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Yes v Kapal [2018] PGNC 323; N7415 (17 August 2018)

N7415

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
WS No. 1646 of 2016

KAULA YES

V

PETER KAPAL
Kimbe: Miviri AJ
2018: 10^th August

PRACTISE & PROCEEDURE – Notice of Motion – Application for Default Judgment Order 12 r 25 NCR – in proper form – due service – default established –discretionary – facts not in favour of exercising – motion denied – Default Judgment refused.

Cases cited:

Bala Kitipa v Vincent Auali, Supply and Tenders Board of Western Highlands Provincial Government and Others (1998) N1773,
Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001
Giru v Muta [2005] PGNC 83;
Kunkene v Rangsu [1999] PGNC 80; N1917
Mininga v Independent State of Papua New Guinea [1996] PGNC 8; N1458
Tiaga Bomson v Kerry Hart (2003) N2428
Tima Korohan [2006] PGNC 21; N3045.

Counsel:

B Takua, for Plaintiffs

Defendant in Person

RULING

17^th August, 2018

1. MIVIRI, AJ: The Plaintiff moves by way of Notice of Motion for Default Judgement to be entered against the Defendant. He bases so upon Order 12 Rule 25 of the National Court Rules, “the rules.” The motion also seeks costs and any other orders pursuant.
   
2. Order 12 is headed Judgements and Orders and Rule 25 default is in this terms: “A defendant shall be in default for the purpose of this division-
   
   • (a) Where the originating process bears a note under order 4 rule 9, and the time for him to comply has expired but he has not given the notice; or
   • (b) Where he is required to file a defence and the time for him to file his defence has expired but he has not filed his defence; or
   • (c) Where he is required under Order 8 Rule 24 to verify his defence and the time for him to verify his defence in accordance with the rule has expired but he has not so verified his defence.”
     
3. The Plaintiff has filed this Writ of Summons, “the writ” since the 26^th November, 2016 for K16, 900.00 outstanding moneys for the purchase of a Public Motor Vehicle to transport persons and goods, Interest and Costs of the proceedings.
   
4. The Writ bears the note under Order 4 Rule 9 that the Defendant will suffer judgment or an order unless the prescribed form of Notice of Intention to Defend is filed in the registry within 30 days after service of the Writ. The Writ was served 13^th February, 2017 by John Giru of NBPOL, Haella Plantations on the Defendant and his Affidavit dated the 16^th February, 2017 filed the 18^th February, 2017 of that fact. Attached to it annexure “A” is the Acknowledgement of Service signed by the Defendant accepting service of the Writ. The date is 13^th February 2017, when it was served. On 27^th February, 2017 Notice of Intention to Defend was filed by the Defendant. Which should have in the ordinary course of events seen filing of Defence by the 29^th March, 2017 the 44 days expiring then without. That did not happen nor did he seek leave to file Defence out of time. In law and by the rules there is no defence on file for consideration in the matter.
   
5. The Notice of Motion is supported by Affidavit of Kaula Yes filed 07^th May, 2018 which attaches as annexure; “A” fore warning letter dated the 17^th October, 2017 subjected Fore warning to Peter Kaipel (WS 1646/2016). It advices that search at the National Court Registry show only a Notice of Intention to Defend but no Defence has been filed. And warning is made of filing a Motion for Default should there be failure in so filing. Excerpt of the National Court file notation is also attached as annexure “B”
   
6. What is sought is the recovery of K16, 900.00 moneys that were used by the Defendant as equity to secure a loan from the ANZ bank to purchase a truck from Japan. Which was kept by the Defendant on the promise that he would repay the Plaintiff his money outstanding since. Demand for it has been without leading to this proceeding.
   
7. These facts to my mind established that the Default Notice of Motion was in proper form in accordance with the Rules of Court. That it had been duly served upon the defendant. And there is default because there is no intent to defend nor is there defence filed within the time under the rules, Order 12 Rule 32. And there is proof of the service of the Writ of Summons upon the Defendant with the note under Order 4 Rule 9 that the Defendant will suffer judgment or an order on the Writ, Order 12 Rule 34. The time that has been inscribed on the Writ has run without the defendant living up to what the rules require of him. These satisfy and Default Judgement can be awarded: Tima Korohan [2006] PGNC 21; N3045; Giru v Muta [2005] PGNC 83; (12^th August 2005).
   
8. Default Judgement is not of right but discretionary by read of the Rules Order 12 Rule 32. And a number of cases demonstrate this: Bala Kitipa v Vincent Auali, Supply and Tenders Board of Western Highlands Provincial Government and Others (1998) N1773, where fraud and deceit came out and the interests of justice required that the matter go to trial to prove by evidence application for Default Judgement was refused basing on Kunkene v Rangsu [1999] PGNC 80; N1917 (18^th September 1999). Default Judgment was refused because the Defence though late when filed was meritous and the matter was discretionary to go full trial. In Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001 the statement of claim amounted to abuse of process and the motion for Default Judgement was refused: In Tiaga Bomson v Kerry Hart (2003) N2428 defence was filed outside time but had merit and so application for Default Judgement was refused with costs.
   
9. Here a Supplementary Affidavit has been filed by the Plaintiff dated 14^th June, 2018. What is striking here is that the Plaintiff was to pay for equity to secure an ANZ Bank Loan. And in this regard a Supplementary Affidavit has also being filed by the Defendant Peter Kapal sworn 3^rd August, 2018 filed the same day. In it the Defendant contends the Plaintiff merely contributed K 5, 300 and not K17, 500.00. And that the Defendant has given the Plaintiff K4000 in cash. And that the Defendant has got a loan of K31, 444.91 to contribute towards the purchase of the vehicle. And this attached to his affidavit as annexure, “B1, B2, B3, B4, B5, & B6”. And the repayment of the loan is annexure, “C1, C2, C3, and C4”.
   
10. These annexure are independent confirmation that the Defendant has had to get a loan to finance the purchase of the vehicle in addition to the contributions from the Plaintiff. Certainly it is not K17, 500.00 because if that were the figure the Defendant would not have gone to the bank to get that loan which he has had to pay off from his salary evidenced by the deductions that ANZ bank has provided to show independently. Coupled with the fact that the invoice for the purchase of the vehicle is annexure, “A” to the Defendant’s Affidavit filed which is the sum of K25, 560.42. And annexure, “D1, D2,D3 and ,D4” is ANZ confirming repayment in full of that loan with interest altogether the sum of K45, 579.80 which would be making the Defendant pay double or triple if the Default Judgement was ordered.
    
11. The justice of the case is not for the grant of Default Judgement as moved in view of all these. It would not serve justice in view and therefore the motion for Default Judgment is refused. If the moneys owing to the Plaintiff have been settled by the Defendant than it will be an abuse of process for the Plaintiff to continue as he is of present. The Defendant is granted liberty to file to dispose. In the light of the independent material filed by the Defendant, Plaintiff is to reconsider whether he wants to pursue the action or consider otherwise.
    
12. As this is a Motion for Default Judgement the orders of the Court are that the Motion is refused. Order 12 r. 32 of the Rules gives the Court wide discretion to enter Default Judgement. Even when proof of due service of process on a Defendant and proof of the default is established by the Plaintiff/Applicant, the Court still has a discretion to refuse to enter default judgement in cases where for instance, the effect of the default judgement would prejudice the rights of other co-Defendants, or that the pleadings are so vague or do not disclose a reasonable course of action or that the default judgment cannot be sustained in law: Mininga v Independent State of Papua New Guinea [1996] PGNC 8; N1458 (24 May 1996).
    
13. Motion for Default Judgement is refused.
    
14. The cost will follow the event.
    

Orders Accordingly.
__________________________________________________________________

Public Solicitor: Lawyer for the Plaintiff/Applicant

Nil : Lawyer for the Defendant