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Otis Elevator Co (PNG) Ltd v Melanesian Trustee Services Ltd [2021] PGNC 123; N8892 (30 June 2021)

N8892

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (COMM) NO 118 OF 2016

BETWEEN:
OTIS ELEVATOR COMPANY (PNG) LIMITED
Plaintiff

V

MELANESIAN TRUSTEE SERVICES LIMITED
Defendant

Waigani: Anis J
2021: 25^th & 30^th June

NOTICE OF MOTION – Application to set aside ex-parte court order that summarily dismissed the proceeding – Order 12 Rule 8(1), (2)(b) and 3(a) of the National Court Rules and the inherent power of the National Court – s, 155(4) of the Constitution – consideration – exercise of discretion

Cases Cited:

Makop v. Billy Parako (2004) N2593

Counsel:

K Pato, for the Plaintiff
J. Sirigoi, for the Defendant

RULING

30^th June, 2021

1. ANIS J: The proceeding was summarily dismissed ex parte by His Honour Justice Hartshorn on 21 November 2020. The plaintiff applied to set aside the said ex parte order on 25 June 2021. The hearing was not contested in the sense that the defendant did not oppose or consent to the application. I reserved my ruling to a date to be advised.

2. Parties have been notified of today’s hearing so I will give my ruling.

BACKGROUND

3. The plaintiff’s claim was to recover debts that had been owing, according to the plaintiff, under a contract for service of the lifts or elevators at the Pacific Place Building, at downtown, Port Moresby, NCD. Based on the pleadings, a service or maintenance contract was signed on 3 December 2003 (service contract). The plaintiff claimed the defendant was a party to the service contract. The pleadings stated that on 26 February 2014, the defendant terminated the service contract.

4. The plaintiff accepted termination of the contract but claimed it had outstanding invoices for work that had been incurred or performed before the termination date. It pleaded a total of 47 invoices or so in its statement of claim, and claimed a total sum of K291,041.48.

5. The defendant filed its defence on 18 April 2016. In summary, the defendant, except for 4 stated invoices in its defence which it had indirectly admitted, denied that the plaintiff was entitled to the full sum. It also stated in its defence, amongst others, that it had resigned as the fund manager of Pacific Balance Fund (PBF), on or about 10 June 2014, and as such, the plaintiff should forward the invoices to the new manager to settle.

6. On 21 November 2020, the matter was listed together with other matters for summary determination, which was on a Saturday. None of the parties in the proceeding appeared and the matter was summarily dismissed for want of prosecution.

NOTICE OF MOTION

7. The notice of motion was filed on 30 April 2021. The plaintiff seeks orders to essentially reinstate this proceeding. The application is not opposed and is supported by the plaintiff’s own evidence. The main affidavits are those sworn and filed by Mr Pato. His first affidavit was filed on 30 April 2021 followed by his supplementary affidavit, which was filed on 10 June 2021.

ISSUES

8. The first issue is whether the ex-parte order of 21 November 2020 was regularly entered. If so, then I will move on to consider (i), whether the application was made promptly, (ii), whether there were valid reasons why the plaintiff did not appear at the time when the matter was summarily dismissed, and (iii), whether the plaintiff has a meritorious claim that the matter should be reinstated and progressed to trial.

DISCRETION

9. The Court’s power to set-aside an exparte order is of course discretionary, but having said that, it should be exercised upon considering or be based upon, proper principles of law and the circumstances (facts) of the matter in question.

IRREGULARITY

10. The main contention under this sub-heading by the plaintiff is this. It claims that it never received the required notice under Order 10 Rule 9A(15)(3)(a) of the National Court Rules (NCR), that is, notice of intention by the Registrar to list or listing of the matter down for summary determination and of the requirement to appear in Court.

11. Sub-rule (3)(a) reads:

a. A notice in the form in Schedule “D” is issued by the Registrar which gives notice to the parties of his intention to refer the matter to the Judge for summary determination on the ground(s) stated in the letter. The letter will also give the parties thirty (30) days to respond and fix a return date and time for the matter to come before the judge. In appropriate cases, the Registrar may publish the notice letter in the media.

12. When I look at the evidence, the said letter is actually attached as annexure F to Mr Pato’s affidavit of 30 April 2021. The letter by the Registrar is dated 9 October 2020 and it is addressed to Posman Kua Aisi Lawyers. It is also stated as cced (carbon copied) to Fairfax Legal, the then lawyers for the defendant. In Mr Pato’s evidence, he however denies that his firm had received the letter. Mr Pato also gives detail accounts of his searches for the letter and accounts of what had transpired immediately after he was made aware of the ex parte order of 21 November 2020.

13. I must say that I am not totally convinced say beyond 80%, that the plaintiff’s evidence is sufficient. For example, the Registrar has not been put on notice and he does not have the evidence to put before this Court, to defend his action in listing the matter down for summary determination under Order 10 Rule 9A(15)(3) of the NCR. It is perhaps a grey area where rules may have to be formulated to address this type of situation.

14, But as it is, I need not be satisfied beyond reasonable doubt, but rather, on a balance of probabilities. In this case, I only have the evidence of the plaintiff which remains unopposed. I am therefore satisfied that for whatever unexplained reasons, that the letter by the Registrar which is in evidence was never sent out to the plaintiff as there is proof in the plaintiff’s evidence that such did not occur. The plaintiff’s lawyers have also adduced evidence to say that the letter did not arrive as there was no trace of it on their records that they keep at the firm. I accept this evidence of the plaintiff.

15. In so doing, it can only mean therefore that the ex parte order of 21 November 2020 was irregularly entered. Manuhu AJ, as he then was, in Makop v. Billy Parako (2004) N2593, in my view, simplifies the distinction between irregularly entered ex parte order and regularly entered ex parte order, when his Honour stated:

In applications like this, the initial inquiry is whether the ex parte order was made regularly or not. Where an ex parte order has been made irregularly, the only just remedy is to rectify the irregularity by setting aside the ex parte order. Non-compliance with an important procedural requirement under the National Court Rules is usually considered as an irregularity, which generally results in an ex parte order being set aside. On the other hand, where an ex parte order has been made regularly or in compliance with relevant procedural requirements, setting it aside is dependent on what is just and fair in all the relevant circumstances; and, what is just and fair is dependent on the reasons for the non-appearance which permitted the matter to proceed ex parte; the merits of the applicant’s case; and, the promptness of the application to set aside ex parte order.

SUMMARY

16. So, with the plaintiff’s evidence, I am satisfied that there was non-compliance with Order 10 Rule 9A(15)(3)(a) of the NCR by the Registrar in that no warning or notice of the matter being listed for summary determination, had been issued to the parties before the Court summarily dismissed the proceeding on 21 November 2020. As such, I will exercise my discretionary power to set aside the Court Order of 21 November 2020 and reinstate the proceeding back to the Commercial Court track list.

COST

17. An award of cost of this nature or type of application is discretionary. Because the matter had been listed for summary determination by the Registrar under his powers, which had led to its dismissal but now re-instatement upon or after the plaintiff’s present notice of motion, I will order each party to bear their own cost of the application.

ORDERS OF THE COURT

18. I make the following orders.

1. The ex parte orders of the Court made on 21 November 2020 is set aside and the proceeding is re-instated forthwith.
   
2. The matter shall be listed for Directions Hearing before the Commercial Court Track on an appointed date and time to be set.
   
3. Each party shall bear their own cost of this application.
   
4. Time for entry of these orders is abridged to the date and time of settlement by the Registrar which shall take place forthwith.
   

The Court orders accordingly
________________________________________________________________
Posman Kua Aisi: Lawyers for the Plaintiff
Albatross Law: Lawyers for the Defendant