Umba trading as Umba Lawyers v Korul [2007] PGDC 91; DC615 (17 August 2007)

DC615

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 211 of 2007

BETWEEN

DENIS UMBA trading as UMBA LAWYERS
Complainant/ Respondent

AND

THOMAS KORUL
Defendant/ Applicant

Goroka: M Gauli
2007: August 14, 17

CIVIL - Notice of Motion – Seeking orders to dismiss the substantive cause of action unpaid legal costs – Costs incurred while represented by Acanufa Lawyers.

Cases Cited
Nil

References
Nil

Counsel
For the Complainant - Mr. D. Umba of Umba Lawyers
For the Defendant - Mr. K. Pilisa of Pilisa Lawyers

17 August 2007

DECISION OF THE COURT

M Gauli: The Defendant/ Applicant Thomas Korul filed an application in which he seeks orders to dismiss the substantive cause of action against him by the Complainant Denis Umba trading as the Umba Lawyers of the Complaint No. 125 of 2007. In that substantive proceeding the complainant (Umba Lawyers) claims that the Defendant/ Applicant is indebted to him the sum of K3, 650.00 being for the legal services provided to him by the complainant.

2. The brief back ground of the matter which are not in dispute are as follows. The complainant Mr. D. Umba started practising on his own as Umba Lawyers since 01 February 2007. Prior to that he was a practising lawyer in the employment of the Acanufa & Associates since April 1996. On the 3 February 2000 Mr. Thomas Koral while driving from Goroka to Kundiawa got involved in a motor vehicle accident with another vehicle. Thomas Koral then engaged the Acanufa & Associates and sued the owner of the bus Mr. Francis Puringi for damages before the National Court by filing a Writ of Summons W.S No. 1156 of 2000. That particular case was actually finalized when Mr. Denis Umba was resigned his employment with the Acanufa & Associates on 31st January 2007. An arrangement was reached between Mr. Lawrence Acanufa of the Acanufa & Associates and Mr. Denis Umba that Mr. D. Umba will carry on working on all Acanufa & Associates litigation files that are still pending in Court under Umba Lawyers. One of those files includes the W.S No. 1156 of 2000 between Thomas Korul –v- Francis Puringi & 1 OR.

3. There is no evidence before this Court that the proceedings before the National Court on W.S No. 1156 of 2000 have been finalized by the National Court. None of the parties have produced before me of the copy of the National Court order of that proceedings to proof that those proceedings have actually been finalized.

4. The Defendants/ Applicant, Mr. Thomas Korul in paragraph 6 of his Affidavit dated 02 August 2007 in support of this his application says that Umba Lawyers did not exist before February 2007 and the work claimed in the cost memorandum is for the work done from 08 December 2000 to 8 March 2002 while Mr. D. Umba was employed by the Acanufa & Associates. For that reason Mr. T. Korul argues that he is obligated to pay legal costs to the Umba Lawyers and he submitted through his lawyer Mr. K. Pilisa to have the substantive proceedings dismissed as he has no legal relationship with the Umba Lawyers.

5. Mr. D. Umba for the Complainant/ Respondent submitted that the Applicant’s arguments are misconceived. He submitted that in the substantive proceedings (Complaint No. 125 of 2007), the defendant Thomas Koral has already filed his defence and the cross-claim and the complainant Umba Lawyers have filed reply to those and his own affidavit. That being the case the substantive proceedings must proceed to be heard in a trial proper rather than by way of a notice of motion. And he asks this Court to dismiss the Defendant/ Applicants notice of motion.

6. I have considered this application. From the facts set out above of the back ground of the case, I am not satisfied that the proceedings before the National Court on W.S No. 1156 of 2000 have been finalized. That proceeding is still pending. Supposing that the proceedings were finalized by the National Court before February 2007 that is to say that the proceedings were finalized while the Applicant Thomas Koral was represented by the Acanufa & Associates, then the Umba Lawyers would have no right of the claim for the Legal Costs. It is a different scenario where the proceedings are still pending before the National Court and this particular file had been handed over by the Acanufa Associates to the Umba Lawyers to continue and complete the litigation.

7. In a situation where the proceedings before the National Court is still pending and the plaintiff (Thomas Koral) decides to withdraw his file from the Umba Lawyers and wants to have his litigations attended to by the Acanufa & Associates, then in my view the Umba Lawyers would have no right to claim costs from him. However if the plaintiff (Thomas Koral) decides to engage another law firm instead of his former law firm (the Acanufa & Associates) then either the Acanufa & Associates or the Umba Lawyers would have the right to claim legal costs against him for withdrawing the file from either of them.

8. It appears to me that the proceedings on W.S No. 1156 of 2000 is still pending before the National Court. There is no evidence before me that the applicant Thomas Koral has withdrawn or is intending to withdraw his file from the Umba Lawyer in preference to another law firm beside the Acanufa & Associates. On that basis I am of the view that the application by Thomas Korul (Defendant) is misconceived and must be dismissed. The substantive proceedings must proceed to a trial proper to consider that cause of action. I make an order that this application be dismissed and that the substantive complaint proceed to trial before another magistrate.

For the Complainant – Mr. D. Umba of Umba Lawyers
For the Defendant – Mr. K. Pilisa of Pilisa Lawyers