Nasfund Superannuation Fund Ltd v Mt Hagen Urban Local Level Government [2013] PGNC 333; N5301 (20 April 2013)

N5301

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 13 of 2008

BETWEEN:

NASFUND SUPERANNUATION FUND LIMITED
Appellant

AND:

MT HAGEN URBAN LOCAL LEVEL GOVERNMENT
Respondent

Mt. Hagen: Poole J
2013: 20th April

PRACTICE & PROCEDURE – Default Judgement entered without prior Notice to defendant irregularly entered and to be set aside – Practice Direction 1 of 1987 – Default Judgement quashed.

Cases cited:

Giru v Muta (2005) N2877
Mapmakers v BHP [1987] PNGLR 8

Counsel:

Mr. Kunai, for the Appellant
Mr. Peri, for the Respondent

20th April, 2013

DECISION

1. POOLE J: This is an Appeal from a decision of the District Court at Mt Hagen which dismissed an Application to set aside two ex-parte default judgements made in matters DC 66 of 2007 and DC 73 of 2007. The District Court ruled that the judgements were regularly obtained.

2. There are 5 grounds of Appeal. In addition, the Court invited and heard submissions on whether the Default Judgements were regularly entered, having regard not only to Order 4 rule 9 of the National Court Rules but, more especially, to Practice Direction 1 of 1987 and rule 19 (3) of the Motions (Amendment) Rules of 2005.

3. The background of this matter is that the District Court determined, ex-parte, two complaints made by the Mt Hagen Urban Local Level Government that Nasfund Superannuation Fund Ltd owed it, on DC 66 of 2007, the sum of K7,518.00 for "building service provided at the premises for the years 2003, 2004 and 2005" and the sum of K3,600.00 for providing the same service to the same premises for the year 2006 in DC 73 of 2007.

4. The Appellant had, in each Complaint, filed and served a Request for further and better particulars and the Respondent says that it provided a Reply to the Requests. It certainly filed a Reply in DC 73 of 2007 but there is no evidence of any Reply being filed in DC 66 of 2007. The Appellant wrote to the Mt Hagen Urban Local Level Government on 3 September 2007 stating it had had no response to its Request in DC 66 of 2007 and that the Response in DC 73 of 2007 was insufficient.

5. The Respondent then brought an Application for Default Judgement of each Complaint and this was granted ex-parte on 2 October 2007.

6. The facts before the District Court show no evidence of the Respondent having given prior notice to the Appellant that it intended to apply for Default Judgement of the Complaints.

7. The law in this situation is clear (see Giru v Muta (2005) N2877) on the mandatory pre-conditions for the granting of a Default Judgement – one of which is the requirement that the party in default be given prior notice of the intention to apply for Default Judgment. Indeed, this requirement has been in place for some 20 years at the time of the District Court hearing. (See Mapmakers v BHP [1987] PNGLR 8 and Practice Direction No. 1 of 1987).

8. The Respondent gave no such notice and the consequence is, in each complaint, Default Judgement was not regularly entered against the Appellant. The District Court records in the Appeal Book contain the learned Magistrate's ruling and examination of this shows his decision was made without him having considered sufficiently all the mandatory pre-conditions for grant of a Default Judgement. He fell into error in finding that the ex-parte Orders were regularly obtained and his finding cannot be allowed to stand.

8. Accordingly, the Orders of the Court are:

1. The Appeal is allowed,

2. The Orders of the Mt Hagen District Court in matters DC 66 of 2007 and DC 73 of 2007 are quashed.

3. The Appellant has leave to file and serve any Defence in matters DC 66 of 2007 of matters 73 of 2007 within 28 days of these Orders.

4. The Appellant's costs of and incidental to this Appeal shall be paid by the Respondent, such costs to be taxed if not agreed, and

5. Time is abridged to the time of sealing of these Orders by the Registrar, which shall take place forthwith.

_______________________________________________________________
Paulus M Dowa Lawyers: Lawyers for the Appellant
Warner Shand Lawyers: Lawyers for the Respondent