Redcoco Properties Ltd v Gimiseve [2023] PGSC 25; SC2383 (28 April 2023)

SC2383

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 41 & 42 OF 2021

BETWEEN:

REDCOCO PROPERTIES LIMITED

Appellant

AND:
JOHN GIMISEVE IN HIS CAPACITY AS THE CHAIRMAN OF THE EHP SUPPLIES AND TENDERS BOARD
First Respondent

AND:
BENSON IMARA IN HIS CAPACITY AS THE DISTRICT ADMINISTRATOR OF THE GOROKA DISTRICT AND CHIEF EXECUTIVE OFFICER OF THE GOROKA DISTRICT DEVELOPMENT AUTHORITY
Second Respondent

AND:
ENOCH MIEH IN HIS CAPACITY AS THE CHAIRMAN OF THE BOARD OF GOVERNORS OF THE GOROKA SECONDARY SCHOOL
Third Respondent

AND:
LESTER MITIGEI IN HIS CAPACITY AS THE DEPUTY PRINCIPAL OF GOROKA SECONDARY SCHOOL
Fourth Respondent

AND:

GOROKA SECONDARY SCHOOL

Fifth Respondent

Waigani: Kassman, Logan, Polume-Kiele JJ
2023: 24^th April
2023: 28^th April

PRACTICE AND PROCEDURE – Application by leave under Order 11, rule 32(3) to correct slip made in judgment delivered on appeal – manifest error of fact in failure by court when hearing appeal to correct manifest error of fact made by trial judge – appropriate to make consequential order correcting error as should have been made in disposing of the appeal.

Facts:

One component of the judgment given in favour of the respondents in the National Court was in respect of sums paid to the appellant referable to an invoice which it had rendered in 2019 in relation to a purported “renegotiation” of the original building contract. The trial judge awarded the respondents the whole of the invoiced amount plus interest. On the evidence, the only sums paid were two amounts of K500,000 in March 2019, a total of K1,000,000. No slip rule application was made to the National Court to correct this error. However, the error did form the basis of a ground of appeal in a supplementary notice of appeal. In the appeal judgment, the Court did not advert to the error but instead in effect repeated it by upholding that part of the National Court’s judgment in respect of this amount. It was common ground in the appeal that the error had been made by the primary judge.

Held:

The appellant had demonstrated that type of manifest error of fact which constituted a slip requiring correction in the interests of justice.

Cases Cited:

Dick Mune v Paul Poto (No 2) [1997] PNGLR 356

Robert Sanga v PNG Law Society [2010] SC1070

Legislation Cited:

Supreme Court Rules, Order 11, rule 32(3).

Counsel:

Mr. S Gor, for the Appellant

No appearance or written submission for the respondents

28^th April, 2023

1. BY THE COURT: The appellant building contractor, Red Coco Properties Limited (Red Coco), has, by leave granted by Logan J on 24 April 2023, made a “slip rule” application pursuant to Order 11, rule 32(3) of the Supreme Court Rules 2012. Although they were served with the application and its supporting affidavit and although they attended a case management hearing in respect of it, there was no appearance by or on behalf of any of the respondents on 24 April 2023. Further, none of them chose to file any written submission in respect of the application. In the circumstances, Logan J determined that the application made by leave should be heard by the Court as constituted for the hearing of the appeal but determined on the papers.
   
2. For the reasons which follow, the application must be allowed. These reasons for judgment must be read in conjunction with those given in respect of the substantive appeal: Red Coco Properties Limited v John Gimiseve in his capacity as the Chairman of the EHP Supplies and Tenders Board SC2358 (principal judgement)
   
3. The purpose of a slip rule application is to correct a glaring error or mistake in a judgment of the Court: Robert Sanga v PNG Law Society [2010] SC1070. One type of error could be, and in this case is, a manifest, not merely arguable, error of fact. Such applications are not an opportunity to re-litigate the merits of a case, only to correct such errors so as to avoid an injustice. Where, truly, there is such an error, a party should not hesitate to bring such an application for fear of in some way offending the judge or judges who constituting the Court by the highlighting of an error or mistake. While it is to be hoped such errors are avoided, to err is human and no judge true to his or her judicial oath should take umbrage or offence at acknowledging an error so as to avoid an injustice. We certainly do not. Indeed, we apologise to the parties and Red Coco in particular for the error and consequential inconvenience. The Court has an inherent jurisdiction to rectify such glaring errors or mistakes: Dick Mune v Paul Poto (No 2) [1997] PNGLR 356.
   
4. The relevant error is this. In the principal judgment, at [40], we record that in March 2019, two further sums of K500,000 were paid to Red Coco. Red Coco

does not allege that this conclusion was a mistake. Indeed, it embraces the conclusion for the purposes of its slip rule application.

5. These two payments were, as is recorded at [41] in the principal judgment, referable to an invoice which Red Coco had rendered in January 2019 in an amount of K1,598,460 in respect of a purported renegotiation of the original building contract.
   
6. For reasons given in the principal judgment, Red Coco was never entitled to render this invoice and never owed the sum of K1,598, 460. However, it never was paid the total amount of that invoice, only, via the two payments mentioned, the total sum of K1,000,000. This was common ground between the parties.
   
7. When giving judgment in the National Court, the primary judge had, erroneously as a matter of fact, proceeded to give judgment based on a calculation which took as the amount wrongly paid to Red Coco the sum of K1,598,460 when that should have been K1,000,000. Further, this error carried over into the calculation of interest. His Honour allowed interest at 8% on K1,598,460 for one year namely, K127,876, whereas he should have allowed interest on K1,000,000 at 8% for one year namely K80,000.
   
8. This error could have been raised on a slip rule application in the National Court. It was not. However, Red Coco did raise this error in a ground put forward in a supplementary notice of appeal. Unfortunately, in focussing on whether there was ever any obligation to pay the additionally invoiced amount and in explaining why there was never any such obligation we omitted to correct the error made by the primary judge. His Honour had also concluded that there was no obligation to pay the invoiced amount but erred in his understanding that it was the total invoiced amount, rather than K1,000,000 which had been paid. The amount allowed in respect of interest was a consequential error.
   
9. The errors are indeed glaring. No controversy attends whether they were made. They need correcting.
   
10. The way that should be done is as follows:
    
    1. The total sum, exclusive of interest, awarded against Red Coco by the primary judge was K2,432,065. That should be reduced by the amount of the error (K598,460) as to the amount paid to Red Coco in respect of the purported renegotiation. That results in the correct total sum being K1,833,605.
    2. The invoiced sum error apart, the primary judge had awarded the sum of K218,505 and interest of K52,441 against Red Coco. In conjunction with the invoiced sum error and related interest, this meant that the total of interest awarded against Red Coco was K180,317 (K127,876 plus K52,441). It should have been K132,441 (K80,000 plus K52,441).
11. As the principal judgment reveals, Red Coco’s appeal was allowed in part. However, but for the mistake of fact, in allowing the appeal in part, the error made by the primary judge was not, as it ought also to have been, corrected. As already noted, the error was not controversial. The additional orders necessary to correct it are set out below. We note that Red Coco did not seek any order in respect of the costs of its application.

Orders

1. Order 3 of the orders made on 23 February 2023 otherwise dismissing the appellant’s appeal be set aside.
   
2. In lieu thereof, it be ordered that, in addition to allowing the appellant’s appeal in part as ordered on 23 February 2023, the appellant’s appeal also be allowed in part with the following variations being made to the orders made by the National Court on 31 March 2021:
   1. paragraphs 1 and 8 be varied by replacing the amount of K2,433,065 with K1,833,065;
   2. paragraphs 3 and 5 be varied by replacing the amount of K1,598,460 where appearing with K1,000,000;
   100. paragraph 7 be varied by replacing K180,317 with K132,441 and;
   4. save as aforesaid and as provided by the Court’s order of 23 February 2023, the appeal be dismissed.

________________________________________________________________
Fiocco & Nutley Lawyers: Lawyers for the Appellants