Nambis v Ling [2018] PGNC 292; N7416 (17 August 2018)

N7416

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
WS No. 1178 of 2017

YAROSON NAMBIS

V

SIMON LING
Kimbe: Miviri AJ
2018: 10^th August

PRACTISE & PROCEEDURE – Notice of Motion – Application for Default Judgment Order 12 r 25 NCR – in proper form – due service – default established –discretionary – facts in favour of exercising – motion Granted – Default Judgment allowed.

Cases cited:

Bala Kitipa v Vincent Auali, Supply and Tenders Board of Western Highlands Provincial Government and Others (1998) N1773
Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001
Giru v Muta [2005] PGNC 83
Kunkene v Rangsu [1999] PGNC 80; N1917
Mininga v Independent State of Papua New Guinea [1996] PGNC 8; N1458
Tima Korohan [2006] PGNC 21; N3045.
Tiaga Bomson v Kerry Hart (2003) N2428

Counsel:

P. Mokae, for Plaintiffs

No appearance for Defendant

RULING

17^th August, 2018

1. MIVIRI, AJ: The Plaintiff moves by way of Notice of Motion for Default Judgement to be entered against the Defendant. He bases so upon Order 12 Rule 25 of the National Court Rules, “The Rules.” The Motion also seeks costs and any other orders.
   
2. Order 12 is headed Judgements and orders and Rule 25 default is in this terms, “A defendant shall be in default for the purpose of this division-
   
   • (a) Where the originating process bears a note under order 4 rule 9, and the time for him to comply has expired but he has not given the notice; or
   • (b) Where he is required to file a defence and the time for him to file his defence has expired but he has not filed his defence; or
   • (c) Where he is required under Order 8 Rule 24 to verify his defence and the time for him to verify his defence in accordance with the rule has expired but he has not so verified his defence.”
     
3. The Plaintiff has filed this Writ of Summons, “the writ” since the 03^rd November, 2017 for K81, 000.00 moneys outstanding for the rental of a food warmer at K600 per month since first week of July 2006, up to October 2017.
   
4. The Writ bears the note under Order 4 Rule 9 that the Defendant will suffer judgment or an order unless the prescribed form of Notice of Intention to Defend is filed in the registry within 30 days after service of the Writ. The Writ was served 16^th November, 2017 by one David Pumi, a Filing Clerk of Justin Talopa Lawyers on the Defendant and his affidavit dated the 06^th June, 2018 filed the 06^th June, 2018 of that fact. Attached to it as Annexure “A” is the Acknowledgement of Service signed by the Defendant accepting service of the Writ. The date is 06^th June, 2018 when it was served.
   
5. On 2^nd July, 2018 Kevin Alu employed as Filing Clerk with Justin Talopa Lawyers personally served on the Defendant a Forewarning Letter to file and move the Application for Default Judgment on the 10^th August, 2018. Annexure, “A” of the affidavit is the service detail form. A further Affidavit of Search was filed as to search of the court file confirming that there was no Intention to Defend and Defence filed. One David Pumi clerk employed with Justin Talopa Lawyers conducted and swore the Affidavit to that effect attaching as Annexure, “A” copy of the search result. This affidavit is dated the 6^th July, 2018 and filed the 09^th July, 2018. It confirms that there are no further activities on the file emanating from the Defendant.
   
6. Further the Supporting Affidavit by the Plaintiff Applicant filed the 9^th July, 2018 confirmed in all material particulars the preliminaries set out above. Importantly there was continuous failure by the Defendant to comply with the requirements of law. And all opportunity was accorded to the Defendant but to no avail he by his own action chose the outcome as it was due to him.
   
7. These facts to my mind establish that the Default Notice of Motion was in proper form in accordance with the Rules of Court. That it had been duly served upon the Defendant. And there is default because there is no Intent to Defend nor is there Defence filed within the time under the Rules, Order 12 Rule 32. And there is proof of the service of the Writ of Summons upon the Defendant with the note under Order 4 Rule 9 that the Defendant will suffer judgment or an order on the Writ, Order 12 Rule 34. The time that has been inscribed on the Writ has run without the Defendant living up to what the rules require of him. These satisfy and Default Judgement can be awarded, Tima Korohan [2006] PGNC 21; N3045; Giru v Muta [2005] PGNC 83; (12^th August 2005).
   
8. Default Judgement is not of right but discretionary by read of the Rules under Order 12 Rule 32. And a number of cases demonstrate this Bala Kitipa v Vincent Auali, Supply and Tenders Board of Western Highlands Provincial Government and Others (1998) N1773, where fraud and deceit came out and the interests of justice required that the matter go to trial to prove by evidence application for Default Judgement was refused basing: Kunkene v Rangsu [1999] PGNC 80; N1917 (18^th September 1999). Default Judgment was refused because the Defence though late when filed was meritous and the matter was discretionary to go for full trial: Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001. The statement of claim amounted to abuse of process. The motion for Default Judgement was refused: Tiaga Bomson v Kerry Hart (2003) N2428 Defence was filed outside time but had merit and so application for Default Judgement was refused with costs.
   
9. An Affidavit of Service under hand of one Kevin Alu filing clerk with Justin Talopa Lawyers deposes of personal attendance on 7^th August, 2018 at 1.30am at Morokea ,Town and the personal service upon one Manager of Dealership in front of the Defendant Simon Ling, a sealed copy of this Notice of Motion meets that the Defendant is versed of the intent of the Plaintiff and has made no appearance.
   
10. All requirements of fairness under the rules and law has been met by the Plaintiff and there are no facts or circumstance apparent or identifiable to sway other than to grant the Orders sought in accordance with Order 12 r. 32 of the Rules: Mininga v Independent State of Papua New Guinea [1996] PGNC 8; N1458 (24 May 1996) .
    
11. Motion for Default Judgement is granted.
    
12. Assessment of Damages to be listed for trial.
    
13. Cost will follow the event.
    

Orders Accordingly.
__________________________________________________________________

Justin Talopa Lawyers : Lawyer for the Plaintiff Applicant

Nil : Lawyer for the Defendant