Thomas Akmak (trading as Universal Contractors) v Papua Finance Ltd [2021] PGNC 571; N9299 (29 October 2021)

N9299

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 899 OF 2018

BETWEEN
THOMAS SIL AKMAK T/A UNIVERSAL CONTRACT ORS
Plaintiff

AND
PAPUA FINANCE LIMITED
Defendant

Waigani: Linge AJ
2021: 1^st, 8^th & 29^th October

PRACTICE AND PROCEDURES – Application for Directions of Court – Application for Default Judgment in a Cross-Claim – dismissal of Originating process for failure to prosecute – Whether proper to grant Orders sought.

Cases Cited:
Papua New Guinea Cases

Spirit Haus Ltd v Robert Marshall & Ors [2004] PGNC 166; N2639
Vivisio Seravo v Jack Bahafo [2001] PGNC 122; N2078

Overseas Cases

Barclays Bank v Tom [1921] 1KB 221

Counsel:

Mr. F Baundo, for the Plaintiff
Mr. V Ngibe, for the Defendant

23^rd September, 2021

1. LINGE A J: This is a Ruling on a Notice of Motion filed by the defendant on the 30^th August 2021, which came before me on the 10 September 2021.

2. The defendant seeks the following orders:

“(1) That pursuant to Order 8 & Rule 41(1) and 41 (2)(a) of the National Court Rules, make such other directional orders which are necessary.

(2) That pursuant to Order 8 Rule 41 (2)(b) of the National Court Rules, the claim on the cross-claim be tried;

(3) That pursuant to Order 8 Rule 41 (2)(g), Order 8 Rule 45 and Order 1 Rule 7, of the National Court Rules, default judgment be entered and the respondent/plaintiff to settle the default judgment within 30 days.

(4) That pursuant to Order 8 Rule (2) (h) and Order 1 Rule 7 of the National Court Rules, give such further directions as Court think fits.

(5) That alternatively, pursuant or Order 4 Rule 36 (1) of the National Court Rules, and the inherent jurisdiction of the Court, the proceedings styled WS No. 899 of 2018 be dismissed for want of prosecution.

(6) Costs of this proceedings be awarded to the applicant/defendant.

(7) Time be abridged.”

3. The applicant had previously filed Motion seeking orders for default judgment and entry of order of which he was given leave on the 2^nd August 2021 to withdraw.

4. In this Motion the defendant/applicant is seeking a series of court directions and for the cross-claim to be tried and at the same time default judgment be entered against the plaintiff for failure to file defence to cross-claim and an order to dismiss the entire proceedings.

5. I will deal with the specific order sought in seriation.

6. Order 8 Rule 41 (1) and 41 (2)(a), order seeking directional orders. The court has inherent discretionary power to give directions including granting directions on trial of cross-claim.

7. Order 8 Rule 41 (2)(b) seeking for the cross-claim to be tried. This is discretionary on the part of the Court to order trial of claim arising on the cross-claim.

8. Order 8 Rule 41 (2)(g), Order 8 Rule 45 and Order 1 Rule 7 of the National Court Rules is relied on by the defendant to seek default judgment of the cross-claim and for consequential settlement within 30 days. Again, the Court has a discretion either to enter judgment and where there is a default on the part of the cross-defendant, the Court is at liberty to order otherwise in the interest of justice.

9. Order 8 Rule (2) (h) and Order 1 Rule 7 is relied on to seek further directions. This Rule gives the Court discretion to give directions as the Court thinks fit to have the rights and liabilities of parties determined and enforced including order or direction which may be made or given under the cross-claim.

10. In the alternate the applicant also relies on Order 4 Rule 36 (1) to dismiss the proceeding WS No. 899 of 2018 for want of prosecution. The applicant reliance on Order 4 Rule 36 (1) is misconstrued for purposes of this proceeding being commenced by Writ of Summons.

11. The power of the Court to dismiss proceedings for want of prosecution should be exercised with caution. Numerous case laws have considered such application and I will cite the decision of Kandakasi J, in Vivisio Seravo v Jack Bahafo [2001] PGNC 122; N2078, where his Honour identified three (3) relevant considerations:

1) The plaintiff default is intentional or is allowing for an inordinate and inexcusable delay in prosecuting the case.

2) No reasonable explanation given by plaintiff for delay; and

3) The power to grant the Order for dismissal of proceeding is a discretionary one for the Court.

12. I find that the plaintiff has had the misfortune of having to change lawyers a few times and this may have some impact on the progress of his case.

13. That defendant had the benefit of being granted extension to file defence and cross-claim to 15 March 2019.

14. There had been Motions which parties were pre-occupied with.

15. I have considered the interest of dispensing of justice and will exercise that power accordingly.

16. In summary, the cross-claimant or defendant is seeking the court to give directions, to set matter for trial, to obtain default judgment due to non-filing of defence to cross-claim, and to also dismiss the entire proceedings.

17. In the cross-claim the defendant claims a breach of the Loan Agreement dated 20^th October, 2016. This loan and the alleged default and the action thereafter are the basis of the suit the plaintiff/cross-defendant filed this writ of summons.

18. The cross-claim of K484,122.19 is basically the disputed figure which then form the basis of the action taken by the defendant to repossess the dump truck which then trigger the plaintiff in filing this proceeding.

19. By this Notice of Motion the Court’s intervention and decision is being sought among other orders, to determine the entire proceeding.

20. I will not do that because I consider it prudent to regard and treat the cross-claim with the Writ of Summons as dealing with the one cause of action. As Kandakasi J in Spirit Haus Ltd v Marshall [2004] PGNC; N2639 puts it”, this practice is preferable because a cross claim usually refers to the claim in the Writ of Summons. Hence, it would not be possible to deal with the cross-claim without some reference to the Statement of Claim ......”. He went on to conclude that;

“This ensures completeness and thereby avoid duplication of proceedings, hence the risk of conflicting decisions.”

Conclusion

21. I have considered the Motion and it is apparent that it is an exercise to try and obtain all available procedural advantage. It is tantamount to casting a net on a fishing trip.

22. The Motion is not precise and concise and tries to elevate the cross-claim above the Statement of Claim in the Writ of Summons.

23. If the intention was to seek default judgment and or dismissal of the originating process, then that should have been the primary orders being sought.

24. The defendant was granted leave to withdraw his Notice of Motion filed on the 3^rd March 2021, which he had not formally filed for its withdrawal, instead he returns to this Court seeking orders couched in similar terms and effectively with similar in intent and outcome.

25. Further the Court took cognizance of the fact that the cross-claim and defence were filed out of time following the granting of order to do so by this Court.

26. I will allow the proceeding to continue to trial and will order accordingly.

Order
27. In relation to Notion of Motion filed on 30^th August 2021 the Court Order is as follows:

1. Default Judgment sought in paragraph 3 is refused.
2. Dismissed of this entire proceeding for want of prosecution sought in paragraph 5 is refused.
3. Pursuant to paragraph 1, 2 and 4 the following Directions are given to progress the matter to trial:
   
   1. Plaintiff shall file and serve affidavit it intends to rely on by the 29^th September 2021.
   2. Defendant shall file and serve affidavit it intends to rely on by the 7^th October 2021.
   3. Parties shall file Notices under the Evidence Act by 9^th October 2021
   4. Parties to settle and file Statement of Agreed and Disputed Facts and Legal Issues on by 14^th October 2021.
   5. Parties to file Pleading Book by 20^th October 2021.
   6. Matter returns to Court at 1:30pm on the 22^nd October 2021 for Pre-trial Conference.
   7. Parties bear their own costs.
   8. Time to be abridged.

___________________________________________________________
Gibson Bon Lawyers: Lawyers for the Plaintiff
Papua Finance Limited – Legal Section: Lawyers for the Defendant