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Finance Corporation Ltd (trading as FinCorp) v Kae [2020] PGSC 82; SC1997 (11 February 2020)

SC1997

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 193 OF 2019

BETWEEN:
FINANCE CORPORATION LIMITED
trading as FINCORP
Applicant

AND:
EDWARD KAE
Respondent

Waigani: Hartshorn J,
2020: 6^th & 11^th February

SUPREME COURT – practice and procedure - Application for leave to appeal

Cases Cited
Oberia v. Charlie (2005) SC801
Raymond Liu v. Daul Emoto (2009) SC1032

Counsel:

Mr. M. Wapi, for the Appellant
Mr. J. Apo, for the Respondent

11^th February, 2020

1. HARTSHORN J: This is a decision on a contested application for leave to appeal an interlocutory judgment of the National Court which dismissed the applicant's notice of motion. By the said notice of motion the applicant had been seeking to set aside three separate orders pursuant to Order 12 Rule 35 National Court Rules. One of those orders had ordered default judgment against the applicant with damages to be assessed pursuant to Order 10 Rule 9A (15)(2) National Court Rules. Leave is therefore required: Raymond Liu v. Daul Emoto (2009) SC1032.

Background

2. The respondent commenced a proceeding against the applicant for damages. This was on the basis that the applicant as mortgagee had sold the respondent's property at an undervaluation and was negligent in doing so.

Leave to appeal

3. The requirement to seek leave is a procedure that ensures that the Supreme Court is not clogged with appeals from every interlocutory ruling of a judge made before the final judgment.

4. In Oberia v. Charlie (2005) SC801, Lay J., after a comprehensive review of the authorities, listed the following tests that are to be applied to the facts of each application for leave to appeal:

a) Is there an arguable or prime facie case or has it been demonstrated that the trial judge was wrong?

b) Does the appellant have other recourse in the court below?

c) Was the ruling within the discretion of the court? Has it been shown that its exercise was manifestly unreasonable, exercised on a wrong principle or a mistake of fact?

d) Does the decision have any bearing on the final determination of the issues between the parties? Will it affect the primary rights of the parties or prevent the determination of the issues?

e) Will substantial injustice be caused by allowing the decision to stand?

f) Has cause been shown that the trial process should be interrupted by an appeal?

Consideration
5. The applicant submits that leave to appeal should be granted as the primary judge fell into error by not properly considering the facts and evidence contained in the affidavit in support of the said notice of motion and the extract of submission. He also did not properly consider the oral submissions as to costs. Further, the applicant submits that it has a meritorious defence.

6. In determining whether the applicant has an arguable or prime facie case that its proposed appeal should succeed, the notice of motion that was dismissed and the relief which was being sought therein requires consideration. In the notice of motion, Order 12 Rule 35 National Court Rules was cited as providing the jurisdiction for the Court to set aside the three orders. Order 12 Rule 35 is as follows:

"The Court may, on such terms as it thinks just, set aside or vary a judgement entered in pursuance of this Division."

7. The three orders sought to be set aside were not judgments entered in pursuance of Division 3 Order 12 National Court Rules. Further, the order sought to be set aside which had ordered default judgment, had ordered default judgment pursuant to Order 10 Rule 9A(15)(2) National Court Rules and not in pursuance of Division 3 Order 12 National Court Rules. The applicant was not entitled to the relief that it sought by relying upon Order 12 Rule 35 as the orders sought to be set aside were not judgments entered in pursuance of Division 3 Order 12 National Court Rules.

8. Consequently, the applicant does not have an arguable or prime facie case that its proposed appeal should succeed as it was not entitled to the relief that it sought in the National Court. Further, as an incorrect Rule had been relied upon by the applicant to invoke the Court's jurisdiction, it was within the discretion of the primary judge to award costs on a solicitor client basis. The application for leave to appeal should be dismissed. Given this it is not necessary to consider the other submissions of counsel.

Orders

9. It is ordered that:

a) This application for leave to appeal is dismissed;

b) The applicant shall pay the costs of the respondent of and incidental to this application.
__________________________________________________________________
Finance Corporation Limited: Lawyers for the Applicant
Apo & Co: Lawyers for the Respondent