Papua New Guinea Law Reports - 1988-89
[1988-89] PNGLR 42
N716
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WONG
V
HAUS BILAS CORPORATION (PNG) PTY LTD
Waigani
Andrew AJ
10 February 1989
13 February 1989
PRACTICE AND PROCEDURE - Application to set aside judgment by default - Judgment obtained on mistaken view of service under Companies Act - Service arguably proper under Rules of Court - Judgment irregularly obtained - Companies Act (Ch No 146), s 239(1) - National Court Rules, O 6, r 3(2).
Held
That where a default judgment was entered upon the mistaken belief that service of the writ of summons had been effected upon the defendant company at its registered office in accordance with s 394 of the Companies Act (Ch No 146), the default judgment was irregularly obtained and should be set aside, notwithstanding that there may have been sufficient service under O 6, r 3(2), of the National Court Rules.
Cases Cited
Green & Co Pty Ltd v Green [1976] PNGLR 73.
Motion
This was an application by way of notice of motion to set aside a default judgment.
Counsel
R Gunson, for the applicant/defendant.
J Shepherd, for the respondent/plaintiff.
Cur adv vult
13 February 1989
ANDREW AJ: This is an application by way of notice of motion for orders that the default judgment entered on 18 November 1988 be set aside as irregular on the basis that proper service of the writ of summons was not effected on the defendant.
It is not really disputed that the writ of summons in this matter was not served on the registered office of the defendant due to a misunderstanding of which office was the registered office. Service under the Companies Act (Ch No 146) is by way of service on the registered office (s 394). The applicant says therefore that the judgment was irregularly entered and should now be set aside.
If a judgment is irregularly entered, then the defendant is entitled to have it set aside: see Green & Co Pty Ltd v Green [1976] PNGLR 73.
The respondent says that whilst it is correct that the writ was not served on the registered office of the defendant company, it was served on an employee of the company who comes within the meaning of “officer” in O 6, r 3, of the National Court Rules and that, accordingly, there was proper service. Order 6, r 3(2), provides:
“Personal service of a document on a corporation may be effected by serving the document in accordance with sub-rule (1) on the mayor, chairman or president of the corporation, or on the town clerk, clerk, secretary, treasurer or other similar officer of the corporation.”
Mr Radha Krishna Sandilya was called to give evidence that he was an accountant employed by the defendant company (as well as by other companies) and that he was served with the writ of summons in this matter on 27 September 1988. To the best of his recollection, he gave it to Mr Victor Wong. He said that Mr Victor Wong was a director of Haus Bilas. However, I note from the affidavit of Mr Douglas Wong, the managing director of Haus Bilas, that Mr Victor Wong is not listed as one of the directors.
Section 394 of the Companies Act provides that service on companies under this section is “in addition to any other method of service provided for by or under this that or any other law ...”. This is a distinction from the English practice where the words “in addition” do not apply.
The affidavit of service would imply that service of the writ was being attempted under the provisions of the Companies Act and it is apparent that the Registrar of the National Court relied upon the affidavit of service when he entered judgment, namely, that service had been effected upon the registered office.
I have considered the arguments advanced as to whether or not Mr Sandilya was an “officer” or “clerk” within the meaning of O 6, r 3, but have come to the opinion that it is unnecessary to do so. I must accept the affidavit of Mr Douglas Wong that he was not aware of these proceedings until 23 November 1988, that is, after entry of judgment. Although there is evidence of correspondence to him before this date advising him of this, I must give him the benefit of the doubt as there is no clear evidence that he was so aware.
In my judgment, if service was attempted via the Companies Act upon the registered office of the company and the Registrar entered judgment upon that basis (albeit mistakenly), then I think that, in the circumstances of this case, it follows that the judgment was irregularly entered and that it would only be just therefore that the judgment be set aside and that the defendant be given leave to come in and defend the action. Although it can be argued that there was sufficient service under the National Court Rules, the fact remains that judgment was entered upon a mistaken belief that there had been service upon the registered office of the defendant office and, although it was really no fault of anyone, it was erroneous and hence the judgment was irregular.
I set aside the default judgment in this matter obtained on 18 November 1988 and I give leave to the defendant to defend the action.
Each party to pay its own costs.
Default judgment set aside
Lawyers for the applicant/defendant: Blake Dawson Waldron.
Lawyer for the respondent/plaintiff: K Y Kara.