Home | Databases | WorldLII | Search | Feedback Supreme Court of Papua New Guinea

Wia v Nick [2018] PGSC 108; SC1766 (28 September 2018)

SC1766

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 49 OF 2018

BETWEEN:
SAKA BEN WIA
First Appellant

AND:
BENIK HOLDINGS LIMITED
Second Appellant

AND:
JOSHUA NICK
First Respondent

AND:
ANZ CLOTHING
Second Respondent

Waigani: Dingake J
2018: 9 & 23 May, 20 June, 4 & 27 July

Counsel:

Mr. Anthony Rake, for the Appellants
Mr. Allan Mana, for the Respondents

Cases Cited:
Papua New Guinea Cases

Lord & Co. Ltd v Inapero (2010) PGSC 33 SC1081
Curtain Bros (PNG) Ltd v UPNG (2005) SC788

Overseas Cases

United States of America v Motor Trades Limited (1924) AC 196.

28 September, 2018

1. DINGAKE J: This is an application for leave to appeal the National Court’s refusal to dismiss the National Court Proceedings WS No. 1198 of 2015, Joshua Nick and ANZ Clothing v Saka Ben Wia and Benick Holding.
2. The brief background facts to this application are that on the 14^th of September, 2015, the respondents instituted proceedings against the appellants, in which they claimed that the first appellant had by misrepresentation, induced the respondents to part with a portion of land the respondents had owned.
3. In the alternative, the respondents claimed the equitable relief of rectification.
4. On or about the 28^th of July, 2017, the appellants moved the Court to dismiss the above proceedings in terms of Section 16 (1) (a) of the Frauds & Limitations Act, contending that the proceedings instituted by the respondents were time barred.
5. The application was not successful.
6. Aggrieved by the decision of the National Court refusing the interlocutory application for dismissal, the appellants have filed this application for leave to appeal, which is vigorously opposed by the respondents.
7. The principles on the grant of or refusal of leave application are well settled.
8. The grant or refusal of the leave to appeal is discretionary. Such discretion must be exercised on proper principles and grounds. Where the decision appealed against falls within the ordinary interlocutory discretion of the Court relating to procedure and practice the applicant must not only prove an arguable case in his favour, but the applicant, should, additionally, demonstrate that the decision complained against prevents him from ventilating the trial of some issue critical to the applicant’s case (Lord & Co. Ltd v Inapero (2010) PGSC 33 SC1081 (3September 2010)).
9. An appellate Court would not readily interfere with the exercise of discretion by the trial judge unless it can be shown that the exercise of the discretion was clearly wrong; unreasonable or plainly unjust. (Curtain Bros (PNG) Ltd v UPNG (2005) SC788).
10. Applying the above test to the present application, there is nothing to suggest that the exercise of the trial judge’s discretion was wrong, exercised on wrong principle, unreasonable or manifestly unjust.
11. In my mind, it may well be that, after a full trial, the respondents claim may be found to be time barred, but I cannot say so with respect to the equitable remedy of rectification, which was the alternative relief sought.
12. In my mind, I am unaware of any authority that suggests that delay, can defeat the alternative relief of rectification. Indeed, Mr. Mana, learned Counsel for the respondents, helpfully brought to my attention the authority of the United States of America v Motor Trades Limited (1924) AC 196, that support the preposition that delay need not necessarily adversely affect the relief of rectification.
13. More significantly, the decision appealed against does not seem to have any bearing on the final determination of the issues between the parties. The decision appealed against does not affect the primary rights of the parties or prevent the determination of the issues.
14. Upon considering the material placed before me and the submissions of learned Counsels for the parties, I am persuaded that no injustice would be caused by allowing the decision of the lower Court to stand. It seems to me that there is no compelling reason to interrupt the process before the National Court with an appeal.
15. The Court is not satisfied that there is a meritorious and arguable case warranting the granting of leave to appeal as prayed.
16. In the result, the application is without merit, and it is refused with costs.

___________________________________________________________
Lomai & Lomai Lawyers: Lawyers for the Appellant

Corrs & Chambers Westgrath: Lawyers for the Respondent