Magiten v Raka [2002] PGNC 145; N2179 (12 March 2002)

N2179
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE IN MADANG]

WS NO. 636 OF 2001

BETWEEN:

OTTO BENAL MAGITEN
(Plaintiff)

AND:

KOPINA RAKA
(First Defendant)
&
GABBY RANU
(Second Defendant)
&

ELA MOTORS (PNG)

(Third Defendant)

MADANG : SAWONG J.
2002 : 13th February, 12th March

CONTRACT LAW – Accrual of cause of action – when does cause of action accrue –

FRAUDS & LIMITATION – Statute of Frauds & Limitations – S.16

CONTRACTS – cause of action accrues – limitation of time to bring action based on contract

HELD-

(1) Where the contract is to do something at a particular time or upon the happening of a contingency, and the thing contracted for is not done, the cause of action arises at the time specified or upon the contingency occurring.

(2) In this case the plaintiff’s cause of action accrued at the end of February 1995 and continued till end of February / beginning of March, 2001.

(3) As the Writ of Summons was filed on 17 May, 2001 the plaintiff’s cause of action was time barred.

(4) Accordingly the application by the Defendants is upheld and the whole of the proceedings is dismissed.

Counsel:

G. GILENG, for the Applicant/Defendants

B. TABAI, for the Respondent/Plaintiff

12th March, 2002

DECISION

SAWONG J: By a Notice of Motion the defendant/applicants moved the court for the following orders:

1. That the proceedings be dismissed as being time barred pursuant to S. 16 (1) of the Frauds and Limitations Act, 1988.
   
2. Alternatively this proceedings be stayed pursuant to O. 8 r 67 of the national Court Rules until the cost in WS No. 74 of 2001 is paid in full by the Plaintiff.
   
3. Cost of this application and if applicable, cost of these proceedings, because of solicitor/own client basis.
   

At the hearing of the application the alternative claim was not pursued. The application was therefore made on the basis that the proceedings be dismissed as being time barred pursuant to S. 16 (1) of the Frauds and Limitations Act, 1988 ("The Act").

The plaintiff/respondent opposed the application.

Mr Gileng for the applicant relies on the affidavit of Peter Kuman, sworn on the 23rd August, 2001 and filed on the same date. There has been no answering affidavit filed on behalf of the plaintiff. Thus, the only evidence relied on is the evidence contained in the affidavit of Peter Kuman. The relevant parts of Mr Kuman’s affidavit are set out in paragraphs 13 to 17 inclusive. These are as follows:

"13. Furthermore the Plaintiff’s claim is time-barred now pursuant to Section 16 of the Frauds and Limitations Act 1988.

14. I refer to the Statement of Claim in the new proceedings (WS No. 636 of 2001) which is essentially similar to the previous proceedings that was dismissed in WS No. 74 of 2001 where at paragraphs 8, 12, 15, 18 where the Plaintiff specifically states the cause of action would have arisen on or about 3 February 1995 when the Plaintiff allegedly brought in his PMV for repairs at the Third Defendant’s workshop in Madang.
    
15. The six years time limitation would have elapsed on or about 3 February, 2001.
    
16. The present proceedings (WS 636 of 2001) was filed on 17 May, 2001.
    
17. In my view, the present proceedings is out of time with respect to any allegations of breach of contract or tort as pleaded against the First, Second and Third Defendants."
    

Mr Gileng submitted that the plaintiff’s claim is time barred and therefore ought to be dismissed. He relied on S. 16 (1) of the Act.

Mr Tabai submitted that the claim is not time barred as the plaintiff’s cause of action accrued in May 1995, when the bank repossessed the plaintiff’s vehicle.

In this case the issue is when did the plaintiff’s cause of action accrued. Was it when he entered the contract with Ela Motors to repair his motor vehicle on 3 February 1995 or did the cause of action accrued on the expiration of the 3 weeks or whether the action accrued when the Finance Company reprocessed the motor vehicle in May 1995.

Section 16 of the Act reads:

"16. LIMITATIONS OF ACTIONS IN CONTRACT, TORT ETC.

(1) Subject to Section 17 and 18, and action –

• (a) that is founded on simple Contract or on Tort; or
• (b) to enforce a Recognizance; or
• (c) to enforce an award, where the submission is not by an instrument under seal; or
• (d) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture shall,
  

not be brought after the expiration of 6 years commencing on that date on which the cause of action accrued."

Section 17 is not relevant because it relates to actions in the admiralty jurisdiction of the National Court.

Section 18 is also not applicable because it is restricted "to any claim for specific performance of a contract or for other equitable relief". The claim in the Writ of Summons in these proceedings is not for a specific performance nor is it for an injunction or for other equitable relief.

Section 16 (1) provides that "an action that is founded on simple contract or on tort .. shall not be brought after the expiration of 6 years commencing on the date on which the cause of action accrued."

The expression "cause of action accrued" or "accrued" is not defined in the Act. Nor are these expressions defined in the Interpretations Act. However, the Oxford Advanced Learner’s Dictionary, 6th Edition, defines the expression "accrued" to mean (1) to increase over a period of time; (2) to allow a sum of money or debt to grow over a period of time.

In my view a useful guide is provided by a passage in Halsbury’s Laws of England, Vol. 28, 4th Edition at paragraph 662 where it is stated:

"If the contract is to do something at a particular time or upon the happening of a contingency, and the thing contracted for is not done, the cause of action arises at the time specified or upon the contingency happening."

I am of the view that this passage aptly applies to the present case. The facts in this case are not much in dispute. The essential fact is that the parties entered into a contract for repairs of the plaintiff’s motor vehicle by the defendants. An essential term of the contract was that the defendants’ were to repair the plaintiff’s vehicle within three weeks from the 3rd of February, 1995. There is also no dispute that the defendants did not had the vehicle repaired within that period as agreed. Indeed the evidence is that, it took the defendants some four months to complete the repairs to the plaintiff’s vehicle. There was therefore clearly a breach of the term of the contract by the defendants in that the defendants did not complete the repairs to the motor vehicle within three weeks from the 3rd February, 1995. When they did not, the plaintiff’s cause of action commenced to accrue.

The contract in this case was to repair the plaintiff’s vehicle within 3 weeks. The defendants’ were to do the repairs within a particular time frame. That being the case, when the repairs were not completed within that period, there was a breach of contract by the defendants. That breach occurred on the expiry of the agreed period of repairs. This as I have said occurred at the end of February, 1995. The plaintiff’s cause of action arose then. Thus, the plaintiff’s cause of action accrued from that date (that is from end of February 1995) and continued to accrue until it expired some six years later on or about the end of February or beginning of March, 2001.

The present Writ (WS 636) was issued on the 17th May, 2001. This was clearly outside the time prescribed by S. 16 (1) of the Act. That being the case the current Writ of Summons is clearly statute barred. Consequently, I would uphold the application and dismiss the proceedings as being statute barred.

In so far as question of costs are concerned, it is a discretionary matter and in the exercise of my discretion I consider that costs should not be awarded on a client / solicitor basis. However, I consider that in the circumstances the plaintiff must pay the applicants costs.

I make the following orders:

1. That the whole of Writ of Summon WS 636 of 2001 be dismissed.
   
2. The Plaintiff pay the Defendants Costs.

________________________________________________________________________
LAWYER FOR THE APPLICANT/DEFENDANT : BLAKE DAWSON WALDRON LAWYERS

LAWYER FOR THE RESPONDENT/PLAINTIFF: ACANUFA LAWYERS