Pacific Equities & Investments Ltd v Independent State of Papua New Guinea [2018] PGNC 456; N7556 (2 November 2018)

N7556

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 913 OF 2017

IN THE APPLICATION FOR EXTENSION OF TIME
TO GIVE NOTICE UNDER SECTION 5 OF THE
CLAIMS BY AND AGAINST THE STATE ACT

BETWEEN
PACIFIC EQUITIES & INVESTMENTS LIMITED
Plaintiff

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Waigani: Dingake J
2018 : 7 May, 2^nd November

Counsel:

Mrs. Eunice Noki, for Plaintiff
No appearance, for Defendant

Cases Cited:

Rawson Construction Ltd v Department of Works [2005] PG SC39;

Anis Kore v The State [2011] SC1136;

2 November, 2018

1. DINGAKE J: This is an application made pursuant to Section 5 (2) (c) (ii) of the Claims By and Against the State Act to grant an extension of time to enable the plaintiff/applicant to issue a Section 5 Notice of its intention to make a claim against the defendant.
   
2. The application is made pursuant to originating summons filed on the 27^th of November, 2017.
3. The contemplated suit is based on alleged breach of contract, entered into in January 2014.
4. The parties entered into a Memorandum of Agreement (MOA) to govern their Agreement.
5. Prior to signing the MOA aforesaid, the plaintiff had been the Manager of Pacific Property Trust (PPL) whilst a third party, Melanesian Trustee Services Limited (MTSL) was the Trustee of Pacific Property Trust.
6. The plaintiff alleges that it performed its obligations in terms of contract, but the defendant failed to perform its obligations, in that it failed to pay the amount of K4,398,728.62 as agreed under MOA.
7. The applicant avers that following the MOA a Deed of Retirement and Appointment was entered into.
8. The MOA committed the parties to go for arbitration for any dispute arising out of the Agreement.
9. The application avers that the cause of action arose on the 18^th of March, 2014. This means that the application delayed in giving notice under s.5 of the Claims By and Against the State Act 1996 by a period of slightly over three (3) years.
10. The applicant avers that at all material times it communicated with the defendant’s Mr. Kasi who indicated that the claim was delayed because the defendant was working on Pacific Property Trust audited accounts.
11. An applicant who seeks leave for an extension of time to give notice under Section 5 must show sufficient cause.
12. Sufficient cause is shown by adducing evidence that provides a reasonable explanation for the delay; demonstrates a reasonable cause of action to be pursued on the merits and demonstrates by appropriate evidence that the delay in giving notice has not and would not result in any prejudice against the State (Rawson Construction Ltd v Department of Works (2005) PG SC39; Anis Kore v The State (2011) SC1136).
13. In this matter the applicant cause of action seems reasonable, but the reasons for the delay are not quite satisfactory. The absence of adequate reasons for the delay is compensated by the fact that no prejudice has been shown to exist, if the Court grants the extension sought.
14. It also seems to me to be unjust, having regard to the extent of the claim to close out the applicant from pursuing its claim.
15. In the premises it is ordered that:
    1. Pursuant to Section 5 (2) (c) (ii) of the Claims By and Against the State Act 1996 that the time be extended for the Plaintiff to give notice of intention to make a claim against Mineral Resources Development Company Limited.
    2. Pursuant to Section 5 (2) (c) (ii) of the Claims By and Against the State Act 1996, time be extended by 14 days (from the 2^nd November, 2018) for the plaintiff to give notice of intention to make a claim in accordance with Section 5 (1) of the Act.
    3. The time for entry of these orders be abridged to the time for settlement by the Registrar which shall take place forthwith.

____________________________________________________________
Bradshaw Lawyers: Lawyers for the Plaintiffs
No Appearance: Lawyers for the Defendants