Road Stabilisers (PNG) Ltd v Wereh [2017] PGNC 311; N6990 (11 September 2017)

N6990

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 78 OF 2014

BETWEEN:
ROADSTABILISERS
(PNG) LTD
Plaintiff

AND:
DAVID WEREH
as Acting Secretary for the
Department of Works
First Defendant

AND:
HON. FRANCIS AWESA
as Minister for Works
Second Defendant

AND:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Defendant

Waigani: Hartshorn J.
2017: 6^th, 11^th September

AMENDMENT OF NAME OF PLAINTIFF – Order 8 Rule 50 and Rule 53(3) National Court Rules considered

Counsel:

Mr. C. Sumba, for the Plaintiff

Mr. W. Mapiso, for the Defendants

11^th September 2017

1. HARTSHORN J: The defendants applied to dismiss this proceeding on the ground that the plaintiff company is not incorporated under the Companies Act and therefore lacks the capacity to prosecute this proceeding. During the course of submissions the plaintiff made an oral application to amend its name. I consider the amendment application first.

Background

2. The plaintiff Road Stabilisers PNG Limited claims about K57.5 million in damages against the defendants. This is in respect of alleged breaches of 79 contracts by the non-payment for work allegedly performed by Road Stabilisers PNG Limited. The work involved earthworks, the maintenance and patching of potholes in the National Capital District and the laying of pavements and bitumen surfacing.

The applications

3. The defendants contend that the name of the plaintiff in the statement of claim, Road Stabilisers PNG Limited, is not incorporated and has filed evidence to that effect. The plaintiff has filed evidence to the effect that its name is Roadstabilisers (PNG) Ltd. During the course of submissions, counsel for the plaintiff applied orally for its name to be amended.

4. Counsel for the defendants opposes the oral application but acknowledges that it is within the discretion of this court to make such an amendment. I now consider the oral application for amendment.

5. As to this court being able to consider and make an amendment in the absence of a notice of motion seeking the relief, I refer to Order 8 Rule 50(1) and (2) National Court Rules which provide:

“(1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.

(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.”

6. That Order 8 Rule 50(1) applies also to when there has been a mistake in the name of a party is confirmed by Order 8 Rule 50(3) which is:

“(3) Where there has been a mistake in the name of a party, Sub-rule (1) applies to the person intended to be made a party as if he were a party.”

7. Specifically, when there is a mistake in the name of a party, Order 8 Rule 53(3) provides:

“(3) Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party.”

8. In this instance counsel for the plaintiff submitted that the name of the plaintiff as stated in the writ of summons did not cause doubt to the defendants as to the identity of the plaintiff. This is because the affidavit evidence filed on behalf of the plaintiff has been by a director and shareholder of the plaintiff, Michelle Monsour, and there have been settlement negotiations between the State and representatives of the plaintiff.

9. Counsel for the defendants submitted that the amendment application should not be allowed as it should have been made earlier and that the lawyers for the plaintiff have not admitted that they made a mistake in their initial naming of the plaintiff.

Consideration

10. In this instance, notwithstanding any acknowledgement by the lawyers for the plaintiff to this effect, it is clear that there has been a mistake in the naming of the plaintiff in this proceeding. This is shown by the copy of the certificate of incorporation and company extract put into evidence by the plaintiff. There is no evidence from the defendants to the effect that the mistake was misleading. Further, I am satisfied that the mistake has not caused reasonable doubt in the minds of the defendants as to the identity of the company intended to be the plaintiff, as there is no evidence to that effect and secondly the defendants appear quite aware as to with whom on behalf of the plaintiff they have been dealing before and since this proceeding was commenced.

11. Consequently, in these circumstances and as I am satisfied that no prejudice will be caused to the defendants if the amendment is made, I grant leave to the plaintiff to make the amendment to correct the mistake in its name in the proceeding.

Orders

12. The formal orders of the Court are:

a) Leave is granted pursuant to Order 8 Rule 53(3) National Court Rules for the plaintiff to amend its name in this proceeding to ROADSTABILISERS (PNG) LTD;

b) The notice of motion of the defendants filed 5^th September 2017 is dismissed;

c) Each party shall bear their own costs of and incidental to the application to amend and the notice of motion of the defendants filed 5^th September 2017;

d) Time is abridged.
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Elemi Lawyers : Lawyers for the Plaintiff
Guardian Legal Services : Lawyers for the Defendants