N9843

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 69 OF 2020 (COMM)

BETWEEN:
THE CATHOLIC MISSION - VANIMO
Plaintiff

V

PAUL PARAKA
Defendant

Waigani: Anis J
2022: 19th & 30th August

NOTICE OF MOTION – Application to set-aside default judgment – Order 12 Rules 8(1)(2)(3)(4) & (5) and Rule 35 of the National Court Rules – main reason – decision was irregularly entered thus ex-jebito justitiae – consideration – whether there was sufficient evidence on the balance of probabilities to allege that the defendant was not duly notified of the return date when judgment was entered in default ex-parte – regardless, whether there was evidence of service or notification of the hearing dates of the 2 notices of motion disclosed prior to the hearings

Cases Cited:

Arman Larmer Surveys Ltd v. Chan Consolidated Ltd (2013) SC1253
Arman Larmer Surveys Ltd v. Chan Consolidated Ltd (2014) SC1609
Makop v. Billy Parako (2004) N2593

Counsel:

P Pip, for the Plaintiff
P Paraka, in Person
RULING

30th August, 2022

1.	ANIS J:  Two notices of motion returned before me on 19 August 2022 for hearing.  The first was filed by the plaintiff (on 6 June 2022) seeking orders to garnishee the account of the defendant held by Kina Bank Ltd.  The application is pending hearing re confirmation of the issued garnishee nisi orders.  The notice of motion by the defendant (filed on 1 August 2022) seeks to set aside default judgment and for leave to file defence out of time.

2.	By consent of the parties, the defendant’s Amended Notice of Motion (NoM) was moved first with the latter to await its outcome.  I heard the matter on 19 August 2022 and reserved on it thereafter.  

3.	This is my ruling.

BACKGROUND

4.	The main claim was debt recovery, and it was premised on an oral month to month lease agreement that was entered between the plaintiff and the defendant between 2014, 2015 and beyond to 2020.  The plaintiff’s property is called Moala Rumana.  The defendant rented apartment no 6 of the property and had lived there for the stated period.

5.	The rental fee per month charged was K11,916.68.  By 2015, he owed the plaintiff rental arears that totalled K119,116.80.  By 2019, the rental arears increased to K691,167.44.  The plaintiff filed this proceeding on 27 January 2020.  It sought this outstanding rental sum plus interest, costs, and orders for the defendant to vacate the apartment.

6.	On 18 June 2021, upon application by the plaintiff, I entered default judgment in its favour.  The plaintiff’s application, which was for default judgment, was made and granted ex-parte.  In so doing, I made the following orders,

1.	The Plaintiff is granted leave to make its application filed on 21 May 2021.

2.	The Defendant’s Notice of Motion filed 2 November 2020 is dismissed for want of prosecution, and failure to appear at the time and date set by the Court.

3.	Pursuant to Order 12 Rule 25(a)(b) and 27 of the National Court Rules judgment is entered against the Defendant for rental owing, in the sum of K691,167.44 for rental owing up to and including December 2019, and additionally for K11,916.56 for each further month the Defendant occupies the Plaintiff’s property until the judgment is settled.

4.	An order that the Defendant pay interest to the Plaintiff on the judgment pursuant to the Judicial Proceedings (Interest on Debt and Damages) Act 2015.

5.	Costs of and incident to this proceeding shall be paid by the Defendant.

7.	The defendant’s NoM challenges this order.

EVIDENCE

8.	The defendant relies on 2 affidavits in support.  The first affidavit is his own affidavit filed on 16 June 2022 (Document No. 67 in the Court file).  The second affidavit is that of one James Haro also filed on 16 June 2022 (Document No. 68 in the Court file).  

9.	The plaintiff, on the other hand, relies on the affidavit of Janet Sapul filed on 16 June 2021 (Document No. 35 in the Court file).

NOTICE OF MOTION

10.	The NoM is premised on Order 12 Rule 8(1), (2), (3), (4), (5) and Rule 35 of the NCR.  There is no contest to these jurisdictional bases or grounds.  Regardless, I also find them to be in order, and so, I will move on from there.

ISSUES

11.	The main issue is this, whether the default judgment was irregularly entered because the defendant was not duly served or notified of the date of hearing of the plaintiff’s default judgment application which had been ordered and listed for hearing at 9:30am on 18 June 2021.

IRREGULARITY

12.	The case law is settled on this requirement, that is, that if a judgment is irregularly entered, then it ought to or must be set aside ex debito justitiae.  Cases: Makop v. Billy Parako (2004) N2593, Arman Larmer Surveys Ltd v. Chan Consolidated Ltd (2013) SC1253 and Arman Larmer Surveys Ltd v. Chan Consolidated Ltd (2014) SC1609.  

13.	Irregularities can include want of service or notifying on the other party before a hearing date of a matter(s) such as an interlocutory application or an application for default judgment.  

CONSIDERATION

14.	Here, the defendant asserts that he was never informed, firstly, of the return date of the plaintiff’s default judgment application which was scheduled to return for hearing at 9:30am on 11 June 2021.  I informed the defendant at the hearing that the said fact appeared irrelevant to the question of irregularity as the Court did not hear the default judgment application on the said date.  Mr Paraka appeared to concede to that.  In any event, I find that fact and argument, baseless to the defendant’s main argument.

15.	Mr Paraka secondly claims that he was never served or notified of the orders that were made by the Court on 11 June 2021.  This submission is at the heart of the defendant’s claim, so to begin, I will set out the Court’s order that was made on 11 June 2021.  The order reads in part:

1.	The Plaintiff’s Notice of Motion filed on 21 May 2020 and the Defendant’s Notice of Motion filed on 2 November 2020 are set down for hearing at 9:30am on Friday 18 June 2021.  

2.	The Plaintiff to immediately notify the Defendant of the Court’s order and file an Affidavit in that regard by or before 18 June 2021.

16.	In response to this, counsel for the plaintiff referred this Court to its evidence which is the affidavit of Ms Sapul.  Counsel submits that the said affidavit was filed in compliance with term 2 of the Court’s Order of 11 June 2021.  When I peruse Ms Sapul’s affidavit, she deposes that on 11 June 2021, she emailed Mr Paraka through his email address paul.paraka@gmail.com where she attached a true copy of their firm’s letter to Mr Paraka.  She said she did not receive any feedback to say that the email had bounced or was not received by the recipient.  These are stated at paras 3, 4 and 5, of her affidavit.

17.	I note that the letter by the plaintiff’s firm, which is attached as annexure B to Ms Sapul’s affidavit, stated, amongst others, what the Court had ordered on 11 June 2021 which included the hearing date and time of the 2 applications (which were scheduled for hearing at 9:30am on Friday 18 June 2021).

18.	Mr Paraka did not file any affidavit or evidence to counter this evidence of the plaintiff.  Mr Paraka in response submitted that he did not see Ms Sapul’s affidavit and that he was seeing it for the first time, that is, after a copy was showed to him by the plaintiff’s counsel.  

19.	Mr Paraka made submissions over the bar table in response to Ms Sapul’s affidavit.  Firstly, he submits no such document was filed when Mr Haro conducted his file search on the matter.  Secondly, he maintains that contrary to the evidence, he never received any notification that the applications will be heard at 9:30am on 18th of June 2021.  He also requested an adjournment to allow him time to file his response to the affidavit of Ms Sapul.  In regard to the request for adjournment, I rejected that on the basis that the application has already been made and that Mr Paraka was making his closing submissions to the reply of the plaintiff.  I also indicated to Mr Paraka that term 2 of the Court Order of 11 June 2021 should have alerted him to check and come prepared in regard to the question of whether evidence had been filed by the plaintiff in compliance with term 2 of the Court’s Order of 11 June 2021, and that Mr Paraka should have put down what he was stating over the bar table into an affidavit to rely on.

20.	In the end, what I have is this unchallenged evidence of the plaintiff that the defendant had been duly notified of the hearing of 18 June 2021, but had failed to turn up in Court, and the matter was dealt with in his absence, that is, after the Court was satisfied that term 2 of its orders of 11 June 2021 had been complied with.

21.	The defendant, as the mover of the NoM, has the burden of proof, on the balance of probabilities, to make out his argument.  The main issue concerns whether judgment had been irregularity entered by the Court on 18 June 2021.  The defendant, in my view, has not filed any relevant evidence to establish his claim that will permit the burden of proof to shift to the plaintiff to disprove.  I will therefore dismiss the NoM as baseless.

22.	Even if I may be wrong, and the burden of proof shifts to the plaintiff, I note that there is clear evidence provided by the plaintiff that it had notified the defendant of the hearing date to its default judgment application.  Ms Sapul’s evidence shows that the defendant had been duly notified through his email address on 11 June 2021, of the Court’s Order of 11 June 2021.  The defendant was notified on the same day that orders were made.  And Ms Sapul’s evidence remains unchallenged, that is, from the evidence filed by the defendant.

SUMMARY

23.	In summary, the defendant’s NoM will fail.  I will dismiss it.  I will also now hear the plaintiff’s pending application for garnishee absolute.

COST

24.	An order for cost is discretionary.  I will order cost to follow the event, that is, on a party/party basis to be taxed if not agreed.

ORDERS OF THE COURT

25.	I make the following orders:

1.	The defendant’s amended notice of motion filed on 1 August 2022 is dismissed.

2.	The defendant shall pay the plaintiff’s cost of the application on a party/party basis which may be taxed if not agreed.

3.	Time for entry of these orders is abridged to the date and time of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly
________________________________________________________________
Fiocco & Nutley: Lawyers for the Plaintiff
Paul Paraka: In person