Kupal v Vui [2001] PGNC 91; N2112 (22 May 2001)

N2112

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS N0. 217 OF 1999

BETWEEN:
THOMAS KUPAL

Plaintiff

AND:

NANCY VUI

First Defendant

AND:

NATIONAL HOUSING CORPORATION
Second Defendant

Mount Hagen: Davani J
2001: 18 & 22 May

PRACTICE AND PROCEDURE – Plaintiffs application to vary default judgment on an unliquidated amount – Defendants Application to set aside same default judgment – Necessary to determine if judgment is for a liquidated or unliquidated amount –– A Default judgment regularly entered should be set aside if the Defendant is not fore warned of the application for default judgment, if the Defendant has a meritorious Defence and if there is no delay in filing the application to set aside default judgment.

Cases Cited:
Dempsey v Project Pacific Pty Ltd [1985] PNGLR 93 (SC291)
Paterson v Wellington Free Kindergarten Association Incorporated [1966] NZLR 468 at 471.

Other Texts:
1982 Annual Practise para 6/2/49
Practice Direction (National Court Rules) 1 of 1987

Counsel:
J Kunai, for the Plaintiff
H Kapal, for the Defendants

22 May 2001

DECISION
(Interlocutory Applications)

DAVANI J: There are two applications before me:

- The Plaintiffs application to vary default judgment ordered on 17 June 2000.

- The Defendants application to set aside the same Default Judgment.

The both applications were heard together. The Plaintiffs argue that the claim is a liquidated claim and that Default Judgment must be varied to read that Default judgment be entered in the amount claimed in the Writ.

In relation to the Defendants application to set aside, Mr Kunai concedes that the Defendants were not forewarned when the Plaintiff applied for Default Judgment. They also argue that the Defendant must explain or put forward reasons:

- For the delay in filing the application to set aside
- Whether there is a meritorious defence

In relation to the Plaintiffs application to vary, he claims that the claim is a liquidated one. For the court to be satisfied that the claim is liquidated, there must be evidence before the Court to prove that. The affidavit of Kumuro Suno sworn on 21 August 2000 and filed on 28 August 2000 does not set out the evidence. The Writ of Summons and Statement of Claim shows a claim that must be proven by evidence. It is not a liquidated claim e.g. item 4(1) on the Statement of Claim "General maintenance" where K2740.23 is claimed. How much maintenance was carried out and when? That is disputed. The claim of K2740.23 is not a clear liquidated amount and requires arithmetical calculation. I refer to the definition of liquidated demand as defined in the 1982 Annual Practise, par 6/2/4a as:

"A liquidated demand is in the nature of a debt, i.e a specific sum of money due and payable under or by virtue of a contract. Each amount must either be already ascertained or capable of being ascertained as a mere matter of arithmetic. If the ascertainment of a sum of money, even though it be specified or named as a definite figure, requires investigation beyond mere calculation, then the sum is not a ‘debt or liquidated demand’ but constitutes ‘damages’.

I also refer to the case of Paterson v Wellington Free Kindergarten Association Incorporated [1966] NZLR 468 at 471, where Barrowclough CJ, after doubting that the sum must be calculable by pure arithmetic only, without some sort of investigation, goes onto say;

"But in my opinion, there can be no doubt that, in deciding whether demand is liquidated, important factors are that it be capable of arithmetical calculation and that no investigation of the amount claimed should be necessary other then inquiry as to well established scales of charges, etc."

In Dempsey v Project Pacific Pty Ltd 1985 PNGLR 093 (SC291) Pratt, Amet and Woods JJ held,

"For the purpose of signing judgments by default, a claim is liquidated when it is ascertained or is capable of being ascertained by a simple calculation as when there is no element of assessment on judgment."

Having carefully perused the statement of claim, I consider that the claims pleaded require assessment. I will refuse that application.

In relation to the Defendants application to set aside, I note the application was filed on the 19th September 2000.

According to Mr Kapal’s affidavit of 12 September 2000, the National Housing Corporation was not forewarned by the Plaintiff when they applied to enter Default judgment, contrary to Practice Direction National Court Rules 1/87 and the case Mapmakers Pty Limited v Broken Hill Propriety Co. Ltd. [1987] PNGLR, 78. Mr Kunai concedes that the Defendants were not forewarned.

On that note I find that a regularly entered judgment was allowed to be entered by default. I then considered whether the defendant has a good defence. I note as pleaded in the draft defence that the Second Defendant has no knowledge of the alleged work and that the Plaintiff has to prove that consent or approval was obtained from the Second Defendant prior to work being carried out. This is all set out in Mr Kapal’s affidavit and the Draft Defence attached.

In relation to delay, Mr Kapal’s explanation that the file was misplaced and later found is good enough, as that is not an uncommon occurrence for the National Housing Corporation. In any event, the application was filed at least two (2) months after Default Judgment was obtained. That is a reasonable time within which to file. Furthermore, I note the application was not heard immediately after filing for reasons known to Counsel and the court and is not disputed.

My orders are that;

- I will set aside the Default Judgment of 17 June 2000;
- The Defendants are to file a Defence a week from today and to serve on the Plaintiff;
- The Plaintiff shall pay the Defendants costs of his application and the Defendants costs for opposing the application filed by the Plaintiff.

_____________________________________________________________________

Lawyer for the Plaintiff : Kunai & Co. Lawyers
Lawyer for the Defendant : National Housing Corporation