Finance Corporation Ltd v Kabiu Guards & Security Services Ltd [2013] PGNC 135; N5326 (2 April 2013)

N5326

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

W.S. NO. 1058 OF 2011

BETWEEN:

FINANCE CORPORATION LIMITED
Plaintiff

AND:

KABIU GUARDS & SECURITY SERVICES LIMITED
First Defendant

AND:

KOMIT KUNAI
Second Defendant

AND:

SUNAIM KOMIT
Third Defendant

Waigani: Kariko, J
2013: 25th March & 2nd April

JUDGMENT – Application to set aside default judgment – Grounds of – consideration of - applicants have not made out a case to set aside default judgement – application dismissed – costs awarded to plaintiff.

Cases cited:

Isidore Kaseng v Michael Debege (2004) N2735
Stephen John Rose v The State (2007) N3241
Leo Duque v Avia Andrew Paru [1997] PNGLR 378
Green v Green [1976] PNGLR 73
Motor Vehicles Insurance (PNG) Trust Limited v Joseph Bure [1999] PNGLR 273

Counsel:

Mrs F Moses, for the plaintiff
Mr G Towaluta, for the defendant

RULING

2nd April, 2013

1. KARIKO, J: Default judgement for liquidated damages was ordered ex parte in favour of the plaintiff on 29th May 2012.
   

Application to set aside default judgement

2. The defendants have applied pursuant to O12 r35 of the National Court Rules ("the Rules") to have the order set aside on the basis that it was entered irregularly.
   
3. The defendants argued that the entry of default judgement was irregular for the reasons that the actual orders taken out by the plaintiff following the ruling of 29th May 2012 names another party Kokopo Chemicals Limited as the first defendant rather than Kabiu Guards and Services Limited, which two companies are different from and not related to each other.
   
4. It is clear to me that what is shown is an obvious clerical error on the face of the minute of the orders made on 29th May 2012. While there may have been a delay in the plaintiff noticing the error, this Court in the exercise of the inherent powers conferred by O8 r59 (1) of the Rules may correct the error. This provision reads:
   

59. Minute of judgment or order. (20/10)

(1) Where there is a clerical mistake in a minute of a judgment or order, or an error in a minute of a judgment or order arising from an accidental slip or omission, the Court, on application by a party or of its own motion, may, at any time, correct the mistake or error.

5. The nature of error in the present matter is clerical and it is obvious on the face of the minute. The Court may correct this type of error. That is, the Court may amend a formal order to accurately reflect the actual decision of the Court; Isidore Kaseng v Michael Debege (2004) N2735; Stephen John Rose v The State (2007) N3241.
   
6. I will accordingly correct the minute of the order. The argument that default judgement was irregularly entered, fails.
   
7. It was also argued for the defendants that they have proper defence on the merits as set out in their defence filed on 11th March 2012. This defence was filed well out of time and without leave of the Court. As to a defence on the merits, the Supreme Court in Leo Duque v. Avia Andrew Paru [1997] PNGLR 378 said that " ... as a matter of practice, an applicant must in an affidavit state material facts showing a defence on the merits." The affidavit of Komit Kunai filed 19th March 2013 and relied upon in support of the defendants' present application does not do this.
   
8. But an applicant seeking to set aside an ex parte order for default judgement must also satisfactorily explain why he allowed judgement to be entered in his absence and there has been no unreasonable delay in making his application; Green v Green [1976] PNGLR 73; Motor Vehicles Insurance (PNG) Trust Limited v Joseph Bure [1999] PNGLR 273. None of these requirements have been met by the applicants as they have not presented any explanation as to:
   
   • (1) why their defence was not filed in time; or
     
   • (2) why they did not appear to oppose the application for default judgement; or
     
   • (3) why it took them some three months after being served the orders in relation to the default judgement, to file their present motion.
     

Conclusion

9. The applicants have therefore not made out a case to set aside default judgement entered against them.
   

Orders

10. The Court orders that:
    
    • (1) The defendants' application to set aside default judgement ordered 29th May 2012 is dismissed.
      
    • (2) The plaintiff's costs of and incidental to this application shall be paid by the defendants, to be taxed if not agreed.
      
    • (3) Time is abridged.
      

___________________________________________________________
Finance Corporation Limited In-house Counsel: Lawyers for the plaintiff
Donald & Co. Lawyers: Lawyers for the Defendants