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Dep International Private Ltd v Ambogo Sawmill Pty Ltd [1987] PGNC 29; [1987] PNGLR 117 (12 June 1987)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 117 - Dep International Private Ltd v Ambogo Sawmill Pty Ltd�

[1987] PNGLR 117

N594

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DEP INTERNATIONAL PRIVATE LIMITED

V

AMBOGO SAWMILL PTY LIMITED

Waigani

Woods J

5 June 1987

12 June 1987

PRACTICE - Summary judgment - Evidence of facts on which claim based - Admissions - Sufficiency of - Contained in letter delivered prior to action - Claim for moneys owing on sale of goods - Letter recognising outstanding invoice - Judgment entered - National Court Rules, O 12, r 38.

The National Court Rules, O 12, r 38, allows the Court to direct entry of summary judgment where there is evidence of the facts on which the claim is based and there is evidence for the plaintiff of a belief that the defendant has no defence except as to the amount of the damages claimed.

Held

N1>(1)����� That a plaintiff is entitled to judgment under O 12, r 38, where admissions sufficient to support the claim are made, either formally or informally, provided they are sufficiently strong and unambiguous to be acted upon.

Ellis v Allen [1913] UKLawRpCh 144; [1914] 1 Ch 904 and Re Registered Trade Mark �Certina� (1970) 44 ALJR 191, sub nom Freres v Jenssen [1972] ALR 730, followed.

N1>(2)����� Accordingly, in a claim for moneys owing under a contract for the supply of goods, where a letter delivered by the defendant to the plaintiff prior to the issue of the writ recognised that there was an outstanding invoice to be settled between the parties which might end up in court, the plaintiff was entitled to rely upon the evidence of liability on the invoice and to have summary judgment entered, with damages to be assessed.

Cases Cited

Contract Discount Corp Ltd v Furlong [1948] 1 All ER 274.

Ellis v Allen [1913] UKLawRpCh 144; [1914] 1 Ch 904.

Registered Trade Mark �Certina� (1970) 44 ALJR 191; sub nom Freres v Jenssen [1972] ALR 730.

Rodgers v Rodgers (1964) 114 CLR 608; 38 ALJR 27; [1965] ALR 109.

Notice of Motion

This was an application on notice by a plaintiff seeking summary judgment in respect of a claim for moneys owing under a contract for the supply of goods.

Counsel

J Steele, for the plaintiff.

S Golledge, for the defendant.

Cur adv vult

12 June 1987

WOODS J: The plaintiff in this matter is seeking summary judgment under the National Court Rules, O 12, r 38, in respect of his claim for moneys owing under a contract for the supply of certain goods. The statement of the claim refers to certain invoices and to an oral variation for credit to be allowed on the return of certain goods.

The defendant has filed a defence which initially denies the contract but in the alternative denies the prices specified in the invoices referred to. The defendant also admits the receipt of the goods although disputing the condition.

Order 12, r 38 allows the Court to direct entry of judgment where there is evidence of the facts on which the claim or part thereof, is based and there is evidence by the plaintiff that in the belief of the person giving the evidence the defendant has no defence except as to the amount of any damages claimed.

The principles here are that if a defendant makes admissions sufficient to support the claim against him the plaintiff may apply for judgment based on the admissions. These admissions may be based either on formal admissions in the pleadings or on informal admissions. For the judgment to be entered under this rule the defendant�s admissions must be strong and unambiguous. However, the judgment is not entered on admissions where a serious question of fact or law requires consideration. Although it is clearly contemplated that a party may apply for judgment on admissions contained in the pleadings it is far more probable that admissions will be obtained less formally. It follows that any admissions may form the basis of an application for judgment and this could include a letter: see Ellis v Allen [1913] UKLawRpCh 144; [1914] 1 Ch 904 and Re Registered Trade Mark �Certina� (1970) 44 ALJR 191.

In the case before me it is not a clear unambiguous admission on the pleadings but rather an admission in a letter written by the defendant before the proceedings commenced. The defendant submits in answer to this application that this letter cannot be used as it is a privileged document being a without prejudice letter. He submits that this letter is clearly an offer of compromise and he refers to the case of Rodgers v Rodgers (1964) 114 CLR 608 where certain negotiations between a husband and wife in a matrimonial cause were held to be inadmissible. I would distinguish those negotiations. They were clearly done in contemplation of matrimonial proceedings. As the Court said in that case (at 615):

�We should add that in any event what a husband may be prepared to pay in settlement of claims made by his wife for maintenance and with respect to property standing in his name in order to avoid protracted and costly litigation at his expense cannot be taken to set the standard of maintenance to which the wife is by law entitled.�

The letter before me in this case was not necessarily done in contemplation of proceedings and was not part of negotiations by both sides. This letter was a recognition of there being the matter of an outstanding invoice to be settled and it suggests that if the matter of the invoice and the other matters were not settled parties might end up in court. But the letter clearly recognises the invoice whilst being a letter to work towards a compromise of the amount involved.

I am satisfied that the plaintiff is entitled to the benefit of the clear evidence of liability on the invoice and see Contract Discount Corp Ltd v Furlong [1948] 1 All ER 274 at 277: �It would be unjust to the plaintiffs to deny them a right to summary judgment up to a proper amount.� The defendant has not denied the invoice but it is merely challenging the amount and these challenges are based on matters referred to in the pleadings. I find that the plaintiff is entitled to summary judgment under O 12, r 38(2). I therefore order entry of judgment for the plaintiff for damages to be assessed.

Entry of judgment with damages to be assessed

Lawyer for the plaintiff: Steeles.

Lawyer for the defendant: Kirkes.