Kirori v Daro [2005] PGDC 21; DC142 (18 November 2005)

DC142

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

CASE NO 2809 OF 2005

BETWEEN

BETTY KIRORI
Complainant

AND

BOIO BESS DARO
Defendant

Port Moresby: C Bidar

2005: 18 November

Counsel

Complainant, In Person
Defendant, In Person

DECISION

18 November 2005

BIDAR, PM: On the 11th August 2005, Complainant filed summons upon complaint against the defendant, claiming K10, 000.00 liquidated sum for professional services provided to the defendant at the defendant's request. Two professional services rendered were cash flow proposal for Bank of South Pacific and a submission for Canada Funding for K90, 000.00.

Complainant is a certified public accountant. She claims that during the months of November and December 2004 and February 2005, it was verbally agreed between the parties that complainant would provide professional services to the defendant on mutual terms and as such payment was to be made at completion of provision of professional services.

Complainant claims professional services were provided and despite demand, no payment was made.

Subsequently, on 19th September 2005, complainant filed default summons upon a complaint for civil debt. This was an amended proceedings claiming liquidated sum of K10, 000.00. Prior to filing of Default summons, the defendant in response to initial proceedings, filed a Notice of Motion on 5th September 2005 seeking inter alia, dismissal of proceedings as disclosing no reasonable cause of action. This motion was not moved by defendant and on the 14th September 2005, Mr. Donald Foo who appeared for defendant applied for withdrawal of the motion, which was withdrawn on the same date. The court directed complainant to file a default summons, which she did on the 19th September 2005.

On the 22nd September 2005, complainant filed a Notice of Motion, which seeks these orders:

"1. An order for default judgment be entered against the defendant

2. Defendant pays the costs of proceedings

3. Any other or further orders this Honourable Court deems fit."

Complainant relies on her own affidavit sworn and filed on 21st September 2005. Among other things she deposed that, on 14th September 2005, defendant through her representative, Mr. Donald Foo, withdraw her motion on the basis that there was overwhelming evidence that the defendant benefited from the professional services rendered. She also relies on her earlier affidavit sworn on 18th August and filed on 22nd August 2005.

The defendant in response to earlier proceedings filed a defence on 5th September 2005 and served the complainant. It appears complainant filed no reply to the defence; but filed an affidavit in response on the same day. She deposed to facts that do not set out the chronology of events leading up to the entry of alleged oral agreement.

On 20th October 2005, she swore to and filed further affidavit in response. She denies owing any money; let alone amount claimed by complainant. In her further affidavit, she cross-claims against the complainant for certain monies owing to her. This in my view is improper and defendant cannot be allowed to cross-claim against the complainant on an affidavit. It would have been proper to cross-claim when she filed her defence and cross-claim so that the other side replies to defence and files defence to cross-claim. As it is the procedure is improper and the cross-claim should be dismissed.

As to the complainant's claim which is based on contract. The basic principles and that, there was offer made by and party, which is accepted by the other, for a consideration. In her statement claim the complainant pleads that during the months of November and December 2004 and February 2005, defendant sought assistance of complainant to compile submissions for proposed funding from donor agency in Canada for construction of a new ablution block and a cash flow for bank South Pacific for purposes of obtaining a loan.

Prior to rendering any services, the defendant verbally agreed in good faith and advised complainant any work done will strictly be on mutual understanding and treated as professional service as it is for benefit of a business and as such bills for services will be settled upon completion of work, which the parties agreed that the defendant will honour her undertaking for services provided.

After completion of two professional services, i.e. submission for Canada Funding and Cancer advocacy and awareness outreach for February 2005, complainant provided her bill for professional service followed by numerous correspondence advising defendant to settle the bill. Defendant has neglected and refused to pay the bill provided.

As I alluded to, complainant does not set out chronology of events, which led to entry of alleged oral contract. It appears that facts do not show that an offer was made which was accepted for a consideration. Complainant and the defendant are related as maternal cousins and whatever arrangements or communications entered into appear to be social in nature, and as such no intention to create a leally binding relationship was entered into. In these circumstances: I find that no legally binding contract was entered in between the parties, so that the complainant has a cause of action to pursue. In all the circumstances, I refuse the motion for entry of default judgment. Consequently, since the complainant has no basis to pursue her claim, I dismiss the entire proceedings. I order parties to pay their own costs:

Mr. Jul Augustine: Complainant
Mr. Donald: Defendant