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Mirupasi v Tulapi [2007] PGNC 108; N3249 (7 May 2007)

N3249

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO. 632 OF 2002

BETWEEN

VINCENT MIRUPASI
Petitioner

AND

DANIEL TULAPI
Respondent

Waigani: Injia DCJ
2007: 4, 7 May

CIVIL - PRACTICE AND PROCEDURE –Application to rescind insolvency order – Grounds – Petition for insolvency filed in breach of s.27 of Insolvency Act – Petition not signed by Petitioner – Return Date of Petition fixed in breach of 14 days requirement under s 32 of Insolvency Act –Insolvency Order rescinded – Insolvency Act ( Ch. No. 253), ss 50, 27, 28 & 32.

No Cases Cited

Counsel:

M. Titus, for the Petitioner
D. Tulapi in person

7 May, 2007

1. INJIA, DCJ: Mr Tulapi applies to "rescind" an insolvency order made against him by the National Court on 19 December 2002. The application is made under s 150 of the Insolvency Act (Ch 253) ("the Act"). The petitioner contests the application and in turn has filed his own application to "extend the insolvency order previously renewed by the National Court, for twelve months". The petitioner’s application is also made under s 150 of the Act. Both parties filed affidavit evidence and made written and oral submissions which I have considered.

2. The issue before the Court is whether this Court has jurisdiction to review or revisit its final judgment/order and set it aside. If so, how should that jurisdiction be exercised in this case. If Mr Tulapi’s application is unsuccessful, the Court will determine whether the insolvency order should be renewed or extended.

3. Mr Tulapi submits this Court has jurisdiction given by s 150 to revisit an insolvency order made under the Act and if satisfied proper grounds exist for the exercise of the jurisdiction in favour of the applicant, then the Court should rescind the order. Mr Titus for the petitioner submits the insolvency order is a final order or judgment which was appealed against but the appeal was dismissed. This Court has no jurisdiction to set aside that final order.

4. In my view, s 150 is clear as to this Court’s jurisdiction to revisit an order made under the Act and if appropriate and sufficient grounds are shown this Court can set aside or rescind the order. An insolvency order, regardless of whether it is interim or final, made under the Act comes within the meaning of "an order" under s 150. The jurisdiction is conferred by statute and it is not a matter of inherent power under the common law or otherwise. This jurisdiction is an additional power and different to the Court’s power to issue certificate of discharge under s 132 – s 138 of the Act.
   
5. The grounds relied upon by Mr Tulapi go to the competency of the Petition filed under the Act and the procedural manner in which an ex parte hearing was conducted which deprived him of the opportunity to defend the petition. I am satisfied that the Petition filed on 4 December 2002 was not signed by the Petitioner as required by s 27. When s 27 says "a creditor’s petition shall be signed by the Petitioner", it means the petitioner in person. In the present case Mr Muriso Pokia, an employee of Mirupasi Lawyers, signed the Petition (which was signed by Mr Pokia).
   
6. Mr Titus submits Mr Pokia’s signature comes under the phrase "or a person authorized by Section 28 to verify the petition". In my view, Subsection (1) of s 28 provides for the petitioner to verify, by oath, his own petition. This provision has no application to this case. In this case, the petitioner verified a petition which was signed by someone else. Subsections (2) and (3) of s 28 provide for a petition by a corporation and partnership businesses to be verified by the appropriate authorized officer or business partner. These subsections have no application to this petition. Subsection (4) which provides for an authorized attorney or agent to verify the petition if the petitioner is out of the country also has no application to this case. In this case the petitioner was in the country and he verified his own petition.
   
7. The requirement that the petitioner must sign his own petition is a mandatory requirement of a statute. Failure to comply with this mandatory requirement is fatal to the validity of a petition in the first place. It also follows that any proceedings conducted on an invalid petition are vitiated by this fundamental flaw in the procedure. This is analogous to an election petition filed under the Organic Law on National and Local – Level Government Elections which is struck out for failing to comply with the mandatory requirement of s 208 (c) of that Organic Law because the petition is not signed by the petitioner.
   
8. I am also satisfied that the petition was made returnable to the Court in breach of the time limit prescribed by s 32 of the Act. As a result Mr Tulapi was denied the opportunity to defend the petition. The petition was filed on 15 December 2002 and made returnable on 18 December. The Petition was served on Mr Tulapi on 15 December. Section 32 says that "if at the expiration of – (a) four days after service ... the debtor has not entered an appearance to the petition at the place appointed by the Summons, the Court may, on proof of service, proceed to adjudicate the debtor insolvent". The petition came before Kandakasi J on 18 December 2002. This was on the fourth day after service of the petition or on the third day after service if one excludes the day of service. On that day Mr Tulapi had other commitments and he was unable to attend. Mr Titus submits the hearing was adjourned to the 19 so that complied with s 32(a). In my view a breach of that provision had occurred already when the matter came before the Court on the 18th and the adjournment did not cure that breach.
   

9. The other deficiency is that the Summons endorsed on the petition said "you (Mr Tulapi) are required to enter an appearance to this petition within fourteen (14) days (exclusive of the day of service) after the service of it on you, otherwise you may be adjudicated insolvent". The return date fixed on the cover page of the petition was 18 December which is only 4 days from the date of service. As such the petitioner was not given adequate time and opportunity to enter an appearance and the hearing of the petition proceeded prematurely in his absence, before the National Court.

10. Matters of procedural competency of the type relied upon by Mr Tulapi and referred to above are relevant to the exercise of the Court’s jurisdiction under s 150. I am satisfied that the petition was incompetent and the hearing conducted on 18th and 19 December were also incompetent for reasons given above.

11. For these reasons, I rescind or set aside the insolvency order made on 19 December 2002. Having reached this result, it is not necessary to determine the petitioner’s application. As the Respondent does not dispute the judgment debt the subject of the creditor’s petition, I do not think it is fair to penalize the petitioner with costs of these proceedings. I order that each party bear their own costs of the proceedings.

_________________________

Mirupasi Lawyers: Lawyers for the Petitioner
Respondent in person