Pacific Helicopters Pty Ltd v Department of North Solomon [1998] PGNC 68; N1815 (24 July 1998)

Unreported National Court Decisions

N1815

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 345 OF 1995
BETWEEN
PACIFIC HELICOPTERS PTY LTD
PLAINTIFF
AND
DEPARTMENT OF NORTH SOLOMON
FIRST DEFENDANT
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
SECOND DEFENDANT

Goroka

Sawong J
17 July 1998
24 July 1998

PRACTICE & PROCEDURE - Summary judgement - Evidence of facts on which claim is based - Admission - Sufficiency of - Contained in letters exchanged between parties - claim for moneys owing for helicopter hire services provided - Summary Judgement entered - National Court Rules O. 12 r. 38

PRACTICE & PROCEDURE - Default Judgement - Defendants default in filing defence - Judgement entered - National Court Rules.

Cases Cited

Tsang v Credit Corporation (PNG) Limited [1993] PNGLR 112

Chief Collector of Taxes v T. A. Field Pty Ltd [1975] PNGLR 144

NOTICE OF MOTION

This was an application on notice by a plaintiff seeking summary judgement and in the alternative de ault judgement in respect of a claim for moneys owing for helicopter hire services.

Counsel

L. Manua, for the Plaintiff

No appearance for the Defendants

24 July 1998

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SAWONG J: The Plaintiff is matter iser is seeking summary judgement, and in the alternative default judgement under O. 12, r. 38, r. 32, respectively of the National Court Rules. The cis for moneys owing fing foicopter services provided tded to the defendants at the request of the defendants. The statement of refers ters to and sets outain invoices, the amounts and the dates on which those sere services were rendered to the defendants.

O. 12 r. 38 is in the fing terms:

“38. ҈ Summary Judg Judgemudgement

(1) &#Where, on application by n by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff:

(a) ټ&#there; is nce of the facts on which theh the clai claim or m or part part is based; and

(b) ـ there id evideiven iven e plaintiff or by some ҈ responsibonsible pele pele person that, in the belief of the on githe ece,defendant has has no defence to theo the clai claim or m or part, or no defence except as to t60; amount ount of any damages claimed,

the Court ma order, direct the entry of such judgement for the plaintifintiff on that claim or part, as the nature of the case requires.

(60; #160; Without limitibg Sue rule (1), the Court may under that Sub-rule direct the entry of judgement for the plaintiff for damages to be assessed.

(3) In this,rule22ama;dses” includes the value of goods.”

The principles involved in this particular rule is succinctly set out in the Supreme Court decision in Bruce TsaCrediporatPNG) Limited [1993[1993] PNG] PNGLR 112. There the court said at17; 117;

“...There are two elements involved in this rule:

(a) &&#160re ie evid evidence once of the facts on which the claim or part is based; and

160; &#1660&#1hat thet the plainplaintiff or some responsible persons give evidence that in his belief there is no defence.

In thse, tis no issue in relation to the first elements.

As to the second element, tnt, the plhe plaintiff must show in (the) absence of any defence or evidence from the defendant that, in his belief, the defendant has no defence. If a defence is filed or evidence is given by the defendant --- the plaintiff must show that, upon the facts and/or the law, the defendant has not defence.; The plaintiff will not be entitled to summary judgement if there is a serious conflict onct on question of fact or law. Whethcase should go to trio trial on these issues will be determined on the facts of each case. Howethe authorities show thow the summary jurisdiction should only be involved in a clear case: hief Collectllector of r of Taxes v T. A. Field Pty Ltd

I would adopt and apply these pese principles to the present case.

Counsel for the plaintiff has sted that on the uncontestedested evidence given by the Managing Director of the plaintiff and by Mr Manua of counsel, both elements of this rule have been satisfied and that as such the court ought to direct entry of summary judgement against the defendants.

The evidence from Mr Smith, the Managing Director of the plaintiff is clear and unequivocal. He gives detailed eviden h in his affidavit of the debt and his discussions with senior official of the defendants including the then Deputy Prime Miniswho acknowledge the outstanding debt, due and payable to the plaintiff. Mr Smith fina finally&#dep; deposed that in his belief the defendants have no defence at all.

Mr Manua, counse tfor the plaintiff also deposed an affidavit. In hisdavit, he es to the the fact that he held discussions with with the Solicitor General Mr J. Kawi, who acknowledge the debt and admithat tfendants have no e no defence at all to the plaintiff’s claim.

I am satisfied fied on the undisputed evidence given on behalf of the plaintiff that it is entitled to the benefit of the clear evidence on liability and quantum. I find that the tiff is enis entitled to summary judgement under O. 12 R. 38, in the sum of K1,236,111.85.

In case, I am wrong on this, Ilso satisfied that the defendants have defaulted in filing their defences. The evidenvidence shhat afat after they filed their Notice of Intention to Defend, they have not filed their defence. Accordingly, I would also find that the plaintiff is ent to have judgement entered against both defendants jointly ntly and severally.

In so far as the claim for interest is concern,; I accept the submissions made on behalf of the plaintiff.tiff. I award interest at the rate ght percent (8%)&(8%) per annum the date of the the filing of Writ to the date of the payment of the judgement debt in full.

I Order that SumJudgebe en against the Defendants jointly and sevd severallerally in the sum of K1,236,111.85 togethegether with interest at the rate of 8% per annum from the date of filing of the Writ to the date of the payment of this judgement debt in full.

Costs shall follow the event.

Lawyers for the Plaintiff: Fiocco Posman & Kua

Lawyers for the Defendants: No appearance