Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Kove v Po'o [2017] PGNC 426; N8366 (27 October 2017)

N8366

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 462 OF 2016

BETWEEN:
RACHEL KAREN KOVE
(formerly Po’o)
Plaintiff

AND:
TAU PO’O
First Defendant

AND:
DAVID GUINN as Trustee of the
Property of Tau Po’o, an Insolvent
Second Defendant

Waigani: Hartshorn J.
2017: 27^th October

PRACTICE AND PROCEDURE - Application for summary judgment -test to be satisfied for an application for summary judgment - Summary judgment should be granted only where there is no serious triable issue of fact or law or where evidence is given by some responsible person that in his belief the defendant has no defence to the claim or part of the claim - arguable defence or a real question to be tried has been raised on behalf of second defendant - also applicable to the claim against first defendant – plaintiff’s application for summary judgment dismissed - Order 12 Rules 1 and 38 National Court Rules

Cases Cited:

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

Counsel:

Mr. B.S. Lai, for the Plaintiff
Mr. S. Gor, for the Second Defendant

27^th October, 2017

1. HARTSHORN J: This is a decision on a contested application for summary judgment.

Background

2. The first defendant Mr. Tau Po’o, was adjudged insolvent by this court on 11^th May 2015. The second defendant Mr. David Guinn is the trustee of the property of Mr. Po’o. The plaintiff Ms. Rachel Karen Kove and Mr. Po’o were married but were divorced in December 2002. As part of the matrimonial property agreement between them, Mr. Po’o was to transfer the property situated at section 239 lot 25 Gerehu (property) into Ms. Kove’s name. He did not. Ms. Kove has commenced this proceeding to in essence, challenge Mr. Guinn’s ability to exercise his rights as trustee in respect of the property. Ms. Kove claims that the property has been assigned to her and is no longer owned by Mr. Po’o.

This application

3. Ms. Kove applies for summary judgment to be entered against Mr. Po’o and Mr. Guinn. Application is made pursuant to Order 12 Rules 1 and 38. I consider the application under Order 12 Rule 38 as this is the specific Rule that concerns an application for summary judgment.

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 (sic) 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, Ms. Kovi deposes as to her claim. Amongst others, Ms. Kovi deposes that in her belief, the defendants do not have a defence to her claim.

7. Ms. Kovi appears then to have satisfied the two factors previously mentioned. Her cause of action has been verified by her affidavit evidence and she has sworn a belief that the defendants do not have a defence to her claim.

8. The onus is now upon the defendants to show that there is an arguable defence or that there is a real question to be tried.

9. It is argued on behalf of Mr. Guinn that amongst others:

a) The Decree Nisi of Dissolution of Marriage dated 5^th December 2002 signed by the Registrar of the National Court, contains amongst others, an order or judgment of the National Court that the Financial Settlement Agreement was sanctioned in its entirety. That Financial Settlement Agreement is therefore an order or judgment of the court. It provides for amongst others, Mr. Po’o to transfer the property to Ms. Kove.

b) Section 16 (5) Frauds and Limitations Act 1988 provides that:

“(5) An action shall not be brought upon any judgment after the expiration of twelve years commencing on the date when the judgement became enforceable.”

c) The Financial Settlement Agreement became enforceable at the latest as to the property in January 2003. This proceeding was filed in July 2016 and so it was filed one year and five months out of time. Consequently, Ms. Kove’s claim is statutorily time barred.

10. From a perusal of the evidence filed and a consideration of s. 16(5) Frauds and Limitations Act 1988, I am satisfied that an arguable defence or a real question to be tried has been raised on behalf of Mr. Guinn. It is also applicable to the claim against Mr. Po’o. Consequently, Ms. Kove’s application for summary judgment should be dismissed. Given this it is not necessary to consider the other submissions of counsel.

Orders

11. It is ordered that:

a) The Amended Notice of Motion of the plaintiff filed 14^th October 2016 is dismissed;

b) The plaintiff shall pay the second defendant’s costs of and incidental to the said Amended Notice of Motion;

c) Time is abridged.
_____________________________________________________________
B.S. Lai Lawyers: Lawyers for the Plaintiff
Fiocco & Nutley: Lawyers for the Second Defendant