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Niuslik Holding Ltd v Yapao trading as Yapao Lawyers [2003] PGSC 24; SC703 (3 March 2003)

SC703
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

SCA NO. 33 OF 2002

BETWEEN:

NIUSLIK HOLDING LIMITED
trading as RAY WHITE
PAPUA NEW GUINEA
Applicant

AND:

GEORGE T. YAPAO trading as YAPAO LAWYERS
Respondent

Waigani: Davani, .J
2003: 20 February
3 March

PRACTICE AND PROCEDURE – leave to appeal – Defence filed out of time – Defence struck out – Application to set aside judgment refused – refusal to set aside judgment; final or interlocutory judgment – whether leave required – tests to be applied – Supreme Court Act s. 14 (3) (b)

PRACTICE AND PROCEDURE – Application to stay entry of judgment of taxed costs – Applicant need only demonstrate a reason or an appropriate case by evidence – need to demonstrate that applicant will suffer hardship, inconvenience and prejudice – stay pending substantive hearing of appeal – Supreme Court Act s. 19

Cases cited:

PNG v Gulf Provincial Government [1994] PNGLR 34
Russels Trading Pty Ltd v Coca Cola Amatil (PNG) Pty Ltd SCA 17 dated 29.3.96
The Commissioner, Corrective Institution Services v Daniel Mollen SC513 dated 19.11.96
Henzy Yakham and 1 other v Dr Stuart Hamilton Merriam and one other SCA 94 (1996); The State v Dr Stuart Hamilton Merriam and one other SCA 95 (1996) 27.11.97
L.A. Jarden Collector Agency Pty Ltd & Anor v Masket Iangalio & Anor SC507 (1998) (unreported)
Ruma Construction Pty Ltd v Christopher Smith SC600 (1999) (unreported)
Post PNG Limited v Westpac Bank PNG Limited SC608 dated 26.5.99
NCD Water & Sewerage Limited trading as Eda Ranu v Sam Maskuman Tasion and Maskuman Limited SCA 36 dated 4.10.02
Davis v David Tasion SC364

Counsel:

E. Waifaf for the Applicant

G. Koi for the Respondent

RULING

(Application for leave to appeal and Application for stay)

3 March 2003

Davani .J: This is an application by the Applicant seeking leave to appeal against the National Court’s decision of 25th March 2002 when the said court refused to set aside its own orders made earlier on 26 November 2001. The Applicant is also seeking stay orders. I heard the both applications together.

Before considering arguments raised by both counsel, it is necessary that the court set out a brief chronology of this matter.

Chronology

1. 20 August 2001 - Respondent, as Plaintiff, filed a Writ of Summons and Statement of Claim in proceedings WS 1161 of 2001. (‘Summons’).
   
2. 31 August 2001 - Applicant, as Defendant, filed Notice of Intention to Defend.
   
3. 22 October 2001 - Applicant filed its Defence. Respondents contended that the Defence was filed out of time and that the Applicant should seek leave of the court to file its Defence.
   
4. 21 November 2001 - Respondent filed Application to strike out Applicant’s Defence.
   
5. 29 October 2001 to

20 December 2001 - Several adjournments by the National Court to allow Applicant time to prepare and file its client’s affidavit opposing the Respondents application.

6. 20 December 2001 - Court ordered the striking out of the Defence filed on 22nd October 2001 by the Applicants. The hearing and order was made in the Applicant’s absence.
   

The court also ordered that judgment be entered in the sum of K15,923.00 together with interest at 8% per annum and costs of the proceedings.

7. 11 March 2002 - Applicant filed Application to Set Aside Judgment of 20th December 2001.
   
8. 25 March 2002 - National Court dismissed Applicant’s Application to Set Aside.
   
9. 3 May 2002 - Applicants filed application in the Supreme Court seeking leave to Appeal the National Court’s decision of 25 March 2002.
   

Facts and the law

The Applicant submits that the National Court’s order of 25 March 2002 is interlocutory in nature and as such, leave is required. Section 14 (1) (3) (b) of the Supreme Court Act (‘SCA’) states;

"14. Civil appeals to the Supreme Court

(3) No appeal lies to the Supreme Court without leave of the Supreme Court –

...

(b) from an interlocutory judgment made or given by the National Court..."

Is the National Court’s order of 25 March 2002 interlocutory in nature? The position at law is that there are two tests to be applied when determining whether a decision is "interlocutory" or "final" in nature.

These are;

1. The court must look at the nature of the application to the court and not the order eventually made;
   
2. The court must look at whether the judgment or order made finally disposes of the rights of the disputing parties. (see L.A. Jarden Collector Agency Pty Ltd & Anor v Masket Iangalio & Anor SC507 (1998) (unreported); Ruma Construction Pty Ltd v Christopher Smith SC600 (1999) (unreported); Davis v David Tasion SC364; NCD Water & Sewerage Limited trading as Eda Ranu v Sam Maskuman Tasion and Maskuman Limited SCA 36 of 2002).
   

I will discuss each "test" together as related to this case.

Tests:

The order from which this application emanates is an application to set aside an ex parte judgment. When this application was refused, the situation reverted to that of the payment of K15, 923.00 by the Applicant to the Respondent. It in effect, reinforced the earlier order of 20 December 2001 to pay K15, 923.00. The order to pay K15, 923.00 was done after the National Court struck out the Applicant’s Defence. It was both an application for summary judgment, and an application for Default judgment. Judgment was for a liquidated amount.

The Applicant’s application, following that order, was an application to set aside, which was refused and which is now the subject of this application.

The order to pay K15,923.00 determined the finality of the Applicant and Respondent’s rights in relation to liability and quantum. Then, the refusal of the application to set aside meant the Applicant was and is required to pay the judgment debt of K15, 923.00, which it has already done. I have seen that the Respondent garnisheed the Applicant’s account for payment of that sum. The Applicant is now to pay the assessed costs. I will discuss that in the part relating to the motion to stay.

There is no question as to the finality of this order. The Applicant need not obtain leave of the court.

As is provided in O. 7 R. 5 of the Supreme Court Rules (SCR), the Applicant’s Application for Leave to Appeal may be treated as a Notice of Appeal if it sufficiently incorporates the grounds of appeal for the purposes of O. 7 R. 8 of the SCR. Or, the Applicant can file a Notice of Appeal within 21 days immediately after the date of this order. (see Henzy Yakham and 1 other v Dr Stuart Hamilton Merriam and one other SCA 94 of 1996; The State and one other v Dr Stuart Hamilton Merriam and one other SCA 95 of 1996 27th November 1997).

I order that the Applicant file the appropriate Notice of Appeal 21 days after the date of this order.

Application to Stay

The Applicants also moved an application for stay of payment of costs in WS 1161 of 2001 together with a stay of any other applications in WS 1161 of 2001, pending the substantive hearing and determination of this appeal. The Applicant’s Notice of Motion was filed on 2.12.02 and is supported by the affidavit of Michael N. Wilson, sworn on 28.11.02 and 20.12.02.

S. 19 of the Supreme Court Act (‘SCA’) is the general provision on stay. It provides;

"s. 19. Stay of Proceedings on appeal.

Unless otherwise ordered by the Supreme Court or a judge, an appeal, or an application for leave to appeal, to the Supreme Court, does not operate as a stay of proceedings."

It used to be the position that an applicant for stay must demonstrate the existence of "special" or "exceptional" circumstances before a stay can be granted (see PNG v Gulf Provincial Government [1994] PNGLR 34 and Russels Trading Pty Ltd v Coca Cola Amatil (PNG) Pty Ltd SCA No. 17 of 1996 dated 29.3.96). However in the Supreme Court cases of The Commissioner, Corrective Institution Services v Daniel Mollen SC513 dated 19.11.96 and Post PNG Limited v Westpac Bank PNG Limited SC608 dated 26.5.99, the court clarified and affirmed the position that "special" or "exceptional" circumstances is no longer the test but that the applicant need only demonstrate a reason or an appropriate case by evidence for the court to exercise a discretion in its favour.

For me to be satisfied that this is an appropriate case for a stay, I will consider the evidence before me. The evidence, the affidavit of Michael Wilson sworn on 28.11.02 and 20.12.02, depose to a claim by the Respondent against the Applicant for refund of air conditioning charges of K3,923.49 and costs of installation of partitions of K12,000.00, together with interest and costs. The Applicant submits this matter is an appropriate case for stay orders because;

1. The Respondent in proceedings in the court below, sued the wrong party and successfully obtained judgment against the Applicant. Mr Wilson refers to annexure I to Michael Wilson'’ affidavit sworn on 20.12.02, which is a sublease between "Monian Haus Limited" as Lessor as "Yapao Lawyers" as the Lessee;
   
2. The Summons names a "Niuslik Holdings Limited trading as Ray White Papua New Guinea" as the Defendant, clearly not the lessor. This sublease is signed by "M. Salter" for the Lessor "Monian Haus Limited" ("Monian") and "G. Yapao" for the Lessee, "Yapao Lawyers". "G. Yapao" also signed the sublease as Guarantor;
   
3. In the Applicant’s Defence filed on 22.10.01, it pleaded that fact and also that the Respondent was indebted to the Applicant, as Monian’s agent, in various amounts for outstanding rent, electricity arrears and bank fees.
   
4. A company search attached as annexure ‘B’ to Michael Wilson’s affidavit sworn on 20.12. 02 shows "Monian Haus Limited" to be a separate legal entity to the Applicant.
   

The affidavit material holds evidence that a wrong party may have been sued. Even then, the Respondent proceeded to garnish the Applicant’s account and has already received the judgment monies of K15,923.00. It now awaits the taxed costs of K4,836.15.

Clearly, the Applicant has demonstrated that it will suffer hardship, inconvenience and prejudice if the National Court proceedings are not stayed pending the substantive hearing of the appeal.

Court orders

I order as follows;

1. Application for leave is refused;
   
2. The Applicant has 21 days within which to file the appropriate Notice of Appeal;
   
3. Application by the Respondent to enter judgment for taxed costs in proceedings WS 1161 of 2001, application to be made under O. 22 R. 62 of the National Court Rules, is stayed pending the full hearing of this appeal;
   
4. Any other applications or proceedings in this court or the court below with respect to WS 1161 of 2001 are stayed pending the full hearing of this appeal;
   
5. Costs of this application is reserved for argument at the hearing of this appeal;
   
6. Time is abridged to time of settlement to take place forthwith.
   

_____________________________________________________________________
Lawyer for the Applicant : Warner Shand Lawyers
Lawyer for the Respondent : Yapao and Peri Lawyers