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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 491 OF 1997
APPLICATION FOR REVIEW BY MARTIN NEGAI
Waigani
Kapi DCJ
6 July 1998
16 October 1998
INSOLVENCY - application for review under s 150 Insolvency Act
Counsel
Applicant in Person
R Riddle for PNGBC
16 October 1998
KAPI DCJ: This application originated as a judicial review under O 16 of the National Court Rules. Leave was granted and the matter came before me on substantive judicial review.
However, when the matter came before me, it became clear that the true nature of the application is an application to review an insolvency order made under the Insolvency Act (Cap. 253) (hereinafter referred to as the Act), s 150.
The relevant facts for the purposes of this application are as follows. On the 24th September 1994 a summary judgement was entered against Mr Martin Negai (hereinafter referred to as the Applicant) for K177, 347.41 in WS 743 of 1992.
On the 25th October 1994, the applicant appealed against this order to the Supreme Court. This appeal was dismissed for want of prosecution on the 29th April 1996.
On 15th May 1996, the Papua New Guinea Banking Corporation (hereinafter referred to as the Respondent) served a creditor’s petition to adjudge the applicant insolvent under the Act. The insolvency proceedings were heard and the applicant was adjudged insolvent on 27th August 1997.
The applicant has made this application to review the insolvency order under s 150 of the Act:
“The Court may review, rescind or vary any order made under this Act.”
The nature of the application before me is to rescind or quash the insolvency order on the basis that payments have been made to off-set the judgement debt and that this evidence was not brought to the attention of the Court that made the insolvency order. Parties may call evidence before me on this issue (see Re Suffiled v Watts (188) 2 QB 693). The parties filed affidavits in support of their respective positions.
Mr Negai’s application is based on the submission that the summary judgement was wrongly entered against him in that there were four partners who owed this money to the bank. He submits that if there is any money owing, it is owed by all the partners and therefore the amount he personally owes is much less than the amount entered in the summary judgement.
Counsel for the respondent submits that it is not open to this Court to question the correctness of the summary judgement. The onus is on the applicant to satisfy the Court why the insolvency order should be rescinded or quashed. He submits that in order to do this the applicant must show that as at the time of the insolvency or since the order, he has satisfied the judgement debt. He submits that the evidence is that the amount of debt has not been fully paid and there is a substantial amount of money that is still owing and therefore I should dismiss the application.
I find that it is not open to this Court to question the summary judgement. A judgement may be set aside upon application under the National Court Rules or by way of an appeal to the Supreme Court. The applicant did appeal but his appeal was dismissed for want of prosecution. He has exhausted that right.
He has not pursued any application to set aside the judgement under the Rules. In my view he cannot now by way of application for review under s 150 of the Act question the summary judgement.
The question before me is whether there are any grounds upon which I should rescind the insolvency order. The evidence is that when the application was made to adjudge the applicant insolvent, he owed a total of K150, 227.30. The applicant has not led any evidence to show that he had set off this debt. There is evidence to show that other payments have been made which were not taken into account at the time of the insolvency order. According to the calculations made by counsel for the respondent on the basis of the evidence, there is a balance of K122, 000.00 still owing on the debt. This amount does not take into account the interest owing on the outstanding amount.
Therefore I find that the applicant has failed to prove any ground upon which I should rescind the insolvency order. For these reasons I dismiss the application for review with costs.
Applicant in Person
Lawyers for PNGBC: Gadens Ridgeway
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URL: http://www.paclii.org/pg/cases/PGNC/1998/99.html