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George Page Pty Ltd v Malipu Bus Balakau trading as Kokope Enterprises [1982] PGNC 39; [1982] PNGLR 140 (24 March 1982)

Papua New Guinea Law Reports - 1982

[1982] PNGLR 140 - George Page Pty Ltd v Malipu Bus Balakau trading as Kokope Enterprises�

[1982] PNGLR 140

N375

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

GEORGE PAGE PTY. LTD.

V

MALIPU BUS BALAKAU TRADING AS

KOKOPE ENTERPRISES

Waigani

Greville Smith J

9 March 1982

24 March 1982

PRACTICE AND PROCEDURE - Application to set aside judgment by default - Onus of proof - Discretion - Matters going to exercise of discretion - Irregularity in proceeding - Absence of evidentiary material - Application refused - National Court Rules, O. 15 r. 10, O. 93 r. 18.

PRACTICE AND PROCEDURE - Service - Originating process - Business name - Address by description sufficient - Place where business carried on - Writ addressed to post office box - Business Names Act 1963, s. 31[xxvii]¹.

In proceedings issued out of the National Court, the plaintiff served the originating process upon the defendant by posting it addressed to Malipu Bus Balakau trading as Kokope Enterprises to its registered postal address in Mt. Hagen.

On an application by the defendant to set aside a judgment by default on the ground, inter alia, that the writ was not addressed to the defendant �at the place where business is carried on� as required by s. 31(1) and s. 31(3)(c)(i) of the Business Names Act 1963:

Held

N1>(1)����� Section 31(3)(c)(i) does not expressly require that mail be addressed by name and it will be sufficient in an appropriate case to use an address by description;

N1>(2)����� One of the �places� at which business was carried on included Mt. Hagen and it could not be said that the writ was not sent to a �place where business is carried on�.

N1>(3)����� The onus of establishing that an order setting aside a judgment obtained in default should be granted is on the applicant.

N1>(4)����� Semble, the onus of establishing that an order setting aside a �proceeding for irregularity� pursuant to O. 93 r. 18 of the National Court Rules, is upon the applicant who must show that it is just that the order he seeks be made.

N1>(5)����� The power to set aside a judgment obtained in default under O. 15 r. 10 or under O. 93 r. 18 of the National Court Rules is discretionary: relevant to the exercise of that discretion is the absence of evidentiary material showing (a) a defence on the merits, (b) a reasonable explanation why judgment was allowed to go by default and/or (c) an explanation for any delay in applying to set aside.

N1>(6)����� There being no evidence to explain why judgment was allowed to go by default, no explanation of the delay in bringing the application and no material adverting to a defence on the merits the application should be refused.

Cases Cited

Anlaby v. Praetorius [1888] UKLawRpKQB 55; (1888) 20 Q.B.D. 764.

Barker v. The Government of P.N.G., Davis and Bux [1976] P.N.G.L.R. 340.

Evans v. Bartlam [1937] A.C. 473.

Green and Co. Pty. Ltd. v. Green [1976] P.N.G.L.R. 73.

Grimshaw v. Dunbar [1953] 1 Q.B. 408.

Neville v. Hanley [1888] VicLawRp 97; (1888) 14 V.L.R. 270.

Partridge v. Anantasas (1970) 3 N.S.W.R. 290.

Rosing v. Ben Shemesh [1960] VicRp 28; [1960] V.R. 173.

Notice of Motion

This was a notice of motion applying to set aside a judgment obtained by default.

Counsel

I. Shepherd, for the applicant (defendant).

J. Pakau, for the respondent (plaintiff).

Cur adv. vult.

24 March 1982

GREVILLE SMITH J: In this matter the respondent, as plaintiff, entered final judgment in default of appearance under the provisions of O. 15 r. 3 of the National Court Rules. Preparatory to so doing his solicitor, in compliance with O. 15 r. 2, filed an affidavit of service of the writ, par. 2 of which is as follows:

�I did on the 21st September, 1981, serve malipu bus balakau trading as kokope enterprises the abovenamed defendant in this action with the Writ of Summons annexed hereto and marked with the letter �A� by posting to its registered Postal Address by prepaid registered mail at Post Office Box 1252, Mount Hagen, Western Highlands Province, in Papua New Guinea pursuant to Section 31(2)(c)(i) of the Business Names Act 1963.�

The reference in that paragraph to �Section 31(2)(c)(i)� is an error, there being no such subsection, the reference intended obviously being to section 31(3)(c)(i).

Order 10 r. 1 of the National Court Rules provides, so far as it is relevant, that unless otherwise prescribed or allowed, service of an originating proceeding shall be made personally. Section 31(3)(c)(i) of the Business Names Act 1963 provides that service of any process on any person carrying on business under a business name registered under the Act by sending it by registered post addressed to the person at the �place where the business is carried on by the person� shall be deemed to be personal service on that person. Section 31 provides as follows:

N2>31.���� SERVICE OF NOTICE

(1)����� In this section, �the place where the business is carried on� means:

(a)����� the place shown in the register as the place where business is carried on; or

(b)����� where more than one place is shown on the register as the place where business is carried on:

N5>(i)������ the place shown in the register as the principal place where business is carried on; or

N5>(ii)����� where no place is shown as the principal place�the place shown which appears first in the register as a place where the business is carried on.

There is a further and later affidavit before the court filed on behalf of the respondent (plaintiff) which contains, inter alia, the following paragraphs:

N2>�2.����� On the 6th day of August 1981 I conducted a search at the Office of the Registrar of Business Names of kokope enterprises, which is Business Name No. 5882 registered under the provisions of the Business Names Act Chapter 145 Volume 5 of the Revised Laws of Papua New Guinea.

N2>3.������ The places shown at the Register where businesses are carried on are as follows:

(i)������ Mukuris Village, Kompiam, Kundis, Kandep and Laiagam, all in the Enga Province.

(ii)����� Kindeng and Avi, Mt. Hagen in the Western Highlands Province.�

The deponent also deposed that Malipu Bus Balakau the defendant �is the registered proprietor� of Kokope Enterprises, that when the defendant entered into the contract upon which the action, the subject matter of the writ, was based, he gave the address of Kokope Enterprises as P.O. Box 1252, Mt. Hagen, and that the writ was sent by registered post addressed to �The Proprietor, Kokope Enterprises, P.O. Box 1252, Mt. Hagen, Western Highlands Province�.

The applicant (defendant), who has himself placed no evidentiary material before the court, now moves to set aside the judgment by default under the provisions of O. 15 r. 10, on the ground that the writ was not, as required by s. 31(3)(c)(i) of the Business Names Act, �addressed to� the defendant �at the place where the business is carried on� because, first, it was not addressed to him by name, and because, secondly, it was addressed to a Post Office box which, he says, is obviously not where the business is in actuality carried on and because, thirdly, Mt. Hagen has not been shown to be the place where the business is carried on within that expression as defined by s. 31(1).

As to the first leg of the applicant (defendant)�s argument, s. 31(3)(c)(i) does not expressly require that the mail be addressed by name and I am of opinion that this provision may be satisfied in an appropriate case by an address by description; furthermore I am satisfied, upon the material before me, that the address by description used in this case was appropriate, and sufficient to meet this objection.

As to the second and third legs of this argument, as we have seen the term �the place where the business is carried on� is defined by s. 31 (1). The material in affidavit par. 3 aforementioned suggests that the definition in s. 31(1)(b) is the applicable one. However such material does not establish, in my opinion, whether one of the places shown in the register is �shown as the principal place where business is carried on� nor, indeed, does it establish which is the �place shown which appears first in the register as a place where the business is carried on�. I say this because affidavit par. 3 aforementioned is silent on both points, and does not purport to cite the register, that is, it does not purport to state the contents of the register that it does state in the form or order that such contents appear in the register.

Mount Hagen is shown as one of the places where the business is carried on, that much is clear. The writ was sent by registered post �addressed� to the person concerned at that place within the meaning of s. 31(3)(c)(i), and in the state of the material before me I am not satisfied that it was not sent addressed to him �at the place where the business is carried on� within the definition of that expression contained in s. 32(1). Nor am I satisfied that, reading the words �section 31(3)(c)(i)� in place of the words �section 31(2)(c)(i)� in affidavit par. 2 hereinbefore set out, of the first affidavit, there is any mis-statement of fact in that affidavit of service upon which judgment was entered.

Under O. 15 r. 10 the court has in my opinion an untrammelled discretion. Of course such a discretion must be exercised judicially. The onus is at this stage on the applicant (defendant) to show that the judgment should be set aside. In the circumstances of this case as outlined above, and the applicant (defendant) having placed, himself, no evidentiary material before the court on the abovementioned matters, and not having alleged that he did not receive the writ or notice of it in time to enter an appearance or at all, and not having alleged that he had a defence to the action, I think I should decline an order setting aside the service and decline an order setting aside the judgment entered, which is the relief sought.

The foregoing would be sufficient to dispose of the matter and to found the order I propose to make, namely that the application to set aside service and judgment be dismissed and that the respondent (plaintiff) have his costs against the applicant (defendant). However I shall add as follows.

I am satisfied as a matter of probability on the material before me that the applicant (defendant) did receive the writ and I so find. I might mention here that counsel for the applicant (defendant) said something about not having had much time to get instructions from his client, upon which I raised the possibility of an adjournment, which suggestion, however, was not taken up by counsel for the applicant (defendant) whom, I would also observe, is not a counsel who would not know what he was doing.

Since, in my view, the applicant (defendant) did receive the writ, then if the mode of service had not in fact been in compliance with the relevant statutory provisions the service would, under the provisions of O. 93 r. 17 be, not a nullity, as in a case where the applicant (defendant) had not received the writ, or knowledge of it, but an irregularity, �unless the court or a judge so directs�.

Assuming that the service of the writ was irregular under the provisions of O. 93 r. 17 the court has, once again, a discretion as to how it shall deal with the situation, and of course it is for the applicant to show that it is just that the order he seeks should be made. He who asserts must prove.

Order 93 r. 18 provides that an application to set aside a proceeding for irregularity shall not be allowed unless it is made within a reasonable time.

An example of a refusal to set aside judgment on the ground that the application was not made in a reasonable time is to be found in Neville v. Hanley [1888] VicLawRp 97; (1888) 14 V.L.R. 270.

The writ was posted on 21st September, 1981. I have found that it was received. In the absence of evidence to the contrary I feel entitled to find and I do find, that it was received about the end of that month. As a specially endorsed writ under O. 6 r. 7 the writ bore the usual endorsement to the effect that in default of pleading within ten days the plaintiff may obtain judgment. Further, on 29th October, the respondent(plaintiff)�s solicitor �wrote to the defendant ... at Post Office Box 170, Wabag ...� as it is deposed, advising him that on 26th October, 1981, judgment was entered against him in the sum of K4,481.80 with costs. The deposition states that this letter was sent on 29th September, 1981, but the carbon copy letter annexed to the affidavit shows that the letter was dated 29th October, 1981, and it is clear that the word �September� was inserted in error and should read �October�. There is no evidence other than such as may be afforded by the foregoing affidavit except that Box 170, Wabag was one of the applicant (defendant)�s post office boxes, except perhaps that, as has been seen, the applicant (defendant) carries on business at a number of places in Enga. However it was not sought on behalf of that party to take issue upon this particular point, either by cross-examination, evidence contra, or even a submission. One bears in mind that if an affidavit by the applicant (respondent) had been filed he would have been open to cross-examination not only upon his statements in such affidavit but upon all relevant matters generally. And on 2nd December, 1981, a writ of fieri facias was forwarded by post to the Police Station Commander at Mt. Hagen, under cover of an instructional letter, based upon the judgment that it is now sought to set aside. The notice of motion upon which this application is based was not filed until 3rd March, 1981, and no attempt has been made to explain the lapse of time that has taken place. To my mind there is here a prima facie case of unreasonable delay, not to mention some positive evidence, perhaps slight, that the applicant (defendant) was indebted as alleged in the writ.

Upon the assumption that the writ was not forwarded in conformity with the relevant requirements, I hold that no reason has been shown, either by way of undue prejudice to the applicant (defendant) or otherwise, why I should order, under the provisions of O. 93 r. 17, that any proceeding shall be rendered invalid, nor any reason shown why I should hold that the application to set aside the service of the writ of the judgment should be allowed. In particular I hold that the positive and imperative requirement of O. 93 r. 18 that the application shall be made within a reasonable time has not been shown to have been fulfilled. In addition the applicant (defendant) has not said that he is not indebted as alleged or at all, or made any attempt to show that he has a bona fide defence, nor has he given any explanation why a defence was not lodged.

So far as my foregoing reference to O. 93 is concerned, I have considered the case of Anlaby v. Praetorius [1888] UKLawRpKQB 55; (1888) 20 Q.B.D. 764. In my opinion that case is distinguishable here in the same way as it was distinguished in Partridge v. Anantasas [1970] 3 N.S.W.R. 290 at p. 292, namely because the firstmentioned case involved a nullity, to which the English equivalent of O. 93 r. 17 could not apply, whilst in the instant case there was a service of the writ (as I have found that the writ did reach the applicant (defendant) albeit, as the applicant (defendant) would argue, and as I am presently supposing, a service in a form which did not comply with O. 10 r. 1.

I have been referred by counsel for the applicant (defendant) to a passage from the judgment of O�Leary J. in Green and Co. Pty. Ltd. v. Green [1976] P.N.G.L.R. 73, where his Honour says as follows, at p. 75:

�I have considered this matter in some detail because in cases of this kind the first question to be considered is whether or not the judgment is regularly entered. If it was irregularly entered then �the defendant is entitled to have it set aside ex debito justitiae and without terms�except as part of the condition of an order as to costs�; see Anlaby v. Praetorius [1888] UKLawRpKQB 55; (1888) 20 Q.B.D. 764; Daly v. Silley [1960] VicRp 57; (1960) V.R. 353; Gamble v. Killingsworth [1970] VicRp 22; (1970) V.R. 161, at p. 168. If, however, the judgment is one that has been regularly entered, then other considerations apply and I will refer to those hereafter.�

This passage which is �obiter dicta� because his Honour then went on to find that the judgment before him had in fact been regularly entered, cannot in any event be lifted from the judgment as a general statement of principle without distinguishing between an irregularity in acting under a rule and an irregularity independently of the rules. What his Honour said is true of the second but not of the first. If it were true of both then O. 93 r. 17 would have no meaning or effect. In Anlaby v. Praetorius (supra) Fry L.J. said, at p. 769:

�But in the present case we are not concerned with an instance of non-compliance with a rule, nor with an irregularity in acting under any rule. The irregular entry of judgment was made independently of any of the rules; the plaintiff had no right to obtain any judgment at all.�

In the instant case the plaintiff did have a right to serve the writ and, as I have found, he did serve it, and assuming that there was an irregularity in service it was an irregularity consisting only of a non-compliance with O. 10 r. 1. It would follow that entry of judgment, if it were tainted with such an earlier irregularity, would be irregular in the same way�an irregularity falling within O. 93 r. 17 which says, as I have already in substance remarked:

�Non-compliance with these rules ... shall not render any proceedings void ...� (The emphasis is of course mine.)

I shall now say something further about two matters, firstly my observation that the applicant (plaintiff) has not attempted to suggest that he has any defence, and my finding that this application is not shown to have been made in a reasonable time.

In Barker v. The Government of Papua New Guinea, Davis and Bux [1976] P.N.G.L.R. 340, Saldanha J. laid down that a judgment regularly obtained will not be set aside, as a matter of practice, unless the following conditions are fulfilled:

N2>1.������ There must be an affidavit stating facts showing a defence on the merits;

N2>2.������ There must be a reasonable explanation why judgment was allowed to go by default; and

N2>3.������ The application must be made promptly and within a reasonable time.

This leaves open the matter of a judgment obtained irregularly. In my opinion, ordinarily the same rules apply in the case of an irregularity which falls within the ambit of O. 93 r. 17. In The Supreme Court Practice, 1976 (4th ed.), Vol. 1 at p. 127 under the heading �Irregular Judgment� it is stated that �If it is desired to set the judgment aside for irregularity ... the affidavit in support should ... state the circumstances under which the default has arisen, and should disclose the nature of the defence ...�. In Evans v. Bartlam [1937] A.C. 473 at p. 480 Lord Atkins said that �... obviously the reason, if any, for allowing judgment and thereafter applying to set it aside is one of the matters to which the Court will have regard in exercising its discretion.�, and in Grimshaw v. Dunbar [1953] 1 Q.B. 408 at p. 416 Jenkins L.J. said �No doubt the judge is entitled to satisfy himself that the party applying has a bona fide intention of defending the action, and that there is some possibility of his doing so with success�. As pointed out by the court in Rosing v. Ben Shemesh [1960] VicRp 28; [1960] V.R. 173 at p. 176, the views expressed by Jenkins L.J. are conveniently summarized in the headnote as follows:

�When determining whether to exercise his jurisdiction ... to order a new trial, the ... judge should be influenced by the following considerations: First, the reason why the party failed to appear when the case was heard. Secondly, whether there has been any undue delay by the absent party in launching his proceedings for a new trial; delay in itself would not be important, but delay prejudicing the other party, or delay enabling rights of third parties to intervene, would be material. Thirdly, whether the other party would be prejudiced by a new trial in any respect which could not be adequately compensated by a suitable award of costs. ...�

In each of these cases the court was dealing with the matter of an application to set aside a judgment regularly obtained. However I see no reason why the same reasoning should not apply to an application to set aside a judgment irregularly obtained, where the irregularity is one which falls within O. 93 r. 17 and where the court is, once again, exercising an untrammelled discretion with a view to doing justice.

As to my finding that the application is not shown to have been made within a reasonable time; as I have already indicated, that an application to set aside any proceeding shall not be allowed unless it is made within a reasonable time is a positive requirement of O. 93 r. 18, the applicant (plaintiff) must show that he is entitled to the relief he claims, and to do this he has to show, inter alia, that the delay that I have referred to was �reasonable�. The reason for this provision is obvious. A person who believes that he has a judgment in his favour, in this instance for a substantial sum of money, is almost certain over a period of time to change his position on that basis, and it is not just, in general, that a person against whom the judgment has been given, should be allowed, with impunity, without good reason to chance such a situation building up. Unreasonable delay also raises questions, which should be answered, as to the �bona fides� of an application to set aside. Delaying such an application for as long as possible, if the application could then succeed, would be a device whereby a judgment debtor without a �bona fide� defence could postpone the final day of reckoning.

The order of the court is that the application be dismissed. The plaintiff (respondent) shall have his costs against the applicant (defendant).

Application dismissed.

Solicitor for the plaintiff (respondent): Russell Hay & Associates.

Solicitor for the defendant (applicant): Beresford Love & Company.