Membi v Ericho [2005] PGDC 10; DC95 (9 August 2005)

DC95

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE 1685 OF 2005

WIKAI MICHAEL MEMBI
Complainant

AND

DAVID ERICHO
First Defendant

ISRAEL NOU
Second Defendant

YISTAR HOLDING LIMITED
Third Defendant

Port Moresby
Bidar, PM

5 August 2005
9 August 2005

DISTRICT COURT - Practice and Procedure - application to set aside
Ex parte order - Principles - District Court Act, s.25.

BIDAR, PM: Defendants informed Court that the Principal of the firm of lawyers they instructed is sick and Mr. Daniel Kop is attending to other matters. Defendant intends to move the motion themselves.

On the 5th August 2005, defendants through their lawyers filed a Notice of Motion seeking the following Orders:-

"1. The ex-parte Order of 4th July 2005 be set aside pursuant to s.25 of the District Court Act.

2. Costs to be in the cause.

3. In the alternative this matter be set down for trial.

4. Any other Orders as the Court deems fit."

On or about 19th May 2005, complainant filed proceedings against the defendants claiming outstanding rent, utility charges and damages.

As against the claim the defendants filed no notice of intention to defend or defence, and as a result on the 4th July 2005, this Court entered default judgment for complainant in the sum of K7, 046.42 together with interest per Statute and costs.

Defendants' application seeks to set aside those Orders of 4th July 2005. In support of the application, defendants' rely on the affidavit of David Ericho sworn and filed on the 27th July 2005.

Mr. Ericho deposes that, the complainant's claim is simply frustration over non-payment of claim he made against bond fees (deposit) held in trust for him by the second defendant. This bond fee was to be transferred to new tenancy arrangement for the house first defendant currently occupies.

Some time later after receiving summons, he discussed the matter with the Second Defendant, that quality productive time would be wasted in attending court, so it was agreed between them to pay the bond fee by cheque.

Among other things, he deposed that since the payment in cheque was made to complainant, and the natural thing to do was that complainant withdraw the proceedings. Cheque payment was for an amount of K1, 226.53 and this amount merely reduced the total sum from K8, 272.95 to K7, 046.42.

Mr. Ericho in his affidavit does not depose to any material facts such as the debt being fully paid or any evidence to show that the amount claimed is disputed. In all the circumstances, I find no evidence to show defence on merit at all to grant the orders the Defendants seek. I would refuse the motion.

I refuse the motion filed by the Defendants' on 5th August 2005 with costs to the Complainant.

Rules accordingly.

Complainant In Person

Defendant In Person