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KA Properties (PNG) Ltd v Simatab [2018] PGNC 167; N7256 (3 April 2018)

N7256

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS 1173 of 2016

BETWEEN:
KA PROPERTIES (PNG) LIMITED
Plaintiff

AND:
HON. JIM SIMATAB,
Minister for Papua New Guinea
Correctional Services
First Defendant

AND:

MICHAEL WAIPO,
Commissioner of PNG Correctional
Services and Delegate of the Minister
for PNG Correctional Services
Second Defendant

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Third Defendant

Waigani: Hartshorn J
2017: 7^th August
2018: 3^rd April

Application to amend a defence

Cases Cited:
Papua New Guinea Cases:

Waine Kerowa v. Hargy Oil Palms Ltd (2012) SC1194

Oversea case:

Cropper v. Smith [1884] UKLawRpCh 91; (1884) 26 Ch.D. 700

Counsel:

Mr. P. Lowing, for the Plaintiff
Ms. A. Nasu, for the Defendants

3^rd April, 2018

1. HARTSHORN J: This is a decision on a contested application by the defendants to file an amended defence pursuant to Order 8 rule 50(1) National Court Rules.

Background

2. The plaintiff KA Properties (PNG) Limited, pleads amongst others, that it is the registered proprietor of a property described as Allotment 1 Section 427 Hohola, State Lease Volume 76 Folio 200, that it has assumed all of the debts and liabilities associated with the property from the two previous registered proprietors, Zen No. 33 Limited and Kramer Ausenco (PNG) Limited, and that subject to a previous payment made by the Papua New Guinea Correctional Services (PNGCS) being treated as rent, PNGCS owes in rental over K6 million to the plaintiff. The plaintiff also seeks amongst others vacant possession of the property.

This application

3. The defendants contend that they should be permitted to amend their defence as the proposed amendments:

a) Do not change the substantive merits and intent of their defence;

b) Correct grammatical errors and the names of parties, and includes a cross claim;

c) Are necessary and vital as they include a cross claim for recovery and a declaration.

4. The plaintiff submits that the proposed amendments to the defence should not be permitted as:

a) They do not determine the real question in controversy between the parties;

b) There has been delay in making the application and no new facts have arisen since the defendant’s defence was filed.

5. Further, the proposed cross claim should not be permitted as it is an abuse of the court process and is irrelevant and vexatious.

Proposed cross claim

6. As referred to, the defendants proposed defence includes a cross claim. The notice of motion of the defendants’ only seeks to amend their defence pursuant to Order 8 Rule 50(1) National Court Rules. There is no reference made at all to a cross claim and counsel for the defendants conceded correctly, that a cross claim cannot be categorised as an amendment to a defence. Further, the defendants were given leave on 17^th May 2017 to file their defences out of time by close of business on 31^st May 2017. To file a cross claim at this stage of the proceeding, the defendants require leave to file a cross claim out of time. There is no application for such leave before this court. Consequently, for the above reasons, the proposed cross claim of the defendants is refused.

Proposed amendments to defence

7. In Waine Kerowa v. Hargy Oil Palms Ltd (2012) SC1194, the Supreme court said:

“The power to grant leave is an exercise of judicial discretion and must be exercised based on proper principles of law...........the onus is on the appellant to establish that the proposed amendments are necessary to enable the Court to determine the real question in controversy between the parties, to correct any defect or error in the proceedings and that the amendments will not prejudice the other party: The Papua Club -v- Nusaum Holdings Limited (2002) N2273, Michael Kewa -v- Elias Kombo (2004) N2688, Komboro -v- MVIT [1993] PNGLR 477, Eki Investments Limited -v- Era Dorina Limited (2006) N3176 and Luke Kyokal Niap -v- PNG Harbours Limited (2009) N3672.”

8. The seminal statement as to the exercise of the court’s discretion on an application for amendment is that of Bowen LJ in Cropper v. Smith [1884] UKLawRpCh 91; (1884) 26 Ch.D. 700 at 710:

“Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. ..........

I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace...... It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.”

9. From a perusal of the proposed amendments to the defence, I am satisfied that they correct defects or errors in the defence and will not prejudice the plaintiff. If they do prejudice the plaintiff, the prejudice can be remedied by an order for costs. Such an order for costs should be made in any event given the delay by the defendants in making their application.

10. Consequently, I allow the proposed amendments to the defence and award costs to the plaintiff on a party party basis.

Orders

11. The formal orders of the Court are:

a) The defendants are granted leave to amend their defence in terms of paragraphs 1 to 14 of the proposed amended defence being annexure “C” to the affidavit of Alice Nasu sworn 3^rd July 2017, by filing and serving the amended defence within 14 days of today;

b) The defendants are refused leave to file the proposed cross claim;

c) The Defendants shall pay the plaintiff’s costs of and incidental to the defendant’s notice of motion filed 6^th July 2017 on a party party basis;

d) Time is abridged.
__________________________________________________________________
Leahy Lewin Lowing Sullivan: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants