Coffee Industry Corporation Pty Ltd v Kewa [1998] PGNC 66; N1822 (24 July 1998)

Unreported National Court Decisions

N1822

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 08 OF 1997
BETWEEN
COFFEE INDUSTRY CORPORATION PTY LTD
PLAINTIFF
AND
PETER KEWA
DEFENDANT/APPLICANT

Goroka

Sawong J
10 July 1998
24 July 1998

PRACTICE & PROCEDURE - Application to set aside default judgement - Principles Applicable - Defence on merits to be particularised - Application must be promptly and a reasonable explanation as to why default judgement was allowed to be entered.

Cases Cited

Green v Green [1976] PNGLR

Baker v Government of PNG & Others [1976] PNGLR 340

Counsel

C. Nidue, for the Applicant (Defendant)

K. Peri, for the Respondent (Plaintiff)

24 July 1998

SAWONG J: This is an application under O. 12 r. 35 of the National Court Rules to set aside a default judgement entered against the defendant for failing to file his Notice of Intention to Defend and Defence within the times allowed for by the said Rules.

The action was commenced by Writ of Summons issued on 8 January 1997. The claim was for a liquidated demand being moneys lent to the Applicant in the sum of K53,419.04. Particulars of the amounts and the dates when those were given to the applicant are set out in the writ.

The said Writ was served on the defendant/applicant on 13 February 1997. An affidavit of service was filed on 27 February 1997.

On 10th March 1997, the applicants previous lawyer sent by mail the Notice of Intention to Defend to the Assistant Registrar of the National Court in Goroka, for filing. This was received and filed on 21 March 1997.

On 12 March 1997 the said lawyer sent by mail the applicants defence to the said Assistant Registrar for filing. This was filed on 19 March 1997.

On 21st March 1997, a default judgement was entered against the defendant for failing to file his Notice of Intention to Defend and or his defence within the time required by the Rules. According to the said Writ, and the Rules the applicant was required to file his notice of Intention to Defend within 30 days from the date of services of the said Writ. He then had a further 14 days from the expiration of the 30 day period to file his defence. Accordingly in this case he had 30 days from 13 February 1997 to file his Notice of Intention to Defend. This meant that he had till the 13 March 1997 to file the said notice of intention to defend. He then had a further 14 days from 13 March 1997 to file his defence.

On 13 March 1997, a search was conducted at the Goroka Court Registry and it was discovered that the defendant had not filed his notice of intention to defend. The application for entry default judgement was made on 21 March 1997, and it was granted to them.

In applying for entry of default judgement, the plaintiff relied on O. 12 R 25 (a) of the Rules which provides that:

“25. Default

A defendant shall be in default for the purposes of this Division:

(a) Where the originating process bears a note under O. 4 R. 9, and the time for him to comply has expired but he has not given the notice ----”

O. 4 R. 9 is in the following terms:

“1. Notice of Intention to Defend

(1) Where there is a defendant, an originating process (other than a originating summons under rule 26) shall bear a note that the defendant is liable to suffer judgement or an order against him unless the prescribed form of notice of his intention to defend is received in the Registry.

(2) The role under subrule (1) shall specify the time limited for the giving of the notice.”

In this case, the Writ complied with O 4. R. 9 (1) and (2). It stated the time limit at 30 days for the date of service of Writ for the applicant to file his Notice of Intention to Defend.

As I have said earlier, the applicant clearly did not file his Notice of Intention to defend within the time limit set out in the Writ. Having failed to do so, the plaintiff was entitled to have judgement entered against him.

I have considered this matter in some detail, because in cases of this nature the first question to be considered is whether or not the judgement was regularly entered. If it was irregularly entered than such a judgement would set aside as a matter of course. If however the judgement has been regularly entered then other considerations apply and I will refer to those shortly.

In the present case, I am satisfied that the judgement was regularly entered. Consequently, I now turn to consider the basis of the present application.

The principles relating to setting aside a regularly entered judgement are well settled in this jurisdiction. There are essentially three relevant and applicable principles. The first and principal matter that must be shown by the applicant is that he has a defence on the merits. In other words, there must be an affidavit deposed to by the applicant stating facts showing a defence on the merits.

The second is that there must be reasonable explanation as to why default judgement was allowed to go by default.

Finally the application must be made promptly and within a reasonable time. See Green v Green [1976] PNGLR, Baker v Government of PNG & Others [1976] PNGLR 340.

I deal with the last two principles first as they relate to the facts and submissions that were made. The evidence is quite clear. As at 13 March 1997 the defendant had clearly not filed its notice of intention to defend. It is not clear as to when he went and gave instructions to his lawyers after he was served with the Writ. There is no explanation as to why default judgement was allowed to be entered. The evidence is that his former lawyer sent the said notice by mail. Why that occurred is not clear, because the said lawyers could easily have sent the said notice by facsimile transmission to the Assistant Registrar.

I am satisfied that this application was made promptly, given the undisputed evidence that he was served with the order of this court only in April 1998.

The remaining issue to be decided is whether the applicant has shown any defence on the merits. The first thing to note is that the applicant has not sworn any affidavit stating facts showing a defence on its merits. The draft defence which was filed out of time and which relied is on in this application is a very basic and very general denial. The bold assertion made in the so called defence cannot be regarded as sufficient to meet the requirement that the affidavit must state facts showing a defence on the merits.

For these reasons, the application is dismissed with costs.

Lawyers for the Plaintiff: Warner Shand

Lawyers for the Defendant: Matthew Porani Tamutai