Deed in fresh proceedings. I say this relying on the various cases cited above and the National Capital District Commissions - v- Yama Security Services Pty Ltd SC 707 of 2002, Supreme Court judgment handed down on 6 June 2003. The bench comprised Injia DCJ, Davani and Mogish JJ deliberated on an appeal from the National Court involving a judgment of the National Court of 27 March 2002, where the National Court entered summary judgment and awarded K8.5 million to the respondent relying on a Deed of Release executed by the appellants and the respondent. The court heard the appeal and ruled on the threshold issue that because a settlement gives rise to a fresh cause of action, that the party seeking to enforce payment as agreed under the deed, had to file a fresh action. The matter was referred back to the National Court.

I set out the cases cited above to illustrate the legal position, that the matter is completely settled when a Deed of Release is executed". (emphasis in bold is mine).

28. Her Honour also in her Judgment referred to and relied upon the English case of Green -v- Rozen and Others[1955]2 All ER 797. There, the Plaintiff brought an action to recover £500.00, money lent by him to the Defendants jointly, and a further sum of £50.00 alleged to be due from the first Defendant as consideration for making the loan to the three Defendants jointly. When the action came before the Court, Counsel informed the Court that the action had been settled and what the terms of settlement were. The agreed terms on the back of Counsel’s briefs, were that Defendants were to pay the Plaintiffs a sum of £450.00 by instalments on the dates stated and other terms.

29. The Defendants failed to pay the last instalment. The Plaintiffs then made an application on the original action asking for judgment for the amount of the final instalment and an order for costs. Slade .J refused the application "...because the court having made no order in the action, the agreement compromising the action between the parties completely superseded the original cause of action and the court had no further jurisdiction in respect of that cause of action."

The Court held further there that "...In my judgment, therefore, the Plaintiff’s remedy in this case to enforce the sum of £83 6s 8d., plus taxed costs which the defendants agreed to be paid, must be by action on the new agreement. I am sorry to have to come to that conclusion, because it may mean starting a new action, under R.S.C., Ord. 14, but, in my judgment, I have no jurisdiction - this is not a matter of discretion - to give the Plaintiff the relief which she seeks..."

30. The other local case in which Her Honour referred to was the case of Caltex (Overseas) Limited -v- Douglas Charles Dent [1978] PNGLR 411. In that case, the Plaintiff brought an action to recover K1,434.00 from the Defendant. After entry for trial, the matter was settled out of court on the basis that the Plaintiff accept the sum of K838.84 in satisfaction of its claim, plus costs. The sum of K838.84 having been paid, and no agreement having been reached as to costs, the Plaintiff made application to the Court for an order "that judgment be entered for the Plaintiff in the sum of K838.84 and costs".

Saldanha .J held that "the agreement compromising the action had superseded the original cause of action, and there being no provision in the Rules of Court for judgment to be entered in the particular circumstances, the court had no jurisdiction to make an order and the application should be dismissed".

31. I have reached the conclusion that the Plaintiff must commence a fresh Court action to seek enforcement of the Deed. Otherwise, the present application is an abuse of process and incompetent.

32. This is so because the Plaintiff has not moved his application pursuant to any provision of the National Court Rules or has referred me to the relevant rule(s) of the National Court Rules by which the Plaintiff is basing his application. Nonetheless I consider that the only relevant rule is the summary judgment provision pursuant to Order 12, rule 38 of the National Court Rules. It is an application for summary judgment under the guise of an application to enforce a Deed.

33. This present case is identical to what the Supreme Court discovered in the National Capital District Commission -v- Yama Security Services Pty Ltd (2003) SC 707 where one of the Supreme Court Judges, Her Honour Madam Justice Davani pointed out this misapprehension of the summary procedure on pages 28 and 29:

"It seems to me that the orders of the court made on 27.3.02 are similar to orders made in an application for summary judgment under O. 12 R. 38 of the National Court Rules. As His Honour said at p. 5 of his judgment, "The challenge is based on the requirement for summary judgment under O. 12 R. 38 of the National court Rules ...". And at pg 6 he said; "the Plaintiff is entitled to be paid under the agreement and it is unjust to now raise s. 61 Defence to deny the Plaintiff. How was the contract signed to start with? In all the submissions before me, no other defence has been raised. For example, whether the Plaintiff would not be entitled to claim an unperformed part of the Contract. Neither did the Defendant allege any fraud. If it did, it had to strictly plead so. I am satisfied therefore that the Defendant has no Defence in either case." (my stress).

In my view, the trial judge erred here in that the matter before him was for assessment of damages, judgment on liability having already been entered. His reference to there being "...no Defence in either case" is untenable.

Applications for summary judgment or any applications for any relief relying on the National Court Rules, are peculiar in themselves. (see Lindsay Lailai, Acting Managing Director and Anor -v- Ace Guard Dog Security Services Limited SCA No. 85 of 2001 and Lindsay Lailai, Acting Managing Director & Anor -v- Yama Security Services Limited SCA No. 87 of 2001 unnumbered judgment of Injia, Davani and Mogish .JJ, dated 6.5.03).

- that the plaintiff or some responsible person gives evidence either verbally or by affidavit that in his belief there is no defence.

(on principles of summary judgment, see Kumul Builders Pty Ltd -v- Post and Telecommunication Corporation [1991] PNGLR 299; Bruce Tsang -v- Credit Corporation (PNG) Ltd (1993) PNGLR 112; Hornibrook NGI Pty Ltd -v- Lihir Management Company Pty Ltd and West Process Pty Ltd (Administrator Appointed) N1735 dated 18.6.98).

Assuming the trial judge entered summary judgment, I find that the above legal principles and requirements were not met and satisfied. Therefore, summary judgment would not have been appropriate".

34. I adopt the above principles on Summary Judgment and apply them to the present case and the first question I ask is; is there evidence of the facts proving the essential elements of the claim.

35. Here, I find that there is evidence of facts proving the essential elements of the claim, which are first the initial offer of K90,000.00 by way of the letter to the Defendant dated 11 May 2006, secondly the Defendant’s counter offer of K80,000.00 in its letter to the Plaintiff dated 23 April 2007, thirdly, the Plaintiff’s acceptance of the counter offer of K80,000.00 in the letter to the Defendant dated 9 May 2007 and the subsequent signing of the Deed on 1 June 2007, hence a contract to settle the Plaintiff’s claim for damages.

36. The second question is whether the Plaintiff or some other responsible person has given evidence either verbally or by affidavit that in his or her belief there is no defence. Here, I find that the Plaintiff has not satisfied this test because there is also evidence disputing the existence or otherwise of such a contract.

37. Briefly and without repeating myself, the Defendant argued that there is no contract by way of the Deed because it did not agree to settle the Plaintiff’s claim at K80,000.00. It only agreed to settle it at K8,000.00. In the alternative, if the Court finds that there is a contract between the parties to settle the Plaintiff’s claim for damages, then it argues that the contract was entered into by mistake.

38. To my mind, there is serious conflict on questions of fact and law raised by the Defendant. The three issues that immediately come to mind are first, there is the question of whether or not the parties have entered into a contract by way of a Deed to settle the Plaintiff’s claim for damages out of Court. Secondly, if so, whether or not the contract was entered into by mistake. If mistake is proven, thirdly whether the contract can be rescinded or set aside on the grounds of mistake.

39. It is the law that the Plaintiff will not be entitled to Summary Judgment if there is serious conflict on questions of fact or law. I find that the Plaintiff’s application is an application for summary judgment under the guise of an application to enforce a deed. And so I further find that that is an abuse of process. I find that there is serious conflict on questions of fact and law in the present case and in the exercise of the Court’s discretion I refuse the application for Summary Judgment pursuant to Order 12 rule 38 of the National Court Rules.

40. In conclusion, it may well be the case where there is a contract by way of a Deed in existence between the parties to settle the claim for personal injuries out of Court and it may also be the case where the Deed was entered into by mistake especially for the amount of K80,000.00 as opposed to K8,000.00 when compared to the award of damages in the past cases of Salio Tabanto (supra) and Ambua Kulange (supra). For an example of a Deed entered into by mistake, see the National Court Judgment of Papua New Guinea Forest Authority -v- Concord Pacific Limited and the State (2003) N2465 by His Honour Mr Justice Kandakasi.

41. Be that as it may, I am not satisfied that the Plaintiff’s application for judgment is properly before the Court. That is why I said at the beginning of this Judgment that I see no where in the Notice of Motion the Plaintiff’s reference to the relevant provisions of the National Court Rules as the basis of bringing this application. It is misconceived and I must refuse the Plaintiff’s application for judgment pursuant to the Deed of Release.

42. For all these reasons, I dismiss the Plaintiff’s application for judgment. As I have dismissed the Plaintiff’s application for judgment, the final question is what becomes of the present Court proceeding? Should it proceed to full trial or should it be dismissed.

43. I am of the view that the present proceeding must also be dismissed because it has now come to light that there is a Deed entered between the parties. And so, adopting the words of Justice Slade in the case of Green (supra), I must say that; I am sorry to have to come to that conclusion, because it may mean starting a new action, under R.S.C., Ord. 14, but, in my judgment, I have no jurisdiction - this is not a matter of discretion - to give the Plaintiff the relief which she seeks...".

44. In the circumstances, I find that I have no jurisdiction to further determine this matter. It must stop here and the Plaintiff is at liberty to issue fresh Court proceeding to enforce the Deed. Accordingly, I must dismiss the entire Court proceeding as well and I so order.

1. The Plaintiff’s Notice of Motion filed on 5 March 2008 is dismissed forthwith.

3. The Plaintiff is at liberty to file a fresh Court proceeding based on the Deed.

4. The Plaintiff shall pay the Defendant’s cost of the application and the entire Court proceeding to be taxed if not agreed.

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

Paulus Dowa Lawyers: Lawyers for the Plaintiff
Warner Shand Lawyer: .Lawyers for the Defendant

National Court of Papua New Guinea

Kawage v Motor Vehicle Insurance Trust Ltd [2008] PGNC 75; N3354 (29 April 2008)