SNP Constructions Ltd v Avae [2021] PGNC 223; N9090 (31 August 2021)

N9090

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1167 OF 2013 – (IECMS)

BETWEEN:
SNP CONSTRUCTIONS LIMITED
Plaintiff

AND:
MARK ORISURU AVAE
First Defendant

AND:
DAVID WEREH, As Acting Secretary for the Department of Works
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Anis J
2021: 13^th & 31^st August

NOTICE OF MOTION – seeking leave to file a further amended statement of claim – Order 8 Rule 50(1) & (2) – National Court Rules – preliminary consideration – whether relief sought is available given that the original writ of summons had been amended and no longer exists – whether the notice of motion is frivolous or untenable – exercise of discretion

Counsel:

P Mawa, for the Plaintiff
G Tine, for the Defendants

RULING

31^st August, 2021

1. ANIS J: The plaintiff applied to further amend its earlier amended statement of claim. The application was heard on 13 August 2021, and it was contested by the defendants. I reserved my ruling thereafter to a date to be advised.

2. Parties have been notified of today’s hearing so I will give my ruling.

BACKGROUND

3. The claim is in contract. The plaintiff alleges that in February and March of 2012, it signed 5 contracts with the Gulf Provincial Supply andTender Board, to build roads, bridges, and related civil works in the Gulf Province. It says out of the 5 contracts, one of them which was signed on 10 February 2012 that was worth K1,946,103.50, was completed (i.e., construction of road) and fully paid by the defendants. Two others, one signed on 10 February 2012 worth K2,551,985.59 and the other signed on 20 March 2012 worth K3,000,000, were both completed (i.e., road constructions) but payments have not been received. As for the remaining 2 contracts, both signed on 20 March 2012 worth K3,000,000 each, no works were carried out and no payments made.

4. The plaintiff therefore claims, amongst others, payments in regard to work that had been undertaken for the 2 contracts of 10 February 2012 and 20 March 2012, breach of contract in regard to the 2 contracts of 20 March 2012 that had been awarded but which had not been carried out or undertaken.

NOTICE OF MOTION

5. The plaintiff’s notice of motion was filed on 30 June 2021 (NoM). The main relief states, and I quote in part, the Plaintiff be granted leave to further amend the Statement of Claim, endorsed to the Writ of Summons filed on 18 October, 2013 (Court Document No. 1).

6. The source of the NoM is not an issue, that is, Order 8 Rule 50(1) & (2) of the National Court Rules (NCR).

PRELIMINARY MATTER

7. Having had the opportunity to peruse the NoM and the pleading, I make this preliminary observation. The plaintiff seeks to amend its original writ of summons and statement of claim filed on 18 October 2013, which is document No. 1 in the court file (the original writ). However, the original writ was amended and replaced with an Amended Statement of Claim filed on 18 February 2014 (the amended writ). The amended writ is document number 11 in the court file. So, the main relief sought in the NoM cannot be further amended as it no longer exists or is valid. As such, the NoM herein appears misconceived and untenable; it is based on facts and pleadings that have been overtaken by events. I must add that the amended writ appeared to have been filed by the plaintiff’s previous lawyers. It appears that the relevant information may not have been brought to the attention of its present lawyers Paul Mawa Lawyers.

8. For these reasons, I find the NoM futile and therefore will order its dismissal.

SUMMARY

9. I refused to exercise my discretion, and in so doing, dismiss the NoM.

COST

10. An order for cost with this type of application is discretionary. I will order cost to follow the event on a party/party basis which may be taxed if not agreed.

REMARK

11. I wish to make this remark. The proposed draft amended writ of summons and statement of claim, marked as Annexure B to Mr Mawa’s affidavit filed on 30 June 2021, is identical to the existing amended writ except for the names and address of the plaintiff’s lawyers. That is perhaps something for the plaintiff to take note of. It may have been attached as an error.

ORDERS OF THE COURT

12. I make the following orders:

1. The Plaintiff’s Notice of Motion filed on 30 June 2021 is dismissed.
   
2. The Plaintiff shall pay the defendants’ costs of the application on a party/party basis to be taxed if not agreed.
   
3. Time for entry of these orders is abridged to the date and time of settlement by the Registrar which shall take place forthwith.
   

The Court orders accordingly.
________________________________________________________________
Mawa Lawyers: Lawyers for the Plaintiff
Adam Ninkama: Lawyers for the Defendants