N11631
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS  06 OF 2022

BETWEEN
FRANCIS MASIT
Plaintiff

AND:
DONNA UMA Credit Manager, Finance Corporation Limited
First Defendant

AND
FINANCE CORPORATION LIMITED
Second Defendant

MADANG: KANDAKASI DCJ
18, 20 NOVEMBER, 01 DECEMBER 2025

JUDGMENT & ORDERS – Court orders are serious and must be complied with – failing compliance adverse consequences can follow - frontloading timetabling orders – part of effective case management – has foundation in the rules of Court – orders for parties to explore settlement through direct negotiations – negotiations to be based on relevant facts and the law – purpose of – allow for merit base settlement negotiations – plaintiff failing – consequence – orders for statement of agreed and disputed facts and issues for resolution – Statement  to contain only facts and not pleadings, arguments, opinions submissions or the law  – purpose of -    need to be complied with – plaintiffs to lead in compliances – plaintiff defaulting – need to provided reasonable explanation for failure by proper admissible affidavit evidence - failure to provide reasonable explanation – consequences – dismissal of proceeding – Order 10, r9A (15)(2) National Court Rules.

JUDGMENT & ORDERS – Self-executing or conditional orders – seriousness of – purpose and effect of - forewarning of consequence that could follow - prescribe condition occurring – need for judicial act – defaulting party to provide reasonable explanation – no reasonable explanation offered – open for perfecting conditional order – Order 10, r9A (15)(2) National Court Rules.

MORTGAGEE – Mortgagor mortgagee relationship – vehicle loan – default by mortgagor – repossession – sale by public tender – mortgagor failing to redeem or take steps to prevent sale - repossession and sale by public tender – mortgagor conceding to defaulting – no evidence supporting mortgagors claim – claim unlikely to succeed. 

Facts

The plaintiff defaulted in his repayment of loan advance by the Second Defendant (FCL) to purchase a vehicle.  After serving notice of default FCL repossessed the vehicle, advertised it for sale by tender and had it sold off to recover parts of the debt. The plaintiff claimed to have fully repaid the loan without producing evidence confirming that he did not take any meaningful step to either redeem his property or take other steps such as court action to prevent FCL from proceeding advertising for sale by tender and selling the vehicle. The Court in a detailed set of frontloading and timetabling orders required the parties to explore settlement through their direct negotiations based on the relevant facts and the law. Should they fail there, the Court also ordered the parties to come prepared to resolve the matter in Court or for the Court to refer the matter for resolution by mediation. Further, the parties were ordered to settle upon a statement of the relevant facts and issues for resolution in a tabular form stating only the bare facts to the exclusion of arguments, submissions, opinions or the law. The plaintiff was to take the lead in complying with these orders. He failed despite repeated adjournments and extension of the various timeframes. He also failed to provide any reasonable explanation for his failures. 

Held:

1.	The National Court has inherent power to control and enable a prompt resolution of proceedings before it and for which purpose it can issue frontloading and timetabling orders and directions. 

2.	The power to issue such orders, includes the power to issue what has been described as “self-executing or conditional orders” to ensure compliance of the orders and directions the Court issues.

3.	As conditional orders, self-executing or conditional orders require further judicial acts to consider if the conditions for the making of the “self-executing or conditional orders” have been met or not on the return of such orders.

4.	Plaintiffs have the primary duty to prosecute their cases with due diligence and that includes a duty to take the lead in compliance of frontloading and timetabling orders. 

5.	A party failing to comply with any timetabling order has the obligation to file and serve a proper affidavit disclosing:

(1)	he or she as taken all the relevant steps to comply fully with the orders but for say matters beyond his or her control which prevented a full compliance; and
(2)	reasonable explanations for his or her failure in compliance and that such failure was not intentional; and 
(3)	no prejudice was occasioned to opposing side.

6.	The element of prejudice is established by adducing evidence for example of all the witnesses in the case are readily available to be called as and when required, they are easily contactable and that their respective memories with cogency of their evidence are well intact and have not been distorted in any manner or form.

7.	Where noncompliance of an order is established or apparent on the face of the Court’s record, the onus is on the party against whom the orders or directions have been directed to provide a reasonable explanation in terms of 5 and 6 above. 

8.	Failing the provision of any reasonable explanation for any noncompliance of a court order attracts perfecting any self-executing or conditional order, if one exists or by an invocation of Order 10, r9A (15) (2) (c) of the National Court Rules for a dismissal of the proceedings or enter judgment for the plaintiff depending on who is in default.

9.	In the present case, the plaintiff failed to comply with the intend and purpose of the orders directing parties to enter settlement negotiations and settle upon a Statement of facts and issues for resolution despite repeated requests from the defendants, adjournments and extension of the various timeframes. He offered no reasonable explanation for his failures, and the Court ordered a dismissal of his claim. 

Cases cited
Tumbiako v. Kaiyo (2023) SC2493
Norr v. Ikamata (2005) SC815
Kapi v. Pacific Helicopters [2002] PNGLR 92
Motor Vehicles Insurance (PNG) Trust v. Salem [1991] PNGLR 305
Edward Kae v. Kimana Mondo (2020) N8681
Belden Norman Namah v. Hon. Rimbink Pato & Ors (2016) SC1497
Ekawi Tayanda v. Gigira Development Corporation Limited & Ors (2017) N6756
Luke Alfred Manase v. Don Pomb Polye & Anor (2016) N7977
Gahuku Traders Limited & Anor v. Yondu Coffee Producers Ltd & Anor (2018) N7396
Talibe Hegele v. Tony Kila & Andrew Elabe (2019) N8119
Onne Rageau v. Chaudoc Limited & Ors (2015) N5901
Thomas Tulin v. Toyota Tsusho (PNG) Ltd (2015) N5895
PNG Ports Corporation Ltd v. Charles Inni (2012) N4717
Kalang Advertising Ltd v. Kuppusamy (2008) SC924
Wasis v. Elias (2016) SC1485
Hon. Andrew Baing & The State v. PNG National Stevedores Pty Ltd (2000) SC627
Kalinoe v. Paul Paraka Lawyers (2014) SC1366
Pacific Services Network Ltd v. Koiari Wan Ltd (2024) SC2694
Lord & Company Ltd v. Inapero (2014) SC1624
National Information & Communications Technology Authority v. Tape (2025) N11129
General Accident Fire & Life v. Farm [1990] PNGLR 331
Manase v. Polye (2016) N7977
Golobadana No 35 Ltd v. Bank of South Pacific Ltd (2002 N2309
Ning’s Trading Pty Ltd v. ANZ Banking Group (PNG) Ltd (1998) N1700

Counsel
Mr. E. Ulach for the applicants/defendants
Mr. D.F. Wa’au for the respondent/plaintiff

FULL REASONS FOR DECISION 
(Edited version of decision delivered orally on 20 November 2025)

01 December 2025

1.	KANDAKASI DCJ: 	Following repeated failures by the Plaintiff to comply with various Court orders, the Defendants applied for a dismissal of the proceedings pursuant to Order 10, r9A (15)(2) (b) and (c) of the National Court Rules.  The Plaintiff opposed the application, arguing that full compliance of the various orders was rendered impossible by Defendants’ failure to respond to his settlement proposals.  He therefore argued against any dismissal of his claim. 

Issue for determination

2.	The issue for the Court to determine therefore, was whether the plaintiff's claim should be dismissed for his failure to fully comply with Court orders?

Decision in Brief

3.	On 20 November 2025, I delivered a brief oral decision on the issue and promised to provide the full reasons in a written judgment.  This is the promised judgment with the full reasons for the decision.

The orders and relevant facts

4.	 His Honour, Narokobi J., referred this matter to the ADR Track or List. On 08 November 2024, I issued the following orders:

“2.	Unless already done, the parties shall file and serve on each other affidavits of all evidence they respectively rely upon in support of their respective positions by 29 November 2024 for the Plaintiff and 20 December 2024 for the Defendants.
3.	Unless the affidavits already do so, the parties shall by 13 January 2025 give discovery to each other of the documents pleaded in their respective pleadings or they will be relying upon at the trial.
4.	The parties are then directed to have this matter settled and return to the Court with draft consent orders finalising the proceeding, unless they can demonstrate to the satisfaction of the Court that an issue of the type under Order 2, Rule 2 (3) (b) of the ADR Rules 2022 is presented in the case.
5.	For the purposes of settlement, the Plaintiff shall forward a Settlement Proposal that is based on the law and the facts to the Defendants by 29 November 2024 to which, the Defendants shall respond by 20 December 2024.
6.	The Plaintiffs shall also draft and forward to the Defendants, a Statement of the relevant Facts and Issues for Resolution 29 November 2024 to which the Defendant shall respond by 20 December 2024.
7.	The Statement shall be in the form of a table having three columns, with the first one containing paragraph numbers, the second stating only the relevant facts chronologically guided by the questions of who said, wrote or did what to whom, when, where, how and the consequences that followed but without stating any arguments, submissions, conclusions, opinions or the law, with the final column indicating where appropriate, any disputed fact with a statement of the alternative narrative and concluded with a statement of the issues presented for resolution immediately below the table.
8.	The parties shall meet in settlement conference by 27 January 2025, discuss the matters in dispute between them in the substantive matter, have them resolved and incorporate the terms into a draft consent order for the Court’s consideration and endorsement.
9.	Failing settlement, the parties shall settle the Statement and come ready to address the Court on the points in contention for the Court to consider and issue a binding opinion or refer the matter for resolution by mediation or a form of ADR process.
10.	For the purposes of any mediation order, the parties shall come with a draft consent order per Form 1C of the ADR Rules 2022 with agreements on the mediator to be appointed, all fees payable and the dates for the various steps to be taken including, the actual mediation conference dates which shall commence and conclude during the balance of the month of May and or early June 2025.
11.	Failing any compliance of these orders will result in the proceedings standing dismissed if the defaulting party is the Plaintiff but if the defaulting parties are the Defendants, there shall be judgment for the Plaintiff with the reliefs sought or such other reliefs the Court considers appropriate shall be granted.
12.	For the purposes of the last proceeding order, the parties shall file and serve by 07 February 2025, affidavits of evidence disclosing steps they have respectively taken to comply with each of these orders, disclose reasonable explanation for any noncompliance and show readiness to comply with the orders, should they be extended and commitment to comply without any further unnecessary delay. 
13.	The parties shall be at liberty to adjust the various timeframes in the foregoing orders so as enable compliance possible but well before the return date fixed in term 1 these orders.” 

5.	The Supreme Court has for example in its decision in Tumbiako v. Kaiyo SC2493 has described them as “timetabling orders” which are necessary for the better management of cases with the aim of expediting prompt disposal of cases at less cost to the parties and the Court.  These kinds of orders frontload the steps that need to be taken to enable the parties to have their matter resolved promptly through a four-step process.  Firstly, possible settlement of the matter through the direct negotiations of the parties. Secondly, should the parties fail to resolve their matter through the first step, then they are directed to attempt resolution through applied ADR or judicial dispute resolution (JDR) in Court when the matter next returns to the Court. Thirdly, if settlement is not reached through the third step, the matter would then be referred for possible resolution through mediation.  Finally, if no final or full resolution is reached through mediation, the matter would then return to the Court for resolution by the normal trial process. 

6.	The frontloading orders are designed to enable the parties to use these steps to get ready for trial at the same time, in case the matter does not get resolved by the first three steps. This is achieved through the orders for the settlement of a Statement of the relevant Facts and Issues for Resolution (Statement).  That Statement would first assist the parties and the mediator at mediation.  If the mediation does not result in any settlement, a mediation order if issued in either Form 1A or Form 1B in Schedule 2 of the ADR Rules 2022 would provide:

“If the mediation fails to resolve the matter fully, the parties shall together with the assistance of the mediator: 
(a) identify what meritorious legal issues, if any, are presented; 
(b) indicate why such issues are beyond resolution by this mediation; 
(c) confirm that such issues, after reasonable enquiry having been made by the parties and the mediator, are not issues which have already been determined by any Court in PNG; and 
(d) agree and settle the relevant facts upon which such issues are presented.”

7.	Through such an order, the parties would revisit the Statement, settle the facts and settle also the issues for resolution and settle the Statement for use at a trial of the matter.  The parties would then return to the Court for an expedited hearing based on the Statement. The trial could possibly be by submissions only or a short trial on the issues returning to the Court.

8.	On 13 February 2025, when the matter next return to the Court, the parties had failed to fully comply with the orders of 08 November 2024.  The orders were therefore extended to next return on 03 June 2025 on the following terms:

“2.	On indication by Counsel for the Defendant that the intent and purpose of terms 2 & 3 of the orders of 8 November 2024 have been met, the Court further extends the time for the parties to fully comply with terms 3 - 13 of those orders and reach a final position by the end of April 2025.
3.	Unless the parties come with draft consent orders finalising the preceding, they shall come ready to address the court in accordance with term 9 of the orders of 8 November 2024. 
4.	There will be no further adjournment, and the parties are thus required to fully comply with the orders previously made and as extended by these orders.
5.	If Counsel for the Plaintiff does not secure is practising certificate by 28 February 2025, the Plaintiff shall instruct a new lawyer by 14 March 2025 and that lawyer shall assist the Plaintiff to fully comply with all the foregoing orders and come ready to have the matter concluded in court on the next return date.”

9.	As can be seen from term 5 of the above orders, part of the reason for the Plaintiffs noncompliance, and therefore the basis for extending the previous orders had to do with the Plaintiff and his lawyer’s failures. The Plaintiff did not comply with the orders on account, amongst others, of his lawyer not securing his practising certificate in time.

10.	 When the matter next returned to Court on 19 June 2025, the orders were still not fully complied with.   The matter was yet again adjourned with the orders of 08 November 2024, further extended on the following terms:

“1.	The matter is adjourned to next return on 9 September 2025 at 9:30 am or soon thereafter with no case being made out by either of the parties for such an extension of time and adjournment.
2.	The Court orders penalties of K500.00 to be paid by the Plaintiff to the Consolidated Revenue Fund and produce a receipt of its payment on the next return date for wasting the court’s time and for the Defendants a sum of K1000.00 to be paid to the Consolidated Revenue for failing to respond to the proposals for settlement and failing to comply with the orders of the court.
3.	The orders of the Court that remains to be complied with are extended for the parties’ full compliance by no later than 30 July 2025.”

11.	The matter finally came before this Court on 18 November 2025, exactly 1 year 10 days after the frontloading and timetabling orders were first made.   There was still no full compliance of those orders even after the repeated adjournments and extension of the various dates for the various orders.  It is a well accepted position at law that, plaintiffs have the obligation or burden to prosecute their matter with due diligence. This means where frontloading timetabled orders were made, they have an obligation to take the lead in compliances. The question in that regard in the present case is, has the Plaintiff provided such leadership?  

12.	To answer that question it is necessary to consider the specific terms of the orders of 08 November 2028.  The relevant parts of the orders have been reproduced above at [8].  
 
13.	The table below indicates the relevant orders in the first column, a summary of the relevant orders in the second column and the summary of the position in compliance of each of the orders.
	Orders	Position on compliance	

2	Filing and serving of affidavits	Numerous affidavits filed by the parties but not clear which of them were pursuant to this order.  I will assume some of the affidavits were filed in complied of this order.	
3	Giving of discovery of documents pleaded and to be relied upon at trial 	No discovery as required was given.  The Defendants did file a notice for specific discovery and served it on the Plaintiff, but the plaintiff has not given discovery even under notice.	
4 &
5	Settlement proposal based on the relevant facts and the law on point to be was to communicated to the Defendants and for the Defendants to similarly respond.	One filed in Court by the Plaintiff on 10.03.2025, document No. 75, revised by document number 80 filed 16.04.2025. Not supported by facts and law and contrary to practice, not to disclose proposed terms of settlement to the court without any order or direction of the Court or the agreement of the parties.	
6 & 7	Statement of Agreed and Disputed Facts and Issues for Resolution in a table form with 3 columns with specific prescriptions for its content.	Not complied with. One incorporated into the settlement proposal document.  Requests by Defendants for the Plaintiff to redo the Statement in accordance with the orders not adhered to.	
8	Settlement conference to discuss points of contention in settlement proposals and or Statement. 	Not complied with. No settlement conference was called for by any of the parties.  Could not be complied with due to the problems attending terms 4 -7 of the orders.	
9	Parties to return with draft consent orders to finalise proceedings, or ready with submissions on points in contention and draft mediation orders for referral of matter to mediation.	Not complied with due to noncompliance of terms 4 – 7 of the orders.	
10 	Draft consent order for mediation.	Not complied with due to noncompliance of terms 4 – 7 of the orders.	
11 & 12	Forewarning of dismissal of proceedings or judgment depending on compliance of the orders and for parties to file affidavits. 	Plaintiff filed no affidavit. Only the Defendants have complied.	
13	Parties at liberty to adjust the timings.	Not complied with or no use made of this order due to noncompliance of terms 4 – 7 of the orders.	

14.	There is not much of an issue around the compliance of terms 2 & 3 of the orders. The issue of noncompliance commences from terms 4 – 12 of the orders.   Term 4 & 5 required an exploration of settlement by the parties’ direct negotiations.  The orders prescribed a timeframe with a specific requirement for the settlement proposals to be based on the relevant facts and the law on point.  This was necessary to ensure only claims and counterclaims in the settlement proposals were meritorious and remove any unmeritorious claims the parties may communicate to each other. Once each of the parties were able to propose settlement in those terms, the parties could appreciate each other’s positions better and make inform decisions to settle or not.  Additionally, these were going to be privileged communication between the parties until the issue of compliance of the orders or not or parties reaching a settlement or not, arose. 

15.	Examining the purported settlement proposal per the original and the revised one by the Plaintiff reveals, firstly, it breached the law on privileged communication on out of court settlement negotiations. This also went against the very wording of the order, which was to serve the proposal on the Defendants.  There was neither any mention, nor was there any requirement for the Plaintiff’s Counsel to file the document in Court. Secondly, and most importantly, the settlement proposal was to be based on the relevant facts and the law on point.  The proposal that was filed in Court was not supported by any facts and law on point.  If, however, this was the case, the duty was on the Plaintiff to demonstrate that in Court.  That, Counsel for the Plaintiff with respect, also failed to do. 

16.	There was an important purpose or objective behind requiring the proposal to be supported or to be based on the relevant facts and the law. That purpose was to eliminate any baseless claims and thus allow only meritorious claims to be the subject of negotiations for settlement. This was a necessary and a deliberate order aimed at excluding unmeritorious claims, given that, these days, many plaintiffs and in some cases through their lawyers, are making claims that have no foundation in law and or facts.  These sorts of claims often pluck exorbitant figures from the air.  Persons pursuing these kinds of claims, often refuse to reason and fail to meaningfully engage in settlement negotiations or if they do, they do not easily resile from their claims because they have convinced themselves that they are entitled to something big when they might not be so entitled. 

17.	After examining the original settlement proposal, the Defendants’ lawyers wrote to the Plaintiff’s lawyers on 27 March 2025.  A copy of that letter is annexure “H” to the affidavit of Mr Kent Pato, sworn on 01 September 2025 and filed on the same day, document No. 96 (the Pato affidavit). The letter relevantly states:

“We ... confirm receipt of your letter dated 26 March 2025 with what the plaintiff asserts is a settlement proposal.

We note from that proposal that the plaintiff seeks from Finance Corporation Limited (FCL) K6,763,877.00, being,  according to him, just compensation for a K153,805.00 loan it took from FCL and purchase the truck which truck was repossessed by FCL and sold to recover part of its losses when the plaintiff in breach of agreements that govern the loan defaulted with longer payments with 30 months. 

In relation to the settlement proposal we refer to the contents of our letter emailed to your firm yesterday, its copy enclosed, and kindly urge the plaintiff to, amongst others, enter into bona fide constructive settlement discussions by: 

(a)	Setting out in a revised proposal only the bare or naked facts that support the claims valued at K6,763,877. 00 under the four headings identified in the proposal and those facts must be sourced from the plaintiff’s affidavits filed and served;

(b)	Pointing out the law inclusive of case laws applying to those facts which indicates a propensity to succeed at litigation for the plaintiff if mediation fails; and 

(c)	Contending, aided by facts and the law why FCL should accept the plaintiff’s settlement offer whilst abandoning its own cross claim which increased to K388,842.58 as at 06 September 2024 and increasing.

The settlement proposal emailed to us yesterday in our view does not fully meet helpful criteria alluded to above for FCL’s management with legal support accorded to it critically consider and respond.

We look forward to receiving by 02 April 2025 the:
1.	Revised settlement proposal...” 

18.	By letter dated 9 April 2025, the Defendants wrote to the Plaintiff rejecting the Plaintiff’s settlement proposal and counter offered, a mutual withdrawal of their respective proceedings.  They also put the Plaintiff on notice that, should the Plaintiff fail to comply with terms 2, 3, 6, and 7 of the directions orders, they will  apply to dismiss the proceeding and seek costs on a full indemnity basis. 

19.	The Plaintiff filed with the Court a revised settlement proposal, document No. 80 on 16 April 2025. Then by letter also dated 16 April 2025, the Defendants acknowledged receiving the revise settlement proposal and pointed out that, that proposal did not take care of the concerns they raised. At the same time, they pointed out the need for a response to their counter proposal. They then repeated their request for compliance of terms, 2, 3, 6, 7 and other terms of the orders of 08 November 2024 as extended and asked the Plaintiff to take the next step in the proceeding. 

20.	A careful perusal of the settlement proposal reveals a failure to point out to the evidence supporting each of the heads of damages the Plaintiff was proposing in settlement. Similarly, the Plaintiff failed to have each of his heads of damages supported by any case law or other law on point by appropriately citing them in support of each of his propositions and proposals. Instead of doing what the Defendants consistently in accordance with the orders of the Court required of the Plaintiff, his proposal continued to make claims without any reference to the evidence and the law on point. I note a list of affidavits is stated in part 4 of the proposal and statutes and two case law in part 5. But these are done without referring to any particular provision or paragraph of any of the cases and statutory law listed. More specifically, the proposal fails to demonstrate how any part of the affidavit evidence and the statute and case law citied was relevant and applicable and supported each of the Plaintiff’s claims.  This proposal in my view, failed to meet the intent and purpose of ordering settlement proposals based on the relevant facts and the relevant law to constitute a proper settlement proposal that was meritorious. Ignoring, what was requested of them by the Defendants, the Plaintiff failed to meet the intent and purpose of terms 4 and 5 of the Orders of 08 November 2024.

21.	Subsequently, by a generally worded letter dated 22 August 2025, Counsel for the Plaintiff wrote: 

“We refer to the above matter.

We avert your attention to our earlier correspondence and follow up letter and note that we have not received any response to our client’s settlement proposal.

Kindly advise us your client’s position in relation to the settlement proposals.

Our client is willing to consider any settlement offers considering reimbursement of the value of the vehicle (less depreciation) and costs of proceedings. 

Our client is anxiously awaiting to hear from your client, sooner...”

22.	On 27 August 2025, the Defendants via email, asked the Plaintiff to be specific about the settlement proposal with dates including, the dates for the letters generally referred to in their letter of 22 August 2025.  The Defendants lawyers also asked for a provision of copies of the letters allegedly sent to them. 

23.	The last communication in this matter is a letter dated 28 August 2025, from the Defendants lawyers to that of the Plaintiff.  That letter acknowledges a receipt of a letter from the Plaintiff’s lawyer dated 22 August 2025, which they said they received after sending out their letter of 27 August 2025. There appears to have been no improvement by then and the Defendants lawyers reiterated effectively the contents of their letter of 27 August 2025. 

24.	On 14 November 2025, Counsel appearing before this Court on behalf of the Defendants, Mr. Ezron Ulach deposed to and filed an affidavit, document No. 98.  Counsel deposes that, there has been no further communication from the Plaintiff and his lawyer.  

25.	Based on the evidence before the Court on the question of compliance of term 4 and 5 of the Orders of 08 November 2024, I find the Plaintiff has failed to fully comply with these orders.  The proposals per document numbers 75 and 80 fail to come within the ambit of what was in fact required of the Plaintiff.  Instead, of doing what was required of him, he chose to press on with settlement proposals not backed up by any relevant facts and law on point.  That was so, even, despite repeated requests of the Defendants for the Plaintiff to send a proposal that was based on the relevant facts and the law per the Court orders.  

Statement of Agreed and Disputed Facts and Issues for Resolution 

26.	We now turn to the next set of the orders of 08 November 2024, namely terms 6 and 7.  These orders required the parties to settle upon a Statement of the relevant Facts and Issues for Resolution (Statement). Term 7 prescribed the form the Statement was to take and its contents. It specifically excluded arguments, submissions, conclusions, opinions or the law.  The aim was to get the Plaintiff to state the bare relevant facts from his perspective in the second column which were then to be considered by the Defendants.  Then for any facts disputed by them, they were to state their version of each of the disputed facts in the third column. Unless the matter got fully settled, such a Statement would have assisted the parties and the Court to ascertain at once the facts in dispute and why to determine the number of witnesses to be called, the length of trial and the facts to be tried and found by the Court. 

27.	As I observed in Edward Kae v. Kimana Mondo (2020) N8681 at [11]:
“Requiring parties to settle upon a statement of agreed and disputed facts and issues for determination or resolution or a statement of facts and issues in any case before the Courts, is a well-accepted part of effective case management. Order 10, 9A - Listings Rules r.7 (4) (j) and r.9 (2) (e) of the National Court Rules (the Rules) provides the statutory foundation for such statements. These rules help provide a necessary process for parties to consider and where they so wish, exercise the option of voluntary admission of facts under O. 9, r.28 of the Rules.”

28.	Then at [12] in the same case, I discussed the important role such Statements play in our system of justice in the civil jurisdiction in these terms:

“Statements of agreed and disputed facts and issues are necessary to enable an expedited resolution of proceedings in court by avoiding unnecessary delays, unnecessary lengthy trials and costs. To achieve that objective, such a statement is aimed at getting the parties to point out the relevant facts, which of them are agreed and which of them are disputed and out of those, the factual and legal issues that are presented for resolution. As can be seen, such statements serve a most important purpose in the need for timely hearing and disposal of cases. Given that, our courts have taken any delays or failure to promptly settle upon a statement of agreed and disputed facts and issues as serious failures and have in some cases, resulted in dismissal of proceedings... 

29.	Earlier, sitting in the Supreme Court in the matter of Belden Norman Namah v. Hon. Rimbink Pato & Ors (2016) SC1497,  I made the point with the agreement of my brothers, Salika DCJ (as he then was) and Kariko and Sawong JJ that:
“If indeed there were serious disputes on the relevant facts or on the law for very good reason, that fact and the reasons needed to be brought out promptly through the filing and serving of a statement of agreed and disputed facts and legal issues for trial with the cooperation and agreement of the parties. That could have enabled the parties and the Court to see which of the facts are disputed with the reasons for the dispute and which of the facts were not in dispute. Then in respect of any facts seriously in dispute, the parties could have easily agreed to such disputes existing and list the relevant disputed facts with the reasons of the dispute succinctly stated. The directions hearing Judge could have then inquired into the reasons for the disputed facts and determine which of them become agreed facts and which of them should remain contested with the reasons for the contest clearly stated. That could have then led to a prompt but shorter trial specifically on the facts in dispute rather than an unnecessary lengthy trial.”

(Emphasis supplied)

30.	An order for the parties to settle upon a Statement is not a requirement for them to repeat their pleadings or present their arguments,  opinions, and submissions but a requirement for them to carefully consider their respective pleadings, all of the evidence disclosed in the affidavits they have respectively filed and  state the bare facts and the issues presented within what has been pleaded and disclosed by the affidavit evidence.  I made that point clear again in Edward Kae v. Kimana Mondo (supa) at [15] in these terms: 

“A statement of agreed and disputed facts and issues is derived from the pleadings and the evidence the parties to a proceeding rely upon in support of their respective positions. Hence, it is not a pleading: See Philip Kikala v. Electoral Commission of Papua New Guinea & Anor (2013) N4960, per Makail J. It is instead, a representation of the parties crystallized position in their case, after a consideration of the relevant pleadings and all of the evidence...” 

31.	I went on to make the point that where a Statement contain facts that are not disputed, they constituted admitted facts in these terms also at [15] as follows:

“Accordingly, where such a statement contains agreed facts, they have been treated as admissions in a defense filed in response to a statement of claim which minimizes the issues for trial. The decision in Markham Farming Company Ltd v. Tiri Wanga & Ors. (2019) N8103, per Gavara-Nanu J makes that point clear in the following terms:

‘24. In ... the Statement of Agreed and Disputed Facts and Legal Issues (SADFLI), the respondents agreed that the first respondent did not serve the forfeiture notice on the plaintiff. This was a concession by the respondents which is relevant to the primary issue of whether the forfeiture was valid.
...
A concession is akin to an admission in a defence to a statement of claim. The concession is therefore binding on the respondents.” 

32.	In the present case, the lawyers for the Plaintiff did not draft and forward to the Defendants’ lawyers a draft of the Statement, within the initial time stipulated in the orders of 08 November 2024.  That failure continued after the extension granted by the orders of 13 February 2025 and again by the orders of 19 June 2025. An attempt was made by incorporating a purported Statement in the Settlement Proposal, document No. 75 and later repeated in document No. 80 filed on 16 April 2025. Going by the latest of the two, part 3 of that document purports to state agreed and disputed facts.  This is not in the manner and form required by the relevant orders.  It makes general statements without the relevant and necessary, particulars such as dates, being mortgagor mortgagee relation, the amounts repaid toward the loan, the relevant loan account statement by the end of each statement under the subheading “Agree”. Then under a subheading “Disputed”, the Plaintiff states submissions, conclusions and opinions, for example in paragraph (1) “The Defendants acted in breach of Clause 10(c) and 11 when exercising the mortgage (sic) right was done without consideration of Clauses 12(c)(i)(ii) of Loan & Chattel Mortgage Agreement.”

33.	This was clearly against the clear terms of order 7, which once again reads:
“The Statement shall be in the form of a table having three columns, with the first one containing paragraph numbers, the second stating only the relevant facts chronologically guided by the questions of who said, wrote or did what to whom, when, where, how and the consequences that followed but without stating any arguments, submissions, conclusions, opinions or the law, with the final column indicating where appropriate any disputed fact with a statement of the alternative narrative and concluded with a statement of the issues presented for resolution immediately below the table.”
(Emphasis supplied)

34.	In addition to not being in the prescribed form, setting out only facts to the exclusion of arguments, submissions, conclusions or opinions, it also failed to state the relevant issues, factual or legal for resolution.  Further, term 6 directed the Plaintiff to draft and forward a draft of the Statement to the Defendants.  That the Plaintiff failed to do an instead proceed to have the Statement filed in Court. That was in breach of the Court’s order, and to that extend, it was contemptuous and amounted to an abuse of the Court’s process.

35.	 Additionally, the intended purpose per term 8 and 9 was for the Statement to be settled at the settlement conference, if the parties fail to settle the claim fully through their direct negotiations. With a settled Statement between them, the parties would have returned to the Court ready to address the Court on the points in contention for the Court to assist the parties to have those settled in court or hear the parties and come to a final decision concluding the proceeding if possible or, refer the matter for resolution by mediation. Then failing any resolution in Court at this stage, the Court would consider the draft Statement and if all was in order endorse the same, after which it would be filed in Court for the purposes of trial or taking the matter to mediation. Thereafter, if the matter was referred to mediation and no full settlement is reached, the Statement would be revisited and a revised one could have been settled upon by the parties for Court’s consideration and endorsement before it would be filed in Court, provided the relevant mediation was in the prescribed forms under the ADR Rules 2022. 

36.	The Plaintiff’s repeated failures to get the Statement settled as between the parties in accordance with the Orders of 08 November 2024 as extended, prevented a compliance of terms 8 – 10. These repeated failures of the Plaintiff constituted complete failure to take heed of term 11 of the Orders which forewarned him of the risk of a possible dismissal of his claim if he failed to comply with the Orders. That failure continued when the matter finally came before the Court on 19 November 2025, inclusive of the Plaintiff failing to file an affidavit accounting for the steps he has taken and offer reasonable explanations for his failures as required by term 12 of the Orders of 08 November 2024 as extended. 

37.	It is well settled law that all orders and directions of the Court are serious matters.  Given that, any failure to comply with any order of the Court can attract contempt charges or other serious consequences against the defaulting party. It is more serious in cases where there are self-executing or conditional orders as in the present case.  One of the earliest Supreme Court decisions in these kinds of cases is its decision in Kalang Advertising Ltd v. Kuppusamy (2008) SC924. In that case, I was the trial judge. There, I issued several timetabling directional orders.  The appellant failed to comply with the orders by the time the orders first returned.  Rather than exercising the powers vested in the Court under the then Listings Rules 15 (1) and (2) of the National Court Rules, now incorporated into the National Court Rules as Order 10, r9A (15)(2), I extended the orders and adjourned the matter to return later.  When the matter next returned, the appellant had still not complied with the orders initially made and extended.  That resulted in an invocation of the provisions of the rule in question with a strike out of the appellant’s defence and an order for the entry of summary judgment on liability with damages to be assessed.  In so doing, I rejected purported explanations through submissions of counsel not supported by any affidavit evidence.  Aggrieved by that decision, the appellant appealed to the Supreme Court. 

38.	In dismissing the appeal, the Court held:

“18. 	As for the second submission, we agree with the Listings Judge that the explanation proffered by Mr Mapiso could only be properly put to the court in the form of an affidavit. ... All of these matters should have been put in an affidavit.

19. 	It is not sufficient for lawyers who are formally asked, via a court order, for an explanation for their non-appearance at a directions hearing or about anything to do with the conduct of proceedings, to simply attend court and give an oral explanation. The explanation should be given in an admissible form.”

39.	In 2016, the Supreme Court in Wasis v. Elias (2016) SC1485 by a unanimous decision, effectively adopted and applied what the Court said in its earlier decision in the Kalang Advertising case.  In that case, the appellant appealed against a decision dismissing their claim. The dismissal was on account of the appellants failure to comply with an earlier order requiring them to explain why they did not amend their pleadings in their statement of claim pursuant to another earlier set of orders. 

40.	Instead of dismissing the appellants claim, based on inadequacy of the pleadings and lack of authority for the lead plaintiff, the trial Court adjourned the proceeding with directions for the parties to settle the claim.  On a return of those orders, the parties could not settle because the pleadings of the plaintiffs were inadequate. Consequently, the Court directed the appellants to amend their statement of claim by providing further and better particulars of their claim and further consider foregoing a default judgment they had secured.  

41.	On the next return date, the appellants were still not able to comply with the Court’s earlier orders.  The respondents’ responded with an oral application pursuant to National Court Listings, Rule 15 (2)(c), to have the proceedings dismissed on the ground that the appellants failed to comply with the Court’s earlier orders. The Court again adjourned the proceedings and ordered the appellants to explain, their failures on the next return date. That was with a conditional order that, failing compliance, the proceedings would be dismissed. 

42.	When the matter finally returned, the respondents informed the Court that the appellants did not comply with the earlier orders and sought to dismiss the proceeding in an oral application. The lead appellants sought to explained that the rest of the appellants were in remote parts of the Southern Highlands Province and communication by mobile phone had been difficult due to lack of mobile phone coverage. The trial Court did not find that explanation reasonable because the appellants could have used other means of communication such as putting out a public “toksave” on local radio station and on EMTV and ordered a dismissal of the proceedings.

43.	In dismissing the appeal, the Supreme Court added to its earlier decision, in Hon. Andrew Baing & The State v. PNG National Stevedores Pty Ltd (2000) SC627, at [13]:

“We add, a conditional or self-executing order is not one that should be treated lightly. We say this because the order itself puts the party subject of the order on notice that a certain consequence will occur at a specified date in the future if the conditions of the order are not met. Thus, it is of utmost priority that the party required to comply adhere to its terms. Failure may result in an unfavourable consequence.”

44.	In respect of the finding as to the inadequacy in the appellants’ explanation for their failure, the Supreme Court held at [15]:

“His Honour’s reasoning is not only reasonable but also based on proper principles of law relevant to the exercise of discretion. As the defaulting party, the onus was on the appellants to provide a satisfactory explanation for the default. It cannot be emphasised enough that the information sought, and its provision was so crucial to the case and moreover, it’s further progress.”
 
45.	Finally, the Supreme Court reiterated the principle that, “[t]he onus is on the appellants to diligently prosecute their claim” which the Court found they failed to discharge and went on to hold at [17]:

“In our view as the appellants were the subject of the conditional order and failed to satisfactorily explain the default, in the exercise of his further judicial function, it was open to the primary judge to satisfy himself if the order was complied with. Similarly, it was open to the respondents to seek perfection of the conditional order if the appellants failed to comply with it. The conditional order put the appellants on notice that if they failed to satisfactorily explain why they did not comply with the earlier order, the proceedings would be dismissed.”

46.	Just over a decade later, the issue of self-executing orders or conditional orders came up before the Supreme Court in the matter of Tumbiako v. Kaiyo (supra). In that case, several related proceedings were commenced in the National Court in 2015. There was no action in each of the matters before the National Court for several years. In January 2022, the Court made Chambers orders timetabling each proceeding for settlement negotiations, mediation and failing settlement Court hearing and determination. Those orders included a self-executing order for dismissal of each proceeding in the event of non-compliance by the plaintiffs. But if the defendants were the defaulting parties, judgment would be ordered for the plaintiff.  Those orders were aimed at getting the parties to have the matter prosecuted without further unnecessary delay.

47.	The appellants in each matter were represented by the same lawyers. No steps were taken by any appellant to comply with the timetabling orders. The fourth respondent, who was an independent contractor engaged by the State to demolish public houses occupied by each of the appellants, filed material in compliance with the National Court’s timetabling orders. 

48.	When the matters next returned to the Court, the lawyer for the appellants sought an adjournment to explain the lack of compliance without complying with the law on adjournment as represented by the decision of the Supreme Court in Kalinoe v. Paul Paraka Lawyers (2014) SC1366, at [12].  The fourth respondent opposed the application. Despite no case being made out for an adjournment the Court granted a two-hours adjournment to enable the appellants the opportunity to put on evidence explaining their failures. That they failed to do.  Instead, a repeat application for adjournment was made, again without making a case in accordance with the law on adjournment.  That application was refused and the application to dismiss each of the proceedings proceeded to a hearing and the Court decided to dismiss each of the proceedings summarily pursuant to Order 10, r9A (15)(2) of the National Court Rules with costs against the plaintiffs.
 
49.	The appellants appealed against the decision. They alleged inter alia, a breach of the Constitution, lack of jurisdiction under Order 10, r9A (15)(2), breach of the rules of natural justice, and failure to exercise further judicial intervention in respect of a conditional order of the National Court. Included in their grounds of appeal was also a challenge as to the Court’s jurisdiction to issue the timetabling orders by Chambers Orders. The fourth respondent opposed each of the appeals and each of the grounds of appeal. 

50.	The Supreme Court dismissed all the grounds of the appellants appeal and hence each of the appeals holding that the Court had the jurisdiction to make the first of the timetabling orders by Chambers Orders.  In so doing the Court pointed out at [46]: 
“First, it is a fundamental principle that the onus rests on plaintiffs to diligently prosecute their claim. It is not in dispute that, at 17 January 2022 when the primary Judge made the relevant self-executing Order, and again at 9 March 2022 when the matter returned before his Honour, no action to progress their respective claims had been taken by plaintiffs since the amended writs of summons and amended statements of claim were filed in 2015. As the primary Judge pointed out to the lawyer for the appellants, no satisfactory explanation was provided by the appellants as to why such prosecution had not occurred. The lawyer for the appellants submitted from the Bar Table that there had been issues in respect of contacting the appellants, however as his Honour correctly pointed out such submission did not constitute proper evidence which his Honour could take into account.” 
51.	Then in relation to an argument that the trial judge lack jurisdiction to make the self-executing or conditional orders by Chambers orders, the Supreme Court held at [52]:
“We reject the proposition that the primary Judge lacked jurisdiction to dismiss the proceedings, because:
•	His Honour did not purport to dismiss the proceedings pursuant to O 10 r 9A(15)(2)(c) as the appellants claimed. The order of 9 March 2022 was made pursuant to O 10 r 9A(15)(2).
•	It cannot be inferred from the terms of his Honour’s order of 9 March 2022 that it was made pursuant to O 10 r 9A(15)(2)(c). His Honour specifically referred in the relevant order to the Supreme Court decisions of Kalang Advertising Ltd v Kuppusamy [2008] SC924 and Wasis v Elias [2016] SC1485. In both cases the Supreme Court examined the power of the National Court summarily determine matters before it. Neither case relied exclusively on O10 r 9A(15)(2)(c).
•	The National Court has inherent power to control its process, and may make such orders as are necessary to do justice in the circumstances of a particular case: s 155(4) of the Constitution, Amet v Yama [2010] SC1064 at [19], Kasper v Kiap [2020] SC2047 at [11].
•	In any event O10 r 9A(15)(2)(a) of the National Court Rules specifically empowers the National Court to summarily dispose of a matter for want of prosecution since filing the proceedings or since the last activity on the file. The timetabling orders (including the self-executing Order) … were plainly made to provide the parties with a framework to progress the respective claims. Equally plainly, the appellants for unexplained reasons did not take action in accordance with those Orders. It follows that it was entirely open to the primary Judge to find that this conduct of the appellants was intentional, that the delay in prosecuting the litigation was inordinate and inexcusable, and that it caused prejudice to the respondents who had been the subject of the claims for 7 years.”

52.	The latest decision of the Supreme Court on point appears to be the decision in Pacific Services Network Ltd v. Koiari Wan Ltd (2024) SC2694, which adopted and applied the decisions in the Kalang Advertising case and Wasis v. Elias (supra).  That was also in a case where orders like those made in the present case with a self-executing or conditional order were made.   

53.	In that case, the primary judge made timetabling orders earlier on in the proceedings for the provision of evidence and settlement offers. Included in the orders was a self-executing or conditional order that provided for a dismissal of the proceedings if the plaintiff failed to comply or the granting of judgment for the Plaintiff if the Defendant failed to comply.  The appellant failed to comply with the initial timetabling orders.  The orders were extended with a new return date set.  On the return of the matter on the second occasion, appellants failed to comply with the orders. It had filed an application for an extension of time, but it also failed to prosecute that with due diligence. The only explanation given for its noncompliance of the timetabling orders was that the appellant’s managing director had been away for almost a month and nothing more.  The trial judge did not find this as reasonable explanation and proceeded to order a dismissal of the proceedings.  In so doing, the trial Court adopted and applied the decision in the Kalang Advertising case.

54.	The Supreme Court per Logan J with whom, Toliken and Polume-Kiele JJ agreed reasoned:
“23.	As I have mentioned, the order was of a self-executing character.  The cases mentioned by the learned primary judge show that his Honour was well aware of that character and pronouncements which had been made earlier by this Court concerning such orders.  

24.	A convenient starting point in relation to such authority is Lomai v Seal (Manus) Limited [2008] PGSC 57; SC1326, in which the Court stated at [14]:  
‘Litigants and especially lawyers representing their clients must take heed of court orders and comply with them.  Orders or directions by the court are to be obeyed by all parties who seek redress through the courts and all persons to whom the order relates.  A party may not like an order made, but as long as it remains enforced, he must obey its command...’

55.	His honour then cited the decision in Wasis v Elias (supra) at [12]-[13] and [16]-[17] and went on to hold at [29]:
“29.	Of particular note in that discussion is the statement by the Court in [17] that the appellants had failed to satisfactorily explain that default and, in the exercise of its further judicial function, it was open to the primary judge to satisfy himself if the order was complied with.  That is really all that occurred here, along with, as [17] also indicates, it being open to the respondent to seek perfection of the conditional order.  What was entailed here was the exercise, in the end, of a discretion as to whether to extend time, nonetheless, or to perfect the self-executing order upon being satisfied as to non-compliance.”  

56.	Finally, his Honour concluded at [31]:

“I am not at all persuaded that it was not reasonably open against that background for the primary judge to have decided nonetheless that the order should be perfected to the end of dismissing the proceeding.”

57.	According to my search, the only decision that has not followed the decision in the Kalang Advertising case in terms of the outcome, is the Supreme Court decision in, Lord & Company Ltd v. Inapero (2014) SC1624.  There, it was a case in which the Supreme Court found the explanation offered by the appellant was reasonable. That distinguished the case from the decision in the Kalang Advertising case. 

58.	Based on the foregoing decision and other decisions generally on want of prosecution, it can be concluded that the binding and authoritative decisions of the Supreme Court stand for the following propositions:

(a)	The National Court has the inherent power to control and enable a prompt resolution of proceedings before it and for which purpose it can issue timetabling orders and directions. 

(b)	The power to issue such orders, includes the power to issue what has been described as “self-executing or conditional orders” to ensure compliance of the orders and directions the Court issues.

(c)	As conditional orders, self-executing or conditional orders require further judicial acts to consider if the conditions for the making of the “self-executing or conditional orders” have been met or not on the return of such orders.

(d)	Plaintiffs have the primary duty to prosecute their cases with due diligence and that includes a duty to take the lead in compliance of timetabling orders. 	

(e)	A party failing to comply with any timetabling order has the obligation to file and serve a proper affidavit disclosing:

(i)	he or she as taken all the relevant steps to comply fully with the orders but for say matters beyond his or her control which prevented a full compliance; and

(ii)	reasonable explanations for his or her failure in compliance and that such failure was not intentional; and 

(iii)	no prejudice was occasioned to opposing side.

(f)	The element of prejudice is established by adducing evidence for example of all the witnesses in the case are readily available to be called as and when required, they are easily contactable and that their respective memories with the cogency of their evidence are intact and have not been distorted in any manner or form.

(g)	Where noncompliance of an order is established or apparent on the face of the Court’s record, the onus is on the party against whom the orders or directions have been directed to provide a reasonable explanation in terms of (e) and (f) above. 

(g)	Failing any reasonable explanation for any noncompliance of any court orders attracts perfecting any self-executing or conditional order, if one exists or by an invocation of Order 10, r9A (15) (2) (c) of the National Court Rules for a dismissal of the proceedings or enter judgment for the plaintiff depending on who is in default.

Application of the law to the facts

59.	The timetabling orders in this case were first made on 08 November 2025.  Subsequently, they were first extended on 17 February 2025 and the second time on 19 June 2025 with an original return date of 1 September 2025.  On each occasion, more than a couple of months were allowed for compliance.  Despite, these extensions of time, and repeated requests of the Defendants through their lawyer, the Plaintiff through his lawyer failed to appropriately respond to the correspondence. That was in breach of the Professional Conduct Rules for lawyers and the steps he was required to take under terms 3 – 12 as pointed out in the foregoing discussions in the context of each of the orders.   Again, as noted, there is no dispute that the Plaintiff has failed to comply with the orders of 08 November 2024 as extended on 17 February 2025 and 19 June 2025. 

60.	Consistent with the law has discussed and set out above, the Plaintiff as the defaulting party in this case, was required to provide reasonable explanations for his failures despite the 2 extensions granted him resulting in time spreading out over a period of 12 months or 1 year.  No evidence in admissible affidavit form has been filed for or by the Plaintiff providing such explanation.  Both the Plaintiff and his lawyer were required to go into affidavit evidence disclosing what each of them did about the orders and offer reasonable explanations for the various failures. They both failed to do that. The purported explanation by learned Counsel for the Plaintiff that, a failure by the Defendants to respond to the Plaintiff’s settlement proposal cannot be sustained for reasons given in a consideration of the Plaintiff’s purported settlement proposal and the orders for settlement of a Statement. Besides that, those submissions were from across the Bar Table.  That was the position in the Kalang Advertising case and the decision in Tumbiako v. Kaiyo (supra).  The Court in both cases, both at the trial and appellate level rejected such submissions.   In this case, the failure is even against term 12, which directed the parties to file and serve affidavits of evidence explaining in the event of any failure to comply with any of the orders of 08 November 2024 as extended.  The result of all of that is that the Plaintiff has failed in his duty to provided reasonable explanations for his repeated failures despite more time and opportunity given him. 

61.	 That being the case, there is no impediment against the Court granting the Defendants application for a perfecting of the self-executing or conditional order by ordering a dismissal of the Plaintiffs claim for his failure to comply with the timetabling orders. Before getting to a decision on the application on that basis, I decided to take a quick look at the nature of the claim that is before this Court. 

62.	The Plaintiff's claim is one of seeking to recover damages for an alleged unlawful repossession of a motor vehicle that was acquired by him through a loan agreement between himself and the Second Defendant (FLC). Under that agreement, the Plaintiff applied for and was granted funding of up to K153,085.00 on 06 November 2015 for the purchase of the vehicle.  During the hearing, the Plaintiff conceded to falling into areas for about 2 months whilst the Defendants maintained their claim of a longer period of default.  Following the Plaintiff’s default, the FLC gave notice of the default and repossessed the vehicle that was bought with the loaned funds. Subsequently, the FLC put the vehicle up for sale by tender and eventually sold it off to a third party to recover parts of the amounts due and owing under the loan agreement. The Plaintiff took no meaningful step toward either paying up in full the amount owing and redeem the vehicle or prevent the sale by tender by appropriate court orders. 

63.	 The law on mortgagor and mortgagee relationships is very clear. In such an arrangement, the funding entity or a bank, the mortgagor or lender, advances the funds agreed to be lent toward the purchase of a property.  The property becomes the main security for a repayment of the amounts lent with the agreed interests and costs.   In this way the borrower gets the funds upfront and uses it while the lender, is guaranteed recovery of the funds lent together with the interests, fees and charges through the agreed periodical repayments.  

64.	When there is a default in meeting the agreed regular repayments, it gives rise to the lender’s right as the mortgagee to take steps within the terms of the agreement to take possession of the property the subject of the loan arrangement or the property pledged as security for the loan. The mortgagee would than advertise for sale by tender and sell of the property to the successful bidder. 

65.	In my decision in Golobadana No 35 Ltd v. Bank of South Pacific Ltd (2002 N2309, I discuss in detail the rights of the parties in a mortgagor and mortgagee relationship.  In that context, I highlighted the right of a mortgagor to redeem his or her property in these terms:

“The right of a mortgagor to redeem his property is a fundamental characteristic of all mortgagees. As Lord Macnaghten said in Nokes & Core Ltd v. Rice [1902] A.C. 24, at p. 30: ‘Redemption is of the very nature and essence of a mortgage, as mortgages are regarded in equity. It is inherent in the thing itself.’ For equity guards jealously the right of the mortgagor to redeem and whenever it is faced with the challenge ‘will not permit any devise or contrivance designed or calculate to prevent or impede redemption.’ (Ibid) This accords well with the age-old principle in the law of mortgages that: ‘Once a mortgage always a mortgage:’ See Seton v. Played (1902) 7 verse Jun. 265, at 273; E.R. 108, at 111.

66.	From this I noted that 2 principles were presented. The first was whether a transaction is a mortgage is to be determined as a matter of substance and not form. The second was the principle that the equitable right of redemption in a mortgagor cannot be “clogged” or “fettered.” I then elaborated:

“These concepts or principles have developed and come into existence in response to the old position at common law which treated mortgages as taking the form of an absolute conveyance of the subject property by the mortgagor to the mortgagee. That meant that upon failure of a mortgagor to pay on the date specified for payment, the common law regarded the rights of the mortgagor as at an end and the mortgagee’s interest in the property as absolute and indefeasible. That defeated the whole nature of mortgages, which was merely a security for the repayment of monies lent and secured by the mortgage. This intervention therefore made it possible for a mortgagor to redeem after the due date for payment had passed. That right has become known as the ‘equitable right to redeem.’ That has come about on the basis that once the mortgagee had been paid all principal and interest and being compensated for any loss suffered by reason of late payment, the lender had received all that he had bargained for, and it would be against any good conscious for him to retain the property as well. That is why it is generally accepted that equity looks at the substances of the transaction rather than to its form, to determine whether it is intended to be a mortgage or an absolute conveyance and if despite its form, it is in substance a mortgage, the  mortgagor  is entitled to redeem on repayment: Marquess of Northhampton v. Salt [1891] UKLawRpAC 47; [1892] A.C. 1”

67.	However, the right to redeem is not available for ever.  As was held in Ning’s Trading Pty Ltd v. ANZ Banking Group (PNG) Ltd (1998) N1700, a mortgagor’s right to redeem terminates upon the signing of a contract between a mortgagee and a third party, who successfully bids for a mortgagee sale.

68.	In the present case, the Plaintiff defaulted in his repayments.  He took no meaningful step to prevent the advertisement for sale by tender and the eventual sale and redeem the vehicle.  Through his amended statement of claim, he is claiming K6, 763,877.00 out of the K153, 085.00 loan to him. Repeating what I already observed in the context of his failure propose settlement in accordance with the relevant orders, he produced no evidence to substantiate his claim that that he fully repaid the loan, and he owed nothing to the FCL.  If that was true, he could have urgently run to the Court and secure restraining orders against the Defendants, restraining them from proceeding with the mortgagee sale.  That he did not do and allowed, consequently for the sale by tender to go through.  After the conclusion of the sale, the Plaintiff issued these proceedings. If his claim was meritorious, he could have:

(a)	filed and served affidavits of evidence disclosing clearly a full settlement of the principal amount money lent with interests, fees and charges;

(b)	produce evidence of in fact sustaining a loss of the kinds of money he is claiming; and 

(c.)	promptly comply with the orders of 08 November 2024 within the time frames given originally or as later twice extended. 
 
69.	But as noted already, the Plaintiff failed to do any of these and has failed to provide any reasonable explanation for his repeated failures. 

Decision on the application

70.	Ultimately, considering all the factors in this case, and more so the repeated noncompliance, despite repeated requests by the Defendants and the repeated urgings of the Court for the plaintiff to comply, only one outcome is clearly open.  That is to uphold the application seeking a dismissal of this proceeding, for the Plaintiff’s repeated failures to comply with Orders of the Court and his failures to provide any reasonable explanation for those failures.  Accordingly, I make the following orders:

(1)	The Plaintiffs claim, per his writ of summons is dismissed on account of his failures to comply with the orders of 08 November 2024 as extended on 17 February and 19 June 2025 and his failure to provide a reasonable explanation for his failures.

(2)	Costs of the now dismissed proceeding and the application are ordered in favour of the Defendants to be taxed, if not agreed.

(3)	The Defendants shall by or before 17 December confirm if they will be pursing their crossclaim and should they wish to pursue their cross claim, the same shall be listed on 01 December 2025.

(4) 	Time for the entry of these orders is abridged to take place forthwith upon the Court signing them.

71.	Judgment and orders accordingly.

________________________________________________________________
Lawyers for the applicant/defendants: Posman Kua Aisi Lawyers	
Lawyers for the respondent/plaintiff: D.F. W Lawyers