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

Yaka v Alu [2018] PGNC 563; N7706 (30 May 2018)

N7706

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1107 OF 2017

BETWEEN
BENJAMIN YAKA,
as Managing Director, Yangao Construction Limited
First Plaintiff

AND
YANGAO CONSTRUCTION LIMITED
Second Plaintiff

AND
LESLIE ALU, as City Manager,
National Capital District Commission
First Defendant

AND
THE NATIONAL CAPITAL DISTRICT COMMISSION
Second Defendant

AND
DEPARTMENT OF IMPLEMENTATION
AND RURAL DEVELOPMENT
Third Defendant

AND
MORESBY NORTH EAST DISTRICT
DEVELOPMENT AUTHORITY
Fourth Defendant

AND
THE INDEPENDENT STATE OF PAPA NEW GUINEA
Fifth Defendant

Waigani: Dingake J
2018: 19 April, 30 May

Cases Cited:

Giru v Muta (2005) PGNC 83; N2877
John Kunkene v Michael Rangsu and the State (1999) N 1917
National Capital District Commission v Dademo (2013) PGSC 37

Counsel:

Mr. R Yansion, for Plaintiffs
Mr. L Raula, for Defendants

30^th May, 2018

1. DINGAKE J: Serving before this Court are two applications; one by the plaintiff/applicant seeking a default judgment with damages to be assessed pursuant to Order 12 Rule 25 (a), (b) and (c) and 31 of the National Court Rules and the other by First and Second Defendants pursuant to Order 1 Rule 15 (1) and Order 7 Rule 6(2) of the National Court Rules seeking an extension of time to file their Defence out of time.

2. The cause of action is based on an alleged breach of contract/agreement.

3. The plaintiff/applicant has filed an affidavit of service suggesting that service of the writ was served on the defendants. The plaintiff has also filed an affidavit of search. This was done on the 19^th of March, 2018. There was no need to forewarn the Defendants because the defendants had not at the material time not given their notice of intention to defend.

4. Having regard to all the circumstances of this case, it would not be in the interest of justice to grant the default judgment sought. The consideration of the interests of justice is a relevant factor in considering whether to grant the default judgment sought (Giru v Muta (2005) PGNC 83; N2877).

5. It must be noted that this Court still has a discretion to refuse to enter default judgment even when proof of service of process and default have been established.

6. The discretion that is exercisable by the judge is a judicial one. Such a discretion must be exercised on proper principles of law or on good grounds (National Capital District Commission v Dademo (2013) PGSC 37).

7. In exercising my discretion, I have considered in particular that the extent of the default by the Defendants – a period of about a month – is not inordinate delay and it would in the circumstances be unfair to shut the door and not allow the Defendants to defend (John Kunkene v Michael Rangsu and the State (1999) N 1917, National Court, Kirriwom J).

8. I have perused the draft of the defence accompanying the defendants’ application to be granted leave to file their defence out of time, and it appears to me that the Defendants’ may have a good defence.

9. I also wish to emphasize that where a motion for default judgment is adjourned to the next motion day, due in a week’s time, it is good practice to conduct fresh search no more than three days before the motion is moved.

10. Having regard to all the above, I refuse to grant the default judgment sought.

11. The application by the defendants seeking leave to file their defence out of time is granted.

12. In the premises:

1. The application to enter default judgment against the defendants is refused.
2. The defendants are granted leave to file their defence within 14 days from today, the 4^th of June, 2018.

________________________________________________________________
Yansion Lawyers: Lawyers for the Plaintiffs
NCDC, Legal Division: Lawyers for the Defendants