Waim v Hearago [1997] PGNC 63; N1586 (21 May 1997)

Unreported National Court Decisions

N1586

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 669/96
JIM YER WAIM
v
SOSORO HEARAGO & OTHERS

Waigani

Sawong J
16 May 1997
21 May 1997

Counsel:

GL Shepperd for the Applicant

Manu for the Respondents

21 May 1997

SAWONG J: This was an application by the Applicant/1st Defendant to set aside a default judgement entered against him on 2nd December 1996.

The history of the matter is fairly short. On 4th July 1996, the plaintiff filed a Writ of Summons naming the applicant as 1st Defendant and an company called Iagufu Oil & Gas Company Pty Ltd as 2nd Defendant. In it the plaintiff claimed the sum of K130,000.00 as his fee for his involvement in the negotiations which increased the equity in the Kutubu Oil Project. That Writ was number 669 of 1996.

That Writ was duly and properly served on the applicant on 4th December 1996. Upon being served the applicant, corrected the name of the second defendant. The second defendants name was now Nama Aporo Land Owners Association.

The amended Writ of Summons was then filed on the Applicant on 10 August 1996.

The default judgement was obtained on or about 4th December 1996.

It is now well established in this jurisdiction that, in order for this Court to exercise its discretion in favour of an applicant, who seeks to set aside a default judgement, the applicant must show why default judgment, ought to be set aside. To do that the applicant must, by affidavit evidence advance a reasonable explanation as to why judgement was allowed to be entered by default, an explanation as to why there is delay in bringing the application and material adverting to a defence on its merits.

See Green & Co. Pty Ltd v Green [1976] PNGLR 73; Baker v The Govt. of PNG, & Bun [1976] PNGLR 340.

Mr Sheppard has advanced two grounds in support of his application. His first submission is that the default judgement against the 1st defendant was obtained irregularly. Consequently as a matter of right the default judgement must be set aside. He submitted that the amended Writ of Summons was never served on the applicant, and in any case the purported amendment was not made with the leave of the Court. He contends that looking at the amended Writ itself, the front page of the document states, “Amended Writ of Summons Pursuant to O 8 R 51 N.C. Rules” it shows quite clearly that no leave was granted. Mr Sheppard submits that O 8 R 51, has no application, as it relates to amendments to pleadings. That is not the case here, he submits. The essence of his submission is that the amended Writ of Summons, with the different name of the second defendant, was not served on the applicant. Consequently he submits that the default judgement was irregularly obtained or entered.

Mr Manu concedes that the name of the second defendant which was in the Writ of Summon filed on 4th July 1996 was incorrect. This was subsequently corrected by the 1st Defendant when he was served, and the proper name of the 2nd defendant was inserted, and the amended Writ, was filed on 26 July 1996.

In his submissions he conceded that the amended Writ was not served on the 1st Defendant/applicant.

Essentially he submitted that the amendment did not affect the applicant at all because, but for the substitution of the name of the second defendant, the statement of claim contained in both the original and amended Writ of Summons remain intact. He was not prejudiced in any way, and the applicant knew from the start the nature of the proceedings against him.

I have carefully considered the evidence and the submissions. I make the following findings:

1. The original Writ of Summons was between the Plaintiff, the applicant as First Defendant and Iagufu Oil & Gas Company Pty Ltd as Second Defendant (hereafter referred to as original Writ).

2. The original writ was filed on 4 July 1996.

3. This original writ was served on the applicant/ 1st defendant on or about 10 July 1996.

4. Upon being served, the applicant/Defendant, corrected the name of the second defendant and wrote the name of the correct second defendant.

5. After that, the amended writ was filed. This was filed on 26 July 1996 (the “amended Writ”).

6. After that, the amended writ was served on the 1st Defendant on 10 August 1996. ( See paragraph 2) of the affidavit of JY Wain sworn on 23rd April 1997 and filed on 24 April 1997).

7. The statement of claims in both the original and the amend Writs are exactly in the same terms. Apart from the substitution the names of the 2nd Defendant, the statement of claims are in all respects same or identical.

A closer scrutiny of the evidence in respect of the service of the amended writ shows conflicting evidence. The plaintiff says he served it on the applicant on 10th August 1996. The applicant says he was never served with it. Neither of them was called nor crossexamined on this aspect or indeed in respect of their affidavit evidence. Be that as it may, the applicant concedes that he was served the original Writ.

Plaintiff in his evidence, states in detail the date, and the venue where it was served. He says he served it on the applicant on “10 August 1996 at Vicky Stalianou’s flat, near the old American Embassy”. Compared with this is the applicants evidence, which is general thus denying that he was ever served with the amended Writ.

In this circumstance, I accept the evidence of the plaintiff as much more credible. I find that the applicant was infact served with the amended Writ.

However, I find that the plaintiff did not comply with the provisions of O 8 R 50 (1) (3) of the National Court Rules. O 8 Rule 50 (1) (3) read:

“50 (1)

The Court may, at any stage of any stage of any proceedings, on application by any party or of its own motion, order, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.

50 (3)

Where there has been a mistake in the name of a party, Sub-rule (1) applies to the person intended to be made a party as if he were a party.”

In other words, in order to substitute a name, or remove a name, the party seeking to do that must seek the Court’s permission to do so. In the present case the evidence is quite clear, that the plaintiff did not apply to the Court to remove the wrong name in the original writ and substitute it with the new name. Consequently, I must accept the submissions, by Sheppard and I grant the application.

In the circumstances, I do not consider it necessary to consider the other submissions. It follows that as the default judgement against the 1st defendant was irregular, it must be set aside.

My final order is that the default judgement ordered and entered against the 1st Defendant be set aside.

I order that, in the circumstances each party pay their own costs.