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Saki v Busu High School and Kadir Contractors Ltd [1999] PGSC 1; SC599 (25 February 1999)

Unreported Supreme Court Decisions

SC599

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA 55 OF 1998
PASTOR GEYAMGOLING SAKI – FIRST APPELLANT
BUSU HIGH SCHOOL – SECOND APPELLANT
V
KADIR CONTRACTORS LTD – RESPONDENT

Waigani

Woods Salika Akuram JJ
22 February 1999
25 February 1999

PRACTICE AND PROCEDURE – summary judgement – court should only act in a clear case – defence raised – evidence if a dispute.

Counsel

A Manase for the Appellants

J Poro for the Respondent

25 February 1999

WOODS SALIKA AKURAM JJ: This is an appeal from the order for summary judgement given by the National Court in Lae on 23^rd June 1998: Summary judgement is hereby entered in favour of the Plaintiff against the Defendants in the sum of K31,754.00 plus interest at the rate of 8% per annum and costs of these proceedings to be taxed if not agreed.

The ground of the appeal is that the judge erred in law in failing to give any or any due weight to evidence of the contract performance of the Respondents as presented in the affidavit of Beta Nega the Headmaster of the Second Appellant and thereby gave summary judgement for the respondent as though the evidence before the Court established that the Respondent had completed the contract to the satisfaction of the appellants which evidence showed not to be the case and thereby the judge failed to recognise that a reasonable defence was available to the plaintiffs.

The Respondent Kadir had issued a writ of summons claiming money owing under an agreement for work to be done to two double classrooms at the Busu High school. The plaintiff claimed that the work had been performed under the agreement and the School had failed to pay the balance outstanding under the agreement. A defence had been filed on behalf of the school admitting there had been a construction agreement however claiming that the work done by the Plaintiff had been incomplete. The plaintiff had then sought summary judgement on the basis of some suggestion that whilst the building work may be unsafe and require further work the work done was completed according to the specifications as agreed and therefore the school was liable.

The procedure for summary judgement is in National Court Rules Order 12 Rule 38:

(1) Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff: (a) there is evidence of the facts on which the claim or part is based; and (b) there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed, the Court may, by order, direct the entry of such judgement for the plaintiff on that claim or part as the nature of the case requires.

In an application for summary judgement where in effect a party is deprived of the right to a full hearing, the court should only act in a clear case. Courts have consistently stated that great care should be taken not to shut out a defendant unless it is quite clear on the facts and the law that he has no defence. The purpose of the rule of summary judgement is to enable a plaintiff to obtain judgement without trial, but only if he can prove his claim clearly and if the defendant is unable to set up a bona fide defence or raise an issue against the claim which ought to be tried.

So what was the situation in this case. There was a claim for payment of monies still owing under a construction agreement, note that there was no normal construction contract apparently only a quote and an acceptance. The defendant had stated clearly in the defence that the work done was incomplete. Further whilst the plaintiff had filed an affidavit referring to a letter from the Morobe Building Board that the school should pay that letter was a bit ambivalent in that it also agreed the building were unsafe and needed further work. A court should ask how can a building be complete if it is unsafe? And the headmaster of the school had filed an affidavit outlining the matters in dispute between the builder and the school. There was a clear defence disputing the completion of the work and statements from the school that there was a dispute. In so far as the plaintiff was relying on certain correspondence from the Building Board that may be evidence in due course in the case. However it was very much an ambivalent letter over the status of the buildings.

It cannot be said that the pleadings and material before the court showed there was a clear claim about which there was no dispute. The material clearly showed a claim that should be heard properly with the appropriate evidence.

We uphold the appeal and Order that the Orders for Summary Judgement and costs entered in favour of Kadir Constructions Ltd be quashed and the matter be returned to the National Court to be dealt with according to law.