Opereba v Sam and Sons Ltd [2021] PGDC 216; DC7075 (11 November 2021)

DC7075

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]
DCC NO: 88 /2021.

IN THE MATTER BETWEEN:

KENNEDY OPEREBA.
Complainant.
.
AND.
SAM AND SONS LIMITED
Defendant.

Popondetta: Michael W. Apie’e

2021: November 11^th.

CIVIL PROCEEDINGS. Application to Set aside Ex-parte Orders.

Cases Cited:
Barker v The State [1976] PGNC 11; [1976] PNGLR 340

References:
District Court Act.
Summary Ejectment Act

Representation:
Defendant/Applicant Ms. Ilma Sam.
Complainant Respondent in person.

CAUSE OF ACTION: APPLICATION TO SET ASIDE EXPARTE ORDERS OF 15/07/21

RULING ON NOTICE OF MOTION.

Background.

1. The Complainant Mr. Kenedy Opereba filed suit before the District Court in DC 88 of 2019 ON THE 21/06/21 by way of a Default Summons upon a Complaint of a civil Debt for the payment of K3,000.00 being for monies owing on a Memorandum of Agreement (MOA) dated 16/10/2018.
   
2. The Complainant requested settlement of this amount from the Defendant but to no avail since the monies became owing and so the Complainant filed suit to recover the outstanding claimed of K3,000.00.
   
3. The Defendant is represented by the Manager Ms. Ilma Sam the principal and proprietor of the Defendant Company
   

History.

4. This matter came before me on the 08/07/21 but the Defendant was not present and I noted that the Defendant was in Default of the 48 hour’s requirement for filing Notice of Intention to Defend and so I set the matter for possible Ex-Parte hearing on the 15/07/21 if the Defendant should fail to attend and directed notice of hearing to be served on the Defendant.
   
5. On the 15/07/21, the court mentioned this matter again but the Defendant was again not present even though the Complainant allegedly told her of the adjourned date.
   
6. The Court then proceeded to hear the matter Ex-Parte since the Defendant was in Default by not filing notice of intention to Defend at least 48 hours before the mention of this case previously at 9.30am on the 08/07/21.
   
7. The Court issued the orders of 15/07/21, which is the subject of this Notice of Motion/Application.
   

Application by Defendant.

8. The Defendants Application to set aside the Ex Parte orders is based on law and therefore is properly before the Court pursuant to Section 25 of the District Courts Act.
   
9. The old National Court case of Barker v The State [1976] PGNC 11; [1976] PNGLR 340, is one of the earliest Papua New Guinea cases setting the ground Rules for Such applications as this.
   
10. In the Barker case, the National Court per Saldanha J as he then was laid down the basic ground rules for Applications under this heading and they are;
    1. There must be an affidavit stating facts showing a defence on the merits:
    2. There must be a reasonable explanation why judgment was allowed to go by default; and
    3. The application must be made promptly and within a reasonable time.
11. Many other cases have come before the National and more specifically the District Courts since the decision in Barkers case and always these three ground rules are the factors on which such applications are considered, and I intend to do just that.
    

Assessment of the case.

12. The Decision was made on the 15/07/21 and this application by the Defendant is filed on 23/08/21 and the affidavit in support on the 10/09/21 presumably after she became aware of the court order against her.
    
13. The Affidavit in support of the Notice of Motion disclosed the reasons why the Defendant was not present on the hearing dates as follows;
    
    1. During First mention of the case on the 08/07/21, Defendant traveled into Popondetta from Oro-Bay Late and was told by the Complainant that the Court had adjourned the case without setting a return date.
       
    2. The Complainant then promised to inform them of the Return date later but instead delivered the Ex-Parte Order of 15/08/21 to them.
       
    3. The Defendant also claimed in her affidavit to have repaid at least K2700.00 on the money borrowed via the MOA of 16/10/18.
14. The Complainant in his affidavit in Response dated 28/10/21 countered as that it was the Defendants obligation to find out when their matter was to be heard next and that is correct, except that on the 08/07/21, the court directed that Notice of hearing be served on the Defendant by the Complainant, thereby making it obligatory on him to issue this Notice of the next mention date on the 15/07/21 on the Defendant. The Defendant claims He did not do that!
    

Assessment.

15. I hereby would assess the Defendants application as follows;
    

Reasonable Explanation for not attending:

1. The Defendant deposed that she came late to Popondetta and was misled by the Complainant on the next mention date and so was unaware of the next date until they were caught by surprise with the Court order of 15/07/21.
   
2. I note that the Notations on the Court Depositions was for the Complainant to serve a Notice of hearing on the Defendant for the Adjournment to the 15/07/21.
   
3. On the 15/07/21, the Complainant told the Court that he had informed the Court of the mention date verbally and so the court proceeded to Ex-Parte hearing when the Defendant did not appear in Court.
   

Reasonable time.

4. The Order is issue was issued on the 15/07/21 and the Defendant filed the Notice to Apply to set aside the Ex-Parte Order on the 23/08/21 a month and 8 days later.
5. This Application for all intents and purposes is made within reasonable time.
   

Defense on Merits.

6. The Defendant claims that she has repaid K2700.00 on the loan agreement whilst the Complainant claims the K2700.00 relates to the interest only and the K3000.00 ordered by the Court is the principal amount owing on the MOA.
   
7. This Difference in opinion on the amount owing and amount paid already is a bone of contention that ought to be subject to substantive deliberations for the Court to better understand and adjudicate on.
   

16. That being the case, I adjudge that this is a suitable case in which I should exercise my discretion under Section 25 of the District Court Act and have this the Ex-Parte Orders of 15/07/21 dealt with as follows;
    
    1. The Applicants Notice of Motion is upheld.
       
    2. The Ex-Parte Order(s) of 15/07/21 is hereby Set Aside for now.
       
    3. The Substantive matter of DCC NO: 88 /2019 between the Parties is reinstated for Inter-Parte hearing to commence on Monday the 13/12/21.
       
    4. No orders on costs.
       

Defendant/Applicant Ms. Ilma Sam.
Complainant Respondent in person.