Carrol v Sentawan (PNG) Ltd [2019] N9490
Successful claim for unpaid rent on the company's logpond.
Logging companies mentioned in this document:
N9490
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 1301 OF 2019
BETWEEN
ELIZABETH TINARONG CARROL
Plaintiff
AND
SENTAWAN (PNG) LTD
Defendant
Waigani: Linge AJ
2022: 09th March
PRACTICE AND PROCEDURES – application for summary disposal –
assessment of damages—unliquidated damages
LAND LAW– Breach of tenancy agreement- right to claim rent- interest at
commercial rate
Cases Cited:
Dekenai Constructions Limited v Michael N. Wilson & Koeya Perit /A Warner
Shand Wilson Lawyers, (unreported), WS No. 714 of 2017;
Daniel Don Kapi v Samuel Abal (2005) N2856.
Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112
Curtain Bros (Qld) Pty Ltd & Kinhill Kramer Pty Ltd v The State [1993]
PNGLR 285
Counsel:
Ms. Tongamp, for the Plaintiff
11th March, 2022
1. LINGE A J: This is a ruling on the Amended Notice of Motion filed on
the 21 February 2022. The application seeks orders for summary disposal of
the matter pursuant to Order 10 Rule 9A(1) (a) and (2) of the National Court
Rules or otherwise referred to as the National Court Listing Rules 2005.
Applicant also seeks leave to dispense with service requirement.
2. The application came before me on the 23 February 2022. Applicant is
represented by Counsel. No appearance is entered for the defendant/
respondent.
Facts
3. The cause of action relates to a Commercial Lease Agreement, dated 15
August 2007, between the plaintiff and the defendant over property described
as Portion 34 Millinch Muliama, Fourmil Feni, New Ireland.
4. The basic term of the Agreement is that the plaintiff leased her property
to the defendant for purposes of storing, marking, trimming and general
preparation of logs for loading and shipment.
5. Rental of the said property was agreed by parties at the rate of K2,500.00
per month exclusive of GST for a period of five (5) years.
6. The lease expired on the 15 August 2016 and the defendant continued to
occupy the property and in the main continue to pay K2,500.00 to the plaintiff
until the last payment of K2,500.00 made on the 16 August 2019.
7. In May 2017 parties had agreed in a revised rental of K10,000.00 per
month which became effective from May 2017; the defendant started to pay
on the new rate but then defaulted and reverted to paying the old rental rate of
K2,500.00 per month.
8. The plaintiff commenced this proceeding on the 11 October 2019
claiming outstanding rental for the period from 2016 to 2019.
Evidence
9. The plaintiff/applicant relies on the two (2) affidavits by the plaintiff both
filed on the 15 February 2022, one in support of the application and the other
for assessment of damages.
10. The summary of the plaintiff’s affidavit in support is as follows:
(a) Two weeks after the 9 August 2021 Court order her
lawyers wrote to Kuman Lawyers, who are acting for the defendant in
proceeding WS No,1367 of 2019 advising of the dismissal outcome of that
proceeding and also reminding the defendant’s lawyer that the Commercial
Lease Agreement remained terminated by letter of 13 September 2019, and
for the defendant to vacate the said property after one (1) month.
(b) On the 13 August 2021 her lawyer caused another letter to
the Defendant regarding the 9 August 2021 order and notifying the defendant
for matter to be set down for assessment and urging a response within
seven (7) days, but there was no response.
(c) Her lawyers tried to get in touch with defendant’s lawyer,
Mr.Titus but it proved difficult and no feedback.
(d) Out of frustration she instituted eviction proceeding against
the defendant at Kavieng District Court in respect of the property.
(e) On the 28 September 2021 finally, her lawyer got in touch
with Mr. Gaure Odu of Titus Lawyers, the defendant’s lawyers and sought
confirmation whether he was acting for the defendant and also notifying
him that the matter is now subject to assessment for damages.
(f)She deposes that despite the notification the defendant and his
lawyer had not responded at all.
11. On the plaintiff’s affidavit on Assessment of Damages the following is
the summary.
(a) In early January 2017, the defendant represented by Mr. Thomas
Tiew and plaintiff in the presence of her son and Mr. Amos Daniel agreed
that the defendant would continue to occupy her property being Portion
34, Milinch Muliama at a rental rate of K10,000.00 per month.
(b) The defendant then proceeded to make payment of
K10,000.00 per month soon after agreement was reached including
backdated payments to August 2016 as the initial lease agreement in July
2016.
(c) The defendant made rental payments at K10,000.00 per month for
months from August 2016, however, there were some intermittent
payments in between as set out in a table in her Statement of Claim and
as set out below, showing the outstanding to date.
(d) The defendant currently owes a total of K353,350.00 plus
interest as outstanding for the lease of the property to date.
(e) These recent calculations include the months of October,
December 2019 and January 2020 which were initially claimed in the
Statement of Claim at K40,000.00.
(f)However, the defendant whilst continuously occupying the land
even after lease was terminated and this proceeding instituted, kept
paying at the old, expired rate of K2,500.00.
(g) As such, some payments for these four months were made
as per the table above.
(h) Hence, the proper calculation would be to remove the
K40,000.00 outstanding included in the initial amount claimed in the
statement of claim and include the recent calculations reflecting
payments made:
Total Amount in the Statement of Claim =
K217,850.00
Minus the K40,000.00 for the four (4) months = K
40,000.00
Equals .................................................... =
K177,850.00
(i) The total outstanding confirmed in the Statement of Claim
excluding months of October, November, December 2019 and January
2020 would be K177,850.00 plus interest.
(j) The other arrears accumulating after this proceeding was filed in
Court commence from October 2019 to recent, September 2021 is now at
a total of K175,500.00.
(k) As such, the total arrears are now at K177,850.00 +
K175,500.00 = K353,350.00 plus interest.
(l) Plaintiff deposes that she is entitled to 15% per annum of the
overall total outstanding owed (K353,350.00) pursuant to Clause 8.1 (c) (ii)
(e) of the Commercial Lease Agreement, to be further multiplied by three (3)
years.
Submission by Counsel for Plaintiff
12. Ms Tongamp of counsel for the plaintiff/applicant submits based on the
affidavits and confirms the existence of a Commercial Lease Agreement
between the parties which expired on the 16 August 2016.
13. She also submits that during a round table discussion in May 2017 parties
agreed for rental to be increased to K10,000.00 per month and that following
the discussions the defendant started paying on the new rate of K10,000.00
but then defaulted, resulting in the termination of the Agreement by the
plaintiff.
14. Counsel submits that proceeding titled WS 367 of 2017 filed by the
defendant to restrain the plaintiff from the said property had been dismissed
with cost on the 15 July 2021.
15. She also submits that the defendant has not vacated the property after
their case was summarily dismissed on the 15 July 2021causing the plaintiff to
file ejectment proceedings against the defendant at the Kavieng District Court.
16. Ms Tongamp submits further that on the 9 August 2021, the Court
entered interim default judgment against the defendant in this proceeding.
17. In relation to the total outstanding rental to be paid by the defendant she
submits that the amount the court should consider for payment is
K353,350.00.
Ruling
18. The issue for my determination is whether this is an appropriate case for
entry of Summary Judgment against the defendant.
19. The plaintiff relies on Order 10 Rule 9A (15) 1 and 2 and Order 12 Rule
38 of the National Court Rules.
20. Order 10 Rule 9A (15) of the National Court Rules gives the court
discretion to summarily determine or summarily dispose of the matter. To
determine is to put an end usually where the plaintiff has not undertaken steps
to prosecute the matter. To summarily dispose is akin to summary judgment in
situations where there are non-compliance of orders or directions and/or non-
appearance at directions or listings hearing.
21. In Dekenai Constructions Limited v Michael N. Wilson & Koeya Peri T/A
Warner Shand Wilson Lawyers, (unreported) judgement), of Kariko J in WS
No. 714 of 2017, his Honour suggested the principles to be applied under this
Rule when considering applications seeking orders sought pursuant to O 10 R
9A (15) of the National Court Rules:
“(1) Orders of the Court and directions must be complied with, and non-
compliance shows disrespect to the Court and is at the peril of the
defending party.
(2) The defaulting party must provide a reasonable
explanation for the default and any application for extension of time to
comply must be made within the time period for compliance. See also
Daniel Don Kapi v Samuel Abal,(2005) N2856.”
22. In this case the evidence tendered in the affidavit of the plaintiff filed on
the 14 February 2022 deposes that since the Court Order of the 9 August 2021
which struck out the defence for failure to comply with an earlier direction of
the Court, the defendant had continued to be in non-compliance by not
appearing for listing and further direction hearings including setting down for
assessment of damages.
23. In relation to Order 12 Rule 38, the principle is settled in this
jurisdiction in Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112 and
followed in Curtain Bros (Qld) Pty Ltd & Kinhill Kramer Pty Ltd v The State
[1993] PNGLR 285, both Supreme Court decisions at pages 117 and 288
respectively identified two (2) elements involved in the rule as:
“(a) Evidence of the facts proving the essential elements
of the claim; and
(b) That the plaintiff or some responsible persons gives
evidence that in his belief there is no Défense.”
24. Courts have consistently considered and applied these principles based
on the merit and circumstance of each case depending on the oral and tendered
evidence of each case.
25. The defendant has continued to be in default of rental payment in
relation to the plaintiff’s property at Portion 34, Milinch Muliama, Fourmil
Feni, New Ireland and have no right to remain on the property.
26. Thus, pursuant to Order 10 Rule 9A (15) 1 and 2 of the National Court
Rules, I am satisfied that this proceeding be summarily disposed and in terms
of Order 12 Rule 28 of the National Court Rules summary judgment will be
entered for the plaintiff.
27. On Assessment of Damage, I have considered the unchallenged
affidavit evidence of the Plaintiff in relation to the Statement of Claim, and it
is my conclusion that the plaintiff is only entitled to what is pleaded plus
interest and any incidental costs.
28. Counsel submits for Court to consider and grant order for payment to
the plaintiff in the amount of K 353,350.00 made up of K 177,350.00 pleaded
in the Statement of Claim plus arrears of K 175,850.00 and in my view, this is
a fair amount under the circumstance.
Conclusion
29. On the evidence before me, I find that the non-compliance by the
defendant warrant my disposing of the matter. I have considered how I can do
that, and I am satisfied that the elements pertaining to summary judgment has
been properly established.
30. I have considered the interest of justice and in my view and based on
the conduct of the case it must favour the plaintiff.
Order
31. Accordingly, I order that:
(1) Summary Judgment is entered against the defendant for the
sum of K353,350.00.
(2) Interest at the Commercial Lease Agreement of 15 % is to
be further multiplied by three (3) years.
(3) The defendant is to pay cost of this proceeding.
(4) Time is abridged.
_______________________________________________________________
Sabo’s Lawyers: Lawyers for the Plaintiff
