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Highlands Products Ltd v Asia Pacific Investment Ltd [2008] PGNC 73; N3348 (22 April 2008)

N3348

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 1094 OF 2006

BETWEEN:

HIGHLANDS PRODUCTS LIMITED
t/a ZENAG CHICKEN
Plaintiff

AND:

ASIA PACIFIC INVESTMENT LIMITED
t/a BINTANGOR TRADING
Defendant

Lae: Kirriwom, J
2007: 7 December
2008: 22 April

PRACTICE AND PROCEDURE – application to amend Amended statement of claim and for summary judgment for outstanding amount – defendant has arguable case – leave to amend statement of claim granted – application for summary judgment dismissed

Cases cited:
Bruce Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112 at 117

Counsel:
T. Pryke, for the Plaintiff/Respondent
Mr. Mukuwesipu, for the Defendant/Applicant

RULING

22 April, 2008

1. KIRRIWOM, J: This is an application by the Plaintiff seeking firstly leave to amend its amended Statement of Claim and secondly for judgment to be entered against the Defendant based on admissions made in respect of all or part of the claim against it.

2. The Plaintiff sues the Defendant on the invoices issued for goods ordered and allegedly delivered to the Defendant under a credit scheme put in place between them from 6th June 2005 to 10th July 2006. The writ was filed on 31st July 2006 seeking total amount of K2, 307, 108.23.00.

3. The Defendant gave notice of intention to defend the action and filed its Defence on 24th August 2006 and at the same time requested further and better particulars from the Plaintiff. This request was answered on 2nd October 2006. On 25th October 2006 the Defendant gave notice of discovery with verification. On 7th November 2006 Plaintiff filed a list of documents in its possession or custody.

4. Plaintiff amended its Statement of Claim pursuant to a consent order of 16th July 2007 in which the Plaintiff was seeking a reduced amount of K1, 977, 806.79. The deduction was made based on evidence showing two lots of payments made to the Plaintiff by the Defendant on 21st July 2006 and 28th July 2006.

5. The application before the Court is to further amend the Amended Statement of Claim in the light of the earlier amendments and at the same time seeking summary judgment or default judgment for the amount outstanding in the sum of K1, 977, 806.79 with interests at the bank interest rates plus 3% per annum on the amount charged in each invoice remaining unpaid. The application is supported by a number of affidavits which were deposed to by Corey Polume sworn 11th October 2007, Marketing Manager of the Plaintiff.

6. The application is strongly opposed by the Defendant. It is contented that the application for summary judgment is irregular in that the Defendant has filed its defence and the Court must consider the defence in the light of the decision in Bruce Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112 at 117 and decide whether the defence is a sham in which case the Defendant has no defence at all. It was argued that the Defendant has acknowledged receipt of those invoices of those goods delivered and payments made accordingly but it cannot admit to receiving those goods it did not receive and will therefore not pay on the invoices for those purported deliveries it is unaware of nor has any records of them.

7. The Defendant therefore argues that there are no admissions, or clear and unambiguous admissions of liability for those outstanding invoices for summary judgment to be entered against it. It is also submitted that, in any event, the Plaintiff cannot seek amendment to its amended Statement of Claim and ask for summary judgment without the Defendant filing its amended Defence on the twice amended Statement of Claim without being guilty of abuse of process. If it succeeds in obtaining leave, it must file its amended ‘amended Statement of Claim’ and await the Defendant’s amended Defence before it decides whether its application for summary judgment is in order.

8. In defence to this application the Defendant has also filed an affidavit deposed to by Simon Sia, Managing Director of the Defendant Company.

9. It is quite obvious from the affidavits now before the Court that there is no clear and unambiguous admission of liability by the Defendant on the Plaintiff’s claim. There is an apparent disagreement as to the alleged deliveries of goods to the Defendant’s business set-ups which the Plaintiff contends, based on its own records, were delivered to the Defendant. But the Defendant says that those goods it had received, it had paid for them but will not pay for those it did not receive although it received invoices for them unless the Plaintiff can show that the goods were actually delivered to and received by it or its agents or servants.

10. I am satisfied that this is not a clear case for summary judgment. The Defendant has an arguable case and it must be allowed to present its defence and be heard. The substantive case would revolve around business practices of delivery, transportation and receipt of goods from suppliers to retailers, traders and consumers and the systems that the parties have in place for cross-check purposes. There is plenty of room for the parties to weigh their respective strengths and weaknesses in the light of the evidence presented in the affidavits which pave way for more discussions with a view to reaching compromise and continue in business for their long term interests.

11. In the circumstances leave to further amend the amended Statement of Claim is granted in terms of paragraph 1 of Notice of Motion and the Plaintiff is given twenty-one (21) days to file and serve the amended ‘amended Writ of Summons’ and have the same served on the Defendant in accordance with the Rules of Court.

12. The Court however dismisses the application for judgment on admission as the alleged admission or admissions are equivocal and requiring clarification when examined in the light of evidence given by the Defendant’s Managing Director.

13. Costs shall remain costs in the cause.

Pryke & Jansen Lawyers: Lawyers for the Plaintiff
Stevens Lawyers: Lawyers for the Defendants