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Wuwanai Ltd v DD investment Ltd [2015] PGNC 137; N6043 (23 June 2015)

N6043

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1098 of 2012

BETWEEN:

WUWANAI LIMITED
Plaintiff

AND

DD INVESTMENT
LIMITED
Defendant

Waigani: Hartshorn J
2014: 1st September
2015: 23rd June

Application for Summary Judgment

Cases cited:

Christopher Smith v. Ruma Construction Ltd (2000) N1982
William Duma v. Eric Meier (2007) SC898

Counsel:

Mr. P. Harry, for the Plaintiff
Mr. T. Boboro, for the Defendant

23rd June, 2015

1. HARTSHORN J: This is a decision on an application for amongst others, summary judgment.

Background

2. The plaintiff, a landowner company, owns a Timber Permit in respect of the Bewani Local Forest Area in Vanimo, West Sepik Province. It sues the defendant, a contractor of the plaintiff in relation to the Bewani Local Forest Area TP 10 – 1, for what it claims are outstanding premiums and levies due under a Logging and Marketing Agreement entered into in January 2006 between the plaintiff and the defendant.

This application

3. The plaintiff applies for amongst others, summary judgment to be entered in favour of the plaintiff in the sum of K2,224,215.00 with interest. This is claimed to be for premiums which the defendant has not paid to the plaintiff for the period from September 2006 to 8th July 2014. Alternatively, summary judgment is sought with damages to be assessed.

4. There are many decisions as to the requirements for a successful summary judgment application; one of which is William Duma v. Eric Meier (2007) SC898. As to an application for summary judgment the Court said:

"Summary judgment is a discretionary power and may be granted if there is evidence of facts on which the claim is based and evidence is given by some responsible person that in his belief the defendant has no defence to the claim or part of the claim.........

The discretion conferred on the Court should be exercised in a clear case and with considerable care. Summary judgment should be granted only where there is no serious triable issue of fact or law. If there is no dispute as to fact and there is clear admissions of the claim or part of the claim then judgment must be entered for the plaintiff."

5. I also make reference to a passage in Christopher Smith v. Ruma Construction Ltd (2000) N1982, a decision of Sakora J in which his Honour, in my respectful view, correctly records the test to be applied when regard is had to the wording of Order 12 Rule 38 (1) National Court Rules. For summary judgement to be entered:

1. "The applicant must verify by affidavit evidence the cause of action.

2. The applicant must swear to a belief on his part that the respondent (defendant) has no defence to the cause of action (or the pleadings).

If the Court has been satisfied in respect of (1) and (2), then the onus is on the respondent to:

3. show an arguable defence or that there is a real question to be tried."

6. In this instance Mr. Joel Nali, a director and the company secretary of the plaintiff, deposes in three affidavits, upon which counsel for the plaintiff relied in support of this application, as to the plaintiff's claim against the defendant.

7. After a perusal of those three affidavits, although Mr. Nali deposes in detail as to the plaintiff's claim, Mr. Nali does not swear to a belief on his part that the defendant has no defence to the plaintiff's claim or cause of action or the plaintiff's statement of claim.

8. As one of the two legs of the test referred to above has not been satisfied by the plaintiff - that contained in Order 12 Rule 38 (1) (b) National Court Rules, the onus does not shift to the defendant to show an arguable defence or that there is a real question to be tried. (I note in this regard, that the defendant has filed a defence.)

9. Given the above the application for summary judgment should be refused.

10. As to the relief sought in paragraphs 5 and 6 of the amended notice of motion, that the defendant be ordered to pay all future premiums and levies to the plaintiff, or into Stevens Lawyers Trust Account, or the National Court Trust Account; I note that a similar application was made, and refused on 23rd September 2013. Consequently, the court will not entertain this application for similar relief.

11. As to the orders sought that the defendant provide individual names of landowners who have been paid premiums and levies, the exact amount paid, and when, the plaintiff relies upon Order 9 Rule 7 National Court Rules. That Rule concerns whether a document or class of documents is or has been in, amongst others, the possession of a party and does not provide for the court to order a party to provide other information.

12. Consequently the relief sought by the plaintiff should be refused.

Orders

13. The Orders of the Court are:

a) The relief sought in paragraphs 3, 4, 5, 6, 7 and 8 of the amended notice of motion of the plaintiff filed 4th August 2014 is refused;

b) The plaintiff shall pay the costs of the defendant of and incidental to the hearing of paragraphs 3 – 8 of the said motion;

c) Time is abridged.
_____________________________________________________________
Stevens Lawyers: Lawyers for the Plaintiff
Kuman Lawyers: Lawyers for the Defendant