JT Investment Ltd v Aisi [2020] PGNC 263; N8483 (7 August 2020)

N8483

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 655 OF 2016

BETWEEN:
JT INVESTMENT LIMITED
Plaintiff

AND:
HENRY AISI
First Defendant

AND:
AIHI MIRIA
Second Defendant

AND:
SENTRY LOCKSMITH LIMITED
Third Defendant

Lae: Dowa AJ
2020: 23^rd June & 7^th August

PRACTICE AND PROCEDURE – application to set aside default judgment and seek extension of time to file defence out of time – names of defendants in the initial writ different to names listed in the amended writ -orders of 14^th June 2019 is varied - Default judgment against the Defendants given 14^th June 2019 is set aside - Leave is given to the Plaintiff to join Aihi Miria as a Defendant in the proceedings - Defendants are granted leave to file their Defence out of time – Order 12, rules 1 & 35 National Court Rules

Cases Cited:

Nil

Counsel:

K. Keindip, for the Plaintiff
R. Geoctau, for the Plaintiff

JUDGMENT

7^thAugust, 2020

1. DOWA AJ: This is a ruling on an interlocutory application by the Plaintiff seeking various reliefs.

2. By Notice of Motion filed 2^nd June 2020 the Plaintiff seeks the following orders:

1. Pursuant to Order 12, Rule 35 of the National Court Rules, the default judgment ordered on 14^th June 2019 and entered on 17^th June 2019 against the Second Defendant be set aside.
   
2. Pursuant to Order 5, Rule 7 of the National Court Rules, the Second Defendant be joined as a Defendant in this proceeding.
   
3. Pursuant to Order 12, Rule 1 of the National Court Rules, the Amended Writ of summons filed on the 4^th February 2019 shall be deemed to comply with the orders of this court.
   
4. Pursuant to Order 12, Rule 1 of the National Court Rules, the Amended Writ of Summons already served on the Second Defendant be deemed to have been properly served.
   
5. Pursuant to order 12, Rule 1 of the National Court rules, the Second Defendant be given 14 days from date of service of this Order to file his Defence.
   

BACKGROUND FACTS

3. The Plaintiff is a registered proprietor of a motor vehicle described as Toyota Land Cruiser Reg: No: LBJ 700.

4. On 4^th December 2014, the Plaintiff’s vehicle collided with the Defendants vehicle, a Mitsubishi Rosa Bus, Registration No. LAP 017.
   
5. It is alleged that the accident was caused as a result of the negligence driving of the First Defendant Henry Aisi, the employed driver of the Second Defendant.
   
6. As a result of the accident, it is alleged that the Plaintiff’s motor vehicle was damaged beyond economic repairs.
   
7. On 6^th July 2016 the Plaintiff filed these proceedings claiming damages for the value of the vehicle and other consequential loss.
   
8. On or about July 2016, copies of the Writ of Summons were served on the Defendants.
   
9. On 4^th February 2019, the Plaintiff filed an Amended Writ of Summons, adding one Aihi Miria as a Defendant to the proceedings.
   
10. The Amended Writ of Summons was served on the lawyers for the Second Defendants on 6^th February 2019.
    
11. On 29^th April 2019, the Third Defendant filed a Defence.
    
12. On 14^th June 2019, on application by the Plaintiff, the Third Defendant’s defence was struck out, and judgment was entered against all the three Defendants.
    
13. It is the order of 14^th June 2019, the Plaintiff now seeks to set aside and vary its terms.
    

Plaintiff’s Submissions

14. The Plaintiff submits, the judgment in sofar as it applies to the Defendant, Aihi Miria, is irregular. The Plaintiff concedes, they made an error, in their initial application seeking judgment against the three Defendants. Aihi Miria was added as party in the Amended Writ of Summons without prior leave of Court.
    
15. The Plaintiff submits that, judgment against the Aihi Miria be set aside, and Mr Miria be joined as a Second Defendant, and the Amended Writ of Summons filed on 4^th February 2019 shall be deemed to have complied with the orders of this Court. That the Amended Writ of Summons already served on the Second Defendant is deemed to have been properly served. And that the Second Defendant be given 14 days to file his defence. The Plaintiff wants the default judgment entered on 14^th June 2019 remain against the Henry Aisi, the First Defendant and Sentry Locksmith Ltd, the Third Defendant
    
16. It is clear the Plaintiff is seeking a series of orders in an attempt to correct its own mistakes.
    
17. The Third Defendant opposes the application. The Defendant submits that the entire orders of 14^th June 2019 be set aside. It is confusing and an abuse of the process. The Defendants have also submitted that the entire proceedings be struck out. The Defendants did not elaborate further in their submissions why the entire proceedings should be dismissed.
    

Reasons for Decision

18. I have studied the file, the Notice of Motion, the affidavits in support and the submissions of Counsel for the parties. In my view, the interest of justice will be best served by setting aside the entire orders of 14^th June 2019.
    
19. The initial Writ of Summons has the following parties:
    

Plaintiff: JT Investment Limited

1^st Defendant: Henry Aisi

2^nd Defendant: Locksmith Limited

20. The amended writ of summons has named the following parties:
    

Plaintiff: Jim Tapako Investment Ltd

1^st Defendant: Henry Aisi

2^nd Defendant: Aihi Miria

3^rd Defendant: Sentry Locksmith Limited

21. It is clear, the Plaintiff JT Investment Ltd as Plaintiff in the original Writ of Summons is a different entity from Jim Tapako Investment Ltd named in the Amended Writ of Summons. The Second Defendant, Locksmith in the original writ is entirely different from the Sentry Locksmith in the Amended Writ of Summons.
    
22. The service of initial Writ of Summons on the Defendants would have no effect for the purposes of service under the rules of the National Court. The names of parties have changed substantially. The Amended Writ of Summons has to be served on all the three Defendants. It appears only Sentry Locksmith, the Third Defendant was served the Amended Writ of Summons. There is no evidence that the First Defendant was served a copy of the Amended Writ of Summons.
    
23. The Second and Third Defendants filed their defence on 29^th April 2019, though belatedly.
    
24. When the Amended Writ of Summons was filed, it named and included Aihi Miria as a Defendant without leave of Court. The Plaintiff correctly concedes that the judgment of 14^th June 2019 is irregular in that respect.
    
25. If the Court grants orders in terms as proposed by the Plaintiff, the First and Third Defendants would be prejudiced especially where the main tortfeasor, the First Defendant was not served a copy of the Writ of Summons.
    
26. On the other hand, if the Court refuses to grant leave the Plaintiff would suffer injustice. This is because, the First Defendant is yet to be served a copy of the Writ of Summons and time for service has long expired.
    
27. For the foregoing reasons I propose to make other orders by variation of orders given on 14^th June 2019, Order 12 Rule 1 of the National Court Rules to do justice in the circumstances. For example, pursuant to Order 1 Rule 15 of the National Court Rules, the Defendants can have leave to file their defence out of time.
    
    28. The formal order of Court are:
        
        1. The orders of 14^th June 2019 is varied.
           
        2. Default judgment against the Defendants given 14^th June 2019 is set aside.
           
        3. Leave is given to the Plaintiff to join, Aihi Miria as a Defendant in the proceedings.
           
        4. The Amended Writ of Summons filed on 4^th February 2019 is deemed to have complied with the orders of this court.
           
        5. The Defendants are granted leave to file their Defence out of time.
           
        6. The defence filed by the Defendants on April 2019 is deemed to have complied with the orders of this Court.
           
        7. The Plaintiff shall file and serve a minute of these orders on the Defendants.
           
        8. Cost be in the cause.
           
        9. The matter is adjourned to 4^th September 2020 for Directions.
           

________________________________________________________________
Kesno Lawyers: Lawyers for the Plaintiff
Gamoga Lawyers: Lawyers for the Defendants