Nosrida Ltd v Nima Holdings Ltd [2010] PGNC 229; N3856 (5 February 2010)

N3856

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1254 OF 2006

BETWEEN

NOSRIDA LIMITED
Plaintiff

AND

NIMA HOLDINGS LIMTED
Defendant

Lae: Gabi .J
2010: 5th February

PRACTICE & PROCEDURE – Applications under O 9 r 30 and O 12 r 38 are different and distinct – Admission must be clear - Where there is denial or dispute an application for judgment based on admissions should not be readily granted.

Cases cited:
Papua New Guinea Cases

Alfred Daniel v Pak Domoi Ltd (2009) SC 970
Chief Collector of Taxes v T.A. Field Pty Ltd [1975] PNGLR 144
Curtain Brothers (Qld) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285
Dep International Private ltd v Ambogo Sawmill Pty Ltd [1987] PNGLR 117
Kumul Builders Pty Ltd vs. Post and Telecommunication Corporation [1991] PNGLR 299
Tsang v Credit Corporation [1993] PNGLR 112

Overseas Cases

Ash v Hutchinson & Co. (Publishers) Ltd [1936] Ch 489
Ellis v Allen [1913] UKLawRpCh 144; [1914] 1 Ch 904

Counsel

S. Tedor, for the plaintiff
J. Kais, for the defendant

RULING

5th February, 2010

1. GABI, J: Introduction: There are two (2) motions on notice before the Court. The first one is the plaintiff's application for judgment while the second one is the defendant's application for further and better particulars.

2. By a notice of motion filed on 11th May 2009, the plaintiff seeks the following orders:

"1. Judgment be entered in favour of the Plaintiff against the Defendant for the sum of One Hundred and Twenty Seven Thousand Three Hundred and Twenty Three Kina Fifty Five Toea (K127, 323.55) being part of the amount claimed in these proceedings pursuant to Order 9, Rule 30 of the National Court Rules; or, alternatively;

2. Judgment be entered in favour of the Plaintiff against the Defendant for the sum of Ninety Eight Thousand Two Hundred and Twenty Kina Eighty Five Toea (K98, 220.85) being part of the amount claimed in these proceedings, pursuant to Order 9, Rule 30 of the National Court Rules.

3. Interest is assessed on the amount adjudged at 10% per annum, commencing September 30th 2004 up to the date of settlement or judgment.

4. The matter be set down for trial on the amount outstanding under the Writ of Summons.

5. The Defendant pays the costs of these proceedings.

6. Such other orders the Court see fit to impose.

7. The time be abridged from the time of the making of the orders to the time of settlement by the Registrar which shall take place forthwith."

The Evidence

3. The following affidavits were filed: (i) three affidavits of Michael Peter Chan dated 15th May 2007, 5th July 2007 and 4th June 2009 respectively; (ii) affidavit of Kenneth Hugh Rohan dated 7th June 2007;
(iii) affidavit of Sialis Tedor dated 5th May 2009; and (iv) affidavit of Joseph Kais dated 4th June 2009.

The Claim

4. The claim arises out of a contract for the construction of a warehouse at Section 20 Allotment 1, Malaita Street, Lae City. The agreement is partly written and partly oral. The plaintiff claims that between March and October 2004, it provided services, including variations requested by the plaintiff and approved by the defendant, to the tune of K1, 236, 321.49 and the defendant has so far paid K1, 046, 692.15. It seeks the balance of K189, 629.39.

5. The defendant states that the agreement was to build the warehouse according to the Approved Design for the contract sum of K1, 165, 813.00, that the warehouse was to be completed by 1st August 2004 and that it would withhold 10% of the contract sum until the warehouse was completed to its satisfaction. It says that the warehouse was not constructed according to the Approved Design nor was it completed by 1st August 2004. It admits paying the plaintiff the sum of K1, 067, 592.15, but denies requesting variations for an amount totaling K1, 235, 321.49 and owing an outstanding balance of K189, 629.34.

6. The plaintiff relies on paragraphs 16 and 32 of the affidavit of Michael Hugh Chan dated 5th July 2007 to argue that there are admissions of facts to warrant entry of judgment. I believe the relevant paragraphs are 16, 17, 32 and 67, which are set out hereunder:

"16. The agreed price plus GST of K1, 165,813.00 less K1, 067, 592.15 paid leaves a balance of K98, 220.85

17. Annexed hereto marked "C" is a statement of summary faxed by Nosrida to Nima on 13/08/04, stating that as at that date an outstanding balance of K98, 218.65 was due and outstanding – this is consistent with Nimas records...

32. On or about 8/10/04 I attended to Nosridas office to see Mr. Rohan. He was not available so I spoke to a Ms. Susan, his secretary and gave her a list of Nimas claim against Nosrida at that time for about K151, 030.54 and requested Nosrida raise a cheque payable to Nima for that sum, and advised that Nima would raise a cheque payable to Nosrida for K127, 323.55 and we would simply swap cheques to settle the matter...

67. I refer to the preceding paragraphs 15 – 46 of this my affidavit and repeat, Nosrida never completed the job, and in fact owe Nima more money than the amount Nima owes them."

7. In his affidavit dated 4th June 2009 in response, Michael Hugh Chan deposes that the plaintiff did not construct the warehouse according to the Approved Design nor did it complete construction of the building by 1st August 2004, that the sum of K98, 220.85 is the amount the defendant would have owed the plaintiff had it constructed the warehouse according to the Approved Design and on time as agreed, that as a result of the failure to construct the warehouse according to the plan it had incurred liquidated loss of K172, 678.77 to date, that the sum of K151, 030.54 was the loss as it stood at July 2005 and that the sum of K127, 323.55 consists of K98, 218.65 and K29, 104.90, which was the cost of four variations agreed to by the defendant.

8. It is clear to me that both parties owe the other an amount of money; the exact amount is in dispute at present. The respondent claims that the building was not built according to the plan and not completed on time. As a result, additional costs were incurred. Secondly, the applicant is seeking judgment for the higher amount of K127, 323.55, which raises the question of whether the alleged "admissions" are "clear and unambiguous."

Judgment

9. The application is made pursuant to Order 9 Rule 30 of the National Court Rules. It provides:

"30. Judgement on admissions. (18/3)

(1) Where admissions are made by a party, whether by his pleading or otherwise, the Court may, on the application of any other party, direct the entry of any judgement or make any order to which the applicant is entitled on the admissions.

(2) The Court may exercise its powers under Sub-rule (1) notwithstanding that other questions in the proceedings have not been determined."

10. The application for "summary judgment" under Order 12, rule 38 and the application for "judgment" under Order 9 rule 30 are quite different and distinct in the sense that the principles governing their application are different although they have a common resultant effect and that is, they dispose off proceedings in a "summary way".

11. In an application for summary judgment under Order 12, rule 38, an applicant must show that: (i) there is evidence of the facts proving the essential elements of the claim; and (ii) that the applicant or some responsible person gives evidence that in his belief there is no defence (see Tsang v Credit Corporation [1993] PNGLR 112). If an applicant is able to establish these two elements, summary judgment may be granted without a need for a full trial.

12. The authorities clearly show that the discretion conferred on the Court by O 12 r 38 should be exercised in a clear case and with considerable care. Summary judgment should be granted only where there is no serious triable issue of fact or law. If there is no dispute as to fact and the law is clear then judgment must be entered for the plaintiff (see also the Chief Collector of Taxes v T.A. Field Pty Ltd [1975] PNGLR 144; Dep International Pty Ltd v Ambogo Sawmill Pty Ltd [1987] PNLR 117; Curtain Brothers (Qld) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285).

13. In an application for judgment under Order 9, rule 30, judgment is entered based on admissions. The respondent disputes the amount owed, which to my mind, demonstrates non admission. There is no doubt in my mind that there is a dispute between the appellant and the respondent over the amount of money owed. The respondent claims that the building was not built according to the plan and not completed on time resulting in additional costs to it. These are issues which in my view cannot be disposed off in a summary way. There has to be a proper trial conducted to properly determine these issues.

14. By operation of the words "or otherwise" used in Order 9, rule 30, I accept the respondent's submission that this phrase covers affidavit evidence. The respondent has denied the allegations of the applicant. Where there is denial either by pleadings or affidavit evidence, an application for judgment based on admissions should not be readily granted: Alfred Daniel v Pak Domoi Ltd (2009) SC 970.

15. The admissions may be expressed or implied; they must be clear and unambiguous if they are to found a judgment: Ellis v Allen [1913] UKLawRpCh 144; [1914] 1 Ch 904; Ash v Hutchinson & Co (Publishers) Ltd [1936] Ch 489. In Ash v Hutchison & Co (Publishers) Ltd (supra), Greene L.J said at 503:

"A plaintiff who relies for the proof of a substantial part of his case upon admissions in the defence must, in my judgment, show that the matters in question are clearly pleaded and clearly admitted; he is not entitled to ask the Court to read meanings into his pleadings which upon a fair construction do not clearly appear in order to fix the defendants with an admission."

16. I am not satisfied that this is a clear case. Accordingly, I dismiss the application for judgment.

Further and Better Particulars

17. I believe this matter is ready to proceed to trial. I order that the plaintiff file and serve the defendants further and better particulars of its amended statement of claim within twenty one (21) days commencing today.

18. Costs of the applications be in the cause.

__________________________________________________
Sialis Tedor & Associates Lawyers: Lawyer for the plaintiff
Pryke & Jansen Lawyers : Lawyer for the defendant