Tobiam v Nakau [2001] PGNC 141; N2054 (16 March 2001)

N2054

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO: 665 OF 2000

Between:

NICHOLAS TOBIAM
Plaintiff

And:

PETER NAKAU
Defendant

Wabag : Jalina, J.
12 & 16 March, 2001

PRACTICE AND PROCEDURE – Default judgment – Liquidated claim – Defendant filed Notice of Intention to Defend and Defence but failed to verify defence – Statement of Claim and Defence both raising triable issues – Claim not a liquidated claim – Application misconceived – Application dismissed - National Court Rules O.8, r.24 and O12, r.25.

Case Cited:
The following case is the only case cited in the judgment.

Mapmakers Pty Ltd –v- Broken Hill Pty Ltd. [1987] PNGLR 78.

Counsel:

M. Thoke for Plaintiff/Applicant
P. Potane for Defendant/Respondent

16 March, 2001.

JALINA, J. The Plaintiff filed a Writ of Summons against the Defendant on 15th June, 2000. The Statement of Claim is in the following terms:

"Statement of Claim.

01. The Plaintiff is/was at all material times a High School Teacher, comes from Kamas Village, Wabag, Enga Province and currently teaching at Wabag National High School in the Enga Province.

02. The Defendant is Private Businessman from Mapamand Village, Laiagam, Enga Province and was at all material times the registered owner of Toyota Hiace Bus Registration Number: P 184 U.

03. On or about 3rd March, 2000 the Plaintiff agreed to purchase from the Defendant, a certain 15 seater Toyota Hiace Bus having registered Number: P 184 UE for a sum of K19,5000.00 and pursuant to such agreement the Plaintiff paid to the Defendant a cash of K19,500.00 inside the Bank of South Pacific Building, Wabag, Enga Province. At the same time, the Defendant delivered the said motor vehicle to the Plaintiff.

04. In order to induce the Plaintiff to purchase the said Toyota Hiace 15 Seater Bus, the Defendant represented and stated the following words:

"My 15 Seater Bus is in very good condition. Suppose the bus had any problem, I would have repaired it (fixed it) or replace the parts with another similar model bus in my yard, but since there is no mechanical problem with the bus, I personally guarantee that you will recover the K19,500.00 by running PMV service within a year."

05. It is alleged that after the Defendant had left, the Plaintiff and his wife discovered that the said Toyota Hiace bus was not mechanically good condition, in that it had an accident before and had problem with the steering rod, unbalanced wheels, bold tyres, malfunctioning of meter gauges, defective signals, poorly welded chairs and body about to fall apart, etc.

06. The said representations were not true to the knowledge of the Defendant and the Plaintiff says that the Defendant had deliberately made false statement which had induced the Plaintiff to buy the said motor vehicle.

07. The Plaintiff after knowing that it was mechanically defective vehicle on 4th March, 2000 he tried to locate the Defendant at Wabag Town and asked for refund of K19,500.00, but failed, because he (Defendant) hide himself at his Village, Laiagam.

08. On or about 7th March, 2000 the Plaintiff’s wife met the Defendant at Wabag town and told him of the mechanical problems with the said motor vehicle and requested for refund of the K19,500.00, but the Defendant refused to refund the same and fled for good. The Defendant was totally defiant to every approaches initiated by the Plaintiff.

09. In consequence thereof the Plaintiff has been deprived of the use of the said motor vehicle to recover his purchase price of K19,500.00 together with the projected profit and thus suffered economic loss and damages.

AND THE PLAINTIFF CLAIMS:-

a. Refund of Principal Money paid

to Defendant K19,500.00

b. Refund of cost Mechanical Repairs

prior to repossession, and 1,600.00

100. Interest pursuant to Judicial Proceedings (Interest on Debt and Damages Act, Chapter 52) Interest on Damages and Debts Act.
     

4. Costs of these proceedings.
   
5. Such further other orders the court deems fit."
   

The Defendant filed his Notice of Intention to Defend and Defence on 27th September, 2000. The Defence is in the following terms.

"Defence

The Defendant pleads as follows to the Plaintiff’s Statement of Claim:-

1. The Defendant admits Paragraphs 1 and 2.
   
2. The Defendant admits Paragraph 3 and further states that he initially wanted to sell the bus for K22,000.00 but later sold it to the Plaintiff for K19,000.00.
   
3. The Defendant denies Paragraph 4 and further state as follows:-
   
   1. The Plaintiff requested the Defendant to drive the said bus to Wabag Secondary High School on three different occasions and had physical inspection done on the vehicle himself.
      
   2. The Plaintiff had test drive and requested that he be given lift to Wabag twice to get a fell of the vehicle’s running condition.
      
   100. The said bus had extras such as window shield and tinted glass and was in fact in good running condition, therefore the offered to pay me K19,500.00 less K2,500.00.
        
   4. The Defendant denies giving him any personal guarantee for one year which is unreasonable since Ela Motors the only dealer of Toyota hiace bus does not even give one year warranty on new vehicles sold out to mention second hand vehicles.
      
4. The Defendant denies Paragraph 5 and further state that the Plaintiff operated the said bus as PMV for several months before he smashed the backside of his bus.
   
5. The Defendant further denies Paragraph 6 and further state that the vehicle was in fact in good condition.
   
6. The Defendant denies Paragraph 7 and further states that he is a policeman based at Laiagam and comes frequently to Wabag and operate another PMV himself as such he denies hiding himself in his Village at Laiagam.
   
7. The Defendant denies Paragraph 8 and repeats the Defence in Paragraph 6.
   
8. The Defendant denies Paragraph 9 and further state that even after issuing of this Writ of Summons, the Plaintiff is seen operating the bus as PMV therefore this is an abuse of the court process.
   
9. The Plaintiff is not entitle to the amount claimed or any amount at all."
   

The Defendant however, did not verify his Defence within the time prescribed by the National Court Rules. The Plaintiff has by motion sought to have the court enter default judgment against the Defendant on the basis that the claim was a liquidated claim and the Defendant has failed to verify his Defence within the time prescribed by the Rules. He relies on O8, r24 (1) and O12, r,25 (c) of the Rules. Order 8, r24 (1) provides:

"24. Defence: Verification. (15/23)

(1) Where a Plaintiff, by his Statement of Claim, makes a claim against a Defendant for a liquidated demand, but not other claim, and the Statement of Claim bears a note requiring the Defendant to verify his Defence, the Defendant shall verify his defence, that is to say, he shall, within the time limited for filing his Defence, file an affidavit verifying his Defence to the claim in accordance with this Rule."

Order 12, r25 (c ) provides:

"25. Default. (17/2)

A Defendant shall be in default for the purposes of this Division –

(c) where he is required under Order 8 Rule 24 to verify his defence and the time for him to verify his defence in accordance with that Rule has expired but he has not so verified his defence."

The Defendant has filed an affidavit in which he says that the reason he did not file an affidavit verifying his Defence was that his lawyer did not advise him to do so. His lawyer Mr. Potane has admitted to this Court of his failure but said that he thought that the claim was not a liquidated claim so a verified Defence was not necessary. Mr. Potane further submitted that the Plaintiff has, through his lawyer, failed to forewarn him as required by the principle in Mapmakers Pty Ltd –v- Broken Hill Pty Ltd [1987] PNGLR 78 prior to making this application.

Mr. Thoke has submitted that the rules were clear and that the Defendant was clearly in default through his failure which he has conceded through his lawyer, Mr. Potane.

I am however not satisfied that the Defendant has defaulted. From my perusal of the Statement of Claim and the Defence it appears that the claim is not a liquidated claim at all but an unliquidated one as it raises triable issues. For instance, in Paragraph 4 of the Statement of Claim the Plaintiff refers to certain representations made by the Defendant but the Defendant says in his Defence that the Plaintiff inspected the vehicle and also had test driven it. This clearly requires each party’s assertions to be tested at trial.

In relation to Paragraph 5 of the Statement of Claim the Plaintiff alleges that the vehicle was defective at the time of sale whereas the Defendant alleges in his Defence that the damage to the vehicle was caused while it was being operated by the Plaintiff for a number of months. So the condition of the vehicle at the time of sale needs to be proven at trial.

Even in relation to Paragraphs 6, 7 and 8 of the Statement of Claim, the Defendant disputes those allegations in his Defence thus requiring those matters to be resolved at trial.

I am therefore of the opinion that the present application by the Plaintiff has been misconceived. I accordingly dismiss it.

I order that the Defendant’s costs of and incidental to this application be paid by the Plaintiff.
____________________________________________________________________
Lawyer for the Plaintiff/Applicant : Michael C. Thoke Lawyers
Lawyer for the Defendant/Respondent : Pato Potane Lawyers