N6140

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 837 OF 2013

BETWEEN:
 
MICHAEL PUNDIA
First Plaintiff

AND

KALAKAI SERVICE STATION LIMITED
Second Plaintiff

AND

AUSTRALIA AND NEW ZEALAND BANKING GROUP (PNG) LTD
First Defendant

AND

G&C INVESTMENTS LIMITED
Second Defendant

AND

JOHN OFOI As The REGISTRAR OF TITLES. DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Mt Hagen: Frank, J
2015: 2nd October

PRACTICE AND PROCEDURE – Application for leave to file defence and cross claim Judgement – Principles Applicable

PRACTICE AND PROCEDURE – Default Judgement – Service of writ by ordinary mail – Circumstances where Application declined

PRACTICE AND PROCEDURE – Service by post Evidence of – Evidence of – Companies Act 1997, s 431 (1) (d) – Postal Services Act 1996, s 7 (3) – Interpretation Act Ch .2. S 5 (1) & (4)

Cases Cited:

Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 12
Chief Collector of Texas v Dickson Panel Works Pty Ltd and Others [1988] PNGLR 186
Christopher Smith v Ruma Construction (2002) SC 695
Kumul Builders Pty Ltd v Post and Telecommunication Corporation [1991] PNGLR 299
National Capital District Interim Commission v Bogibada Holdings Pty Ltd [1987] PNGLR 425
O'Connor v Popondeta Engineering and Transport Co Pty Ltd [1967 – 68] PNGLR 363
Oil Search Ltd v Mineral Resources Development Corporation Ltd (2010) SC1022
Ok Tedi Mining Ltd v Niugini Insurance Corporation and Ors. (No 2) [1988-89] PNGLR 425
Paula Haus Win Ltd v Francis Kunai; WS 665 of 2011 (unreported & unnumbered Judgement, Frank.J. 2 October 2015)
Telikon PNG Limited v ICCC (2007) N3144
The Papua Club Inc v Niugini Insurance Corporation and Ors. (No.2) N2273

Counsel:

Ms. V. Yobone, for the Plaintiffs
Mr. D. Levy, for the Second Defendant

2nd October, 2015 

1. FRANK J: The second defendant by an amended notice of motion filed on 21st July 2015 applies for leave to file a defence and cross claim out of time, and the plaintiffs, by a notice of motion filed on 17th July 2015, apply for default judgement. There was no appearance on behalf of the first, third and forth defendants. Mr. Levy of counsel for the second defendant informed the court that the first defendant supports the second defendant for the relief sought in the amended notion, and handed up a copy of the first defendant's lawyer's letter to the second defendant's lawyers dated 4th August 2015, which confirms that position.

2. I deal with the second defendant's motion first. The second defendant's motion is supported by the affidavit of Gabriel Pepson swon 30th June 2015 and filed on the 3rd July 2015, from the date which I set out the following chronology of events:

2.1 31 July 2013 - the Writ of Summons. Statement of claim ("Writ") was filed:

2.2 End of February - the Writ was received by the second Defendant:

2.3 Early March 2015 - Mr. Pepson approached Kopunye Lawyers to represent the second Defendant in this proceeding:

2.4 Mid March 2015 - Kopunye Lawyers refused the second Defendant's instructions:

2.5 April 2015 - Mr. Pepeson approached Warner Shand Lawyers to accept his instructions to act for the second defendant in this proceeding. Warner Shand Lawyers did not respond to Mr. Pepson's request despite his follow-up attendances until the end of April 2015:

2.6 Early May 2015 - Mr. Pepson instructed Manase & Co. Lawyers who accepted instructions to Act for the second defendant in this proceeding:

2.7 22 June 2015 - a notice of intention to defend was filled On behalf of the second defendant by its Lawyer:

2.8 3 July 2015 - a notice of motion was filed on behalf Of the second defendant:

2.9 3 July 2015 - Mr. Pepson's affidavit was filed;

2.10 22 July 2015 - The amended notice of motion was filed On behalf of the second defendant:

2.11 25 June 2015 - The second defendant's notice of intension defend was served on the plaintiff:

2.12 15 May 2015 - a notice of appearance was filed by Manase & Co. Lawyers on behalf of the second defendant.

3. The relevant considerations in respect of an application for extension of time in which to file a defence, to which counsel for both the second defendant and the plaintiffs agreed are:

(a)	Where there is an explanation why the defence was not filed within the time prescribed for doing so;

(b)	Whether there has been delay, and if so, whether there is a reasonable explanation for the delay: and

(c)	 Whether the defendant has a defence on the merits: Christopher Smith v Ruma Construction (2002) sc 695

4. The second defendant submits that on the basis of those matters set out in subparagraphs 2.2 to 2.12, there is a reasonable explanation why a defence has not filed within the time prescribed. The plaintiff submits that the date when Mr. Pepson says the second defendant received the Writ may be due to the failure of the second defendant in not checking its mail box.

5. To ascertain whether a reasonable explanation exists for not filing its defence within the prescribed period and whether the second defendant's motion has been filed and moved promptly, I start with the date when the Writ was served on the second defendant. Neither the plaintiff's nor the second defendant made any submissions in this respect.

6. The plaintiff says that the Writ was posted on 11th September 2014 to the postal address of the second defendant, namely P. O. Box 463, Boroko, National Capital District. Going by the second defendant's evidence, it took five months before the second defendant received the Writ. The Writ required that a notice of intention to defend be filed within 30 days of service of the Writ. A defence is required to be filed within 14 days upon the expiry of the 30 day period prescribed for filling a notice of intention to defend.

7. Neither party made submissions as to what the appropriate period is for service to be effected by ordinary mail for the purpose of determining the date when service of the Writ was effected on the second defendant and how I should arrive at that conclusion.

8. Section 7 (3) of the Postal Services Act 1996 (As Amended) is also relevant as to the extent of the obligation of Post PNG with respect to letters sent through it by ordinary mail. I set out section 7 in full:

 "7. Post PNG functions and objectives.

(1)	 Post PNG shall supply a letter of service for the carriage within Papua New Guinea, by ordinary post, of letters that are Standard postal articles.

(2)	 It is the objective of Post PNG that in view of the social important Of the letter of service, the service be made available to as many People in Papua New Guinea as are commercially practicable.

(3)	 The letter of service referred to in this section includes only delivery of a letter to the post office nearest to the recipient's address, for collection by the recipient or his agent from that post office and does not include any obligation to deliver the letter to the recipient's address or premises. "(Underlining added)

9. Section 5 of the Interpretation Act Ch. 2 is relevant. It provides: 

 "5. MEANING OF "SERVICE BY POST "; ETC.

(1)	Where a statutory provision authorizes or requires a document to be served by post (whether the expression "serve" or the expression "gives "or "send" or any other expression is used)then unless the contrary intention appears the service shall be deemed to be effected by properly addressing. Pre-paying (except where under a law the document may be sent by post free of charge) and posting the document as a letter. 

(2)	Subject to Subsections (3) and (4), where a document is served as provided for by Subsection (1), service shall, unless the contrary is proved, be deemed to have been effected at the time when the letter would be delivered in the ordinary course of post.

(3)	Where the person on whom the document is to be served ordinarily collects his mail, or has his mail collected, at a post office or other place at which mail is held by or on behalf of the Department or person responsible for posts for collection, service in accordance with Subsection (1) shall be deemed to have been effected when the document would, in the ordinary course of events, have been collected. 

(4)	Where the person on whom the document is to served has given, generally or in a particular case, a post office or other given, generally or in a particular case, a post office or other place as his postal address, service in accordance with Subsection (1) shall be deemed to have been effected when the document would, in the ordinary course of events, have been available for collection." (Underlining added) 

10. The combined effect of section 5 (1) and (4) and (4) of the Interpretation Act and subsection 7(3) of the Postal Services Act 1996 is that service of a document by ordinary mail will be deemed to occur on a date having regard to (a) the length of time it would ordinarily take for such mail to be moved from the post office where it is posted and placed in the mail box of the address ("mail box") for collection ("Delivery – period") and (b) in this case, the 30 days period prescribed in the Writ. It is necessary therefore for a party who is involved in as issue concerning service by ordinary mail to adduce evidence to assist the court to determine the Delivery – period. Once the court makes this determination. It only has to add on the period prescribed pursuant to order 4 Rule 11 (b) (i) to arrive at the period that must be allowed for service by ordinary mail to be effected ("service-period").

11. Any party who relies on service of a document by ordinary mail must adduce evidence to prove that service has been effected. The Lawyers for each party might have records of correspondence exchanged by ordinary mail between Port Moresby and Mt. Hagen in other matters with different parties in which it has been involved showing how long it took for such mail to be made available for collection at its addressee's mail box, or sourced such evidence from an officer of Post PNG who would in the ordinary course of his duties have knowledge of such fact. This exercise has been undertaken before. See O'Connor v Popendetta Engineering and Transport Co Pty Ltd [1967 – 68] PNGLR 186. There is no evidence of such matters in the affidavits relied on by either party in support of its position with respect to the determination of their respective motions. Neither party undertook such exercise.

12. In the result, the second defendant has failed to establish that the 5 months period or another period is the period I should accept as the Service- period. In Paula Haus Win Ltd v Francis Kunai; WS 665 of 2011 an unreported and unnumbered judgement. I delivered on 2nd October 2015. There was evidence which showed that it took 10 days for a letter posted in Mt. Hagen to be received by its addressee in Port Moresby. Even if I were to use that as a guide. I would still reach the same conclusion that no reasonable explanation has been given. I am not satisfied, therefore, that the 5 month period is attributable solely to the Delivery – period. In the result, the second defendant is unable to and has failed to provide a reasonable explanation for its default and for the period of delay prior to February 2015.

13. As to whether the second defendant's motion was filed promptly, I noted that it took about two months since receipt of its instructions, for the second defendant's Lawyers to file its motion. Part of this time would have involved taking steps to receive instructions and to search the court file. One would expect, howev3er, that this could be done within a month's period, and it there was any matter that hindered those steps, the second defendant could have explained such matter in an affidavit. It did not. It follows from this and the conclusion I have reached in paragraph 12 that the second defendant has failed to show that it has filed its motion promptly.

14. This proceeding concern a piece of land known as "NGNT" and described a Portion 1513, Milinch of Hagen, Fourmil of Ramu, Western Highlands Province and comprised in Certificate of Title Volume 29 Folio 1356 ("Property"). With respect to establishing that the second defendant has a defence on the merits, the plaintiff seeks, as against the second defendant, a relief that the registration of the transfer to the second defendant as the proprietor of the Property be declared null and void and cancelled. The plaintiffs do not allege any impropriety nor do they make any claim against the second defendant other to seek to declare registration of the transfer in favour of the second defendant as a nullity and for its cancellation.

15. The plaintiffs acknowledge that the second defendant is the registered proprietor of the Property and is entitled for that reason to defend its title and for this reason has a good defence. The evidence adduced by the second defendant is that the Property was advertised by the first as mortgagee in response to which the second defendant submitted a tender which was accepted following which the first defendant, as mortgagee, sold the Property to the second defendant.

16. Against the first defendant, the plaintiff seeks:

(a)	 Damages;

(b)	Declarations that-

(i). the transactions between the plaintiffs and the first defendant was Unfair and

(ii) the plaintiffs had completed their loan repayments to the first Defendant; and

(c)	An order directing the third defendant to register the first plaintiff as the proprietor of the Property, on the grounds that the conduct of the first defendant was harsh and oppressive and contrary to section 41 of the Constitution given that –

(i)	The Property was worth approximately K3.6 million;

(ii)	It was sold to the second defendant for K1.1 million;

(iii)	The first defendant deprived the plaintiffs of their right to redeem the Property by misinforming the plaintiffs of the details and status of the steps the first defendant took to sell the Property.

17. Notwithstanding that no allegation is made against the second defendant's conduct in acquiring title to the Property from the first defendant, the declaratory orders sought by the plaintiff's, if granted, will affect the second defendant's interest. No prejudice would be occasioned on the plaintiffs' who have joined the second defendant in acknowledgement that it is the registered proprietor of the Property.

18. In the circumstances, i conclude that, the second defendant has a good defence against the relief sought by the plaintiffs, and it should be allowed to defend its title to the Property.

19. The second defendant also seeks leave to file a cross claim against the plaintiffs for loss and damage alleged to have been occasioned by the plaintiffs. It says that there was a service station in operation situated on part of the Property ("Premises"),and the Premises was the subject of a lease ("Lease") at the time that it acquired the Property and on two subsequent occasions. The alleged loss and damaged is on an account of rentals, the second defendant says it would have earned;

(a)	In the sun of K261, 000.00. between February 2011 and June 2013 (29 months) ( " First Period" at a monthly rental rate of K9,000.00:

(b)	K156,000.00 between June 2013 and June 2014 (12 months) ("Second Period") at the monthly rate of K13,000.00;

(c)	K18, 000.00 between June 2014 and June 2015 (12 months) ("Third Period") at the monthly rate of K15, 000.00.

20. The First Period loss is alleged to be the result of the "continuously disturbances and disruptions caused by the second plaintiff..." The Second Period and Third Period losses are alleged to be the result of the Property being the subject of serious disputes between the plaintiffs and the second defendant. In circumstances where the first defendant had no issue with either the plaintiffs or the second defendant.

21. Should leave be granted to file a cross claim in respect of the proposed claim?

22. The plaintiff's submit that the loss and damaged alleged are to remote. The plaintiffs did not develop this submission to demonstrate why this is a ground for refusing leave to file a cross claim.

23. Orders 8 Rule 38 of the National Court Rules ("Rules") provides:

" (1) A party against whom a claim is made is proceedings and who Claims relief by the way of counter-claim, cross – action, set- off, Claim or otherwise may make his claim by filling a pleading By way of cross- claim in those proceedings.

(2) A cross- claimant may file a cross-claim within the time fixed for Filing his defence." (Underlining added)

24. A cross should therefore be filed with within the time period allowed for filing a defence. Where a defendant does not do so, the following considerations as to the nature, utility and scope of a cross claim, set out by the authors of Halsbury's Law of England, Fourth Edition, Volume 37. Are in my view, relevant and I adopt them in considering the second defendant's motion for leave to file the proposed cross claim;

A defendant who alleges that he has any claim or is entitled to any relief or remedy against the plaintiff in any action in respect of any matter, whenever and however arising, may make a counterclaim in respect of that matter instead of bringing a separate action: paragraph 248, pp. 186-187.

Under order 8 Rule 38 (1), a defendant may make a claim by way of a counter-claim, cross-action, set-off, third party claim or otherwise Nothing in order 8 Division 3 which suggests that a cross claim must arise from the same incident that has given rise to the plaintiff's action or that it must be against the plaintiff or a party already name in the plaintiff's action;

(a)	A counter claim must of such a nature that the court would have jurisdiction to entertain it as a separate action: paragraph 248. Pp. 186 – 187. In Oil Search Ltd v Mineral Resources Development Corporation Ltd (2010) SC1022, the Supreme Court in the context of considering and determining an appeal against a dismissal by the National Court of an application for the dismissal of the entire National Court proceedings on account of it being statue barred, held that a determination of whether or not a cause of action is time barred requires findings of (i) the cause of action, (ii) the date on which the cause of action occurred, and (iii) whether or not the cause of action is barred;

(b)	 A counterclaim thus has an independent life of its own, unaffected by anything which relates solely to the plaintiff's claim, and, once it has been made, a counterclaim may be proceeded with notwithstanding that judgement is given in the action or that the action is stayed, discontinued or dismissed: paragraph 248, pp.187. order 8 Rule 47 is of similar effect:

(c)	 The object of the procedure by counterclaims is to secure that, so far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of legal proceedings with respect to any of those matters is avoided; paragraph 248, fn.2. These principles apply

(i)	In this jurisdiction. In National Capital District Interim Commission v. Bogibada Holdings Pty Ltd [1987] PNGLR 135, the plaintiffs had instituted judicial review proceedings seeking declarations and damages. The claim for damages was abandoned. An issue arose whether the court had jurisdiction to grant declaratory relief only. It arose in circumstances where the Koki Market Trust had been abolished and vested the market in the plaintiff's. At that point, part of the property had been the subject of a lease to the first defendant. The plaintiffs raised issues as to the propriety of the lease to the first defendant in circumstances where two members of the Trust had established the first defendant and whether these individuals were in breach of their duties and responsibilities as trustees, and sought declarations that there was a breach of trust and that the lease was void and of no effect. It was also apparent to the court that the plaintiffs intended to take control of the market, and given that it was unable to reach any compromise with the first defendant it would have to take appropriate action to take control of the market, the plaintiffs intended to claim damages on account of profits, the result of which was that the relief sought would resolve only some of the issues, however, the other issues and relief would have to be pursued in separate and fresh proceedings. After concluding that it had jurisdiction to grant such relief under the second leg of the Constitution, section 155 (4), the court said:

"Any declaration is not able to settle the dispute. The plaintiff intends to make a claim for damages. The plaintiff may take action against Mr. Griffin for breach of trust. The issues sought in the declaration could be raid in these actions.

If I were to grant the declaration sought, I would be deciding the whole dispute between the parties in a peaceful manner. That is to say, the parties would now get certain questions of fact and law decide. That would hardly resolve the dispute between the plaintiff and the first defendant. If the declarations were granted in its favour, the plaintiff would with a claim of damages or account of profits in a separate action. This would not only escalate costs to parties but also encourage multiplicity of proceedings before the court. In my view, this should be discouraged in this jurisdiction. Litigants should be encouraged to bring all matters in a dispute in the one action to avoid a multiplicity of proceedings. An appropriate method of resolving all the issues would be by way of a writ. This would allow for proper pleading of all facts and issues of law for determination by the court. (Underlining added). See also Ok Tedi Mining Ltd v Nuigini Insurance Corporation and Ors.(No 2) [ 1988-89] PNGLR 425.

(ii)	Also in the context of –

(A)	Amendment of pleadings generally: The Papua Club Inc v Nusuam Holdings Ltd (2002) N2273: and

(B)	Joiner of parties and causes of action: order 5 Division 1.

(d)	With respect to the scope of a counterclaim, as a counterclaim operates substantially as a separate independent action, there is hardly any limit to it the scope in which it may be made. Thus, a claim founded on tort may be faced by a counterclaim founded on contract and vice versa, an equitable counterclaim may be raised in an action at law, and a legal counterclaim may be raised to an equitable claim. A counterclaim may be for a debt or liquidated demand or for unliquidated damages or for any other relief or remedy to which the defendant claims to be claims to be entitled, and it may be more or less than the amount of the plaintiff's claim. It may arise since the writ was issued. The defendant may make a counterclaim jointly against two plaintiffs making a joint claim or he may raise a separate counterclaim against each of them, and on a counterclaim against two plaintiffs, the defendant may recover judgement against one. Moreover, the plaintiff may raise a counterclaim to the counterclaim made by the defendant against him. The procedure by counterclaim operates virtually to assimilate the counterclaim to the position of a statement of claim indorsed other then the writ of summons, and to treat the defendant making it as if he were a defence to a statement of claim: paragraph 249, pp.187-188. Order 5 Division 1 and Order 8 Rule 38 reflect these principles:

1.	It has also been held that seeking different relief in separate proceedings when all different relief could be sought in one action may amount to an abuse of process: Telikom PNG Limited v ICCC (2007) N3144

2.	 From the matters set out in paragraphs 19 and 20, the nature of the second defendant's cause of action is clear. Although it could better clarify it, whether, for instance, or it is alleged:

(a)	 That the plaintiffs procured a breach of each Lease in circumstance where:

(i)	 the plaintiffs knew of the existence of the lease:

(ii)	 induced the Lessee to breach the Lease:

(iii)	 the loss and damage the second defendant alleges to have suffered is the direct result that breach; or

(b)	 The plaintiffs committed acts or use means unlawful against each Lessee which had pressured the Lessee, thereby intimidating the Lessee, as a result of which intimidation the Lessee withdrew from the Lease or ceased performance of it, and that the loss and damage alleged is the not apparent from the draft cross claim or its evidence as to the alleged act or means used by the plaintiffs and how it is alleged that such act or means is unlawful or the steps the Lessee took in response to such act or means and with reference to the Lease;

(c)	 The plaintiffs had unlawfully interfered with the business of the Lessee under each Lessee rendering it impossible for the Lessee to conduct its business under the Lease or resulting in withdrawal or termination by the Lessee of its Lease, and that the loss and damage alleged is the direct result of that unlawful interference.

3.	 The claim proposed to be pursued by the second defendant is consistent with the nature, utility and object of a cross claim and does not offend against any of these considerations and principles. It is apparent that the six years period from the commencement date of the First Period has no expired.

4.	 With respect to the plaintiffs objection to the second defendant's application for leave to file a cross claim on the basis that the claim sought to be introduced in the cross claim is too remote, the followings statements in Clerk & Lindsell on Torts, Thirteenth Edition, London, Sweet & Maxwell, 1969, on damage and remoteness are relevant:

(a)	 The existence in law of damage is governed by consideration such as the following:

(i)	The damage is a kind recognised by law. This can only be answered by knowing the law;

(ii)	That it was foreseeable, that the plaintiff would suffer such damage. Foresee ability is a question of fact; and

(iii)	The damaged complained or suffered must be of the same kind as that foreseen. This means that if the damage actually sustained is different in kind from that foreseen, it is said to be too remote. Otherwise, such damage alleged would be too remote; paragraph 46, pp.31-32.

(b)	 The issue of remoteness of damage is relevant to all torts where damage is necessary to a cause of action, so that an action for it will fail if the damage is too remote: Clerk & Lindsell (Supra) paragraph 77, p.48.

(c)	 Remoteness of damage is inextricably interwoven with the issues of duty of care in negligence cases and causation: Clerk & Lindsell ( Supra), paragraph 304, p 169;

(d)	 The question of remoteness of damage shades off into that of the measure of damages, so that whilst on one hand, it is not unfair that a man should have to pay for more than he bargained, on the other, no person is answerable indefinitely for each and very consequence that flows from his conduct: Clerk & Lindsell (Supra), paragraph 305, p. 170.

25. The net effect of these is that whether or not the loss and damage alleged is too remote is a matter that could only be properly determined at trial once all relevant facts have been determined and the law applicable to the cause of action is applied to such facts. The objection by the plaintiff s to the grant of leave for the second defendant to file a cross-claim on that point is therefore misconceived.

26. With the respect to the plaintiffs' application for default judgement, it is supported by the Affidavit of Search of Joe Maku sworn 13 July and filed 17th July 2015 and Affidavit of Veronica Yobone swon 13th July and filed 17th July 2015. According to Mr Maku, upon his search of court file on 13 July 2015 he discovered that the second defendant had filed a notice of intention to defend on 22 June 2015 and a notice of motion filed on 3rd July 2015 seeking leave to file a defence out of time.

27. According to the plaintiffs, the Writ was posted on 11th September 2014 to "P.O. B ox 464, Boroko" ("Mail Box").

28. Service of a writ or an originating process on a company may be effected by any one of the following modes prescribed in section 431(1) of the Companies Act 1997, which provides: 

"(1) Notwithstanding the provisions of any other Act, a document, including a writ, summons, notice, or order in any legal proceedings may be served on a company as follows:-

(a)	 by delivery to a person named as a director or the secretary of the  Company on the register;

(b)	 by delivery to an employee of the company at the company's head office or principal place of business;

(c)	 By leaving it at the company's registered office or address for service, or postal address:

(d)	 By posting it to the company's registered office, or address for service, or postal address:

(e)	By serving it in accordance with any directions as to service given by the court having jurisdiction in the proceedings:

(f)	In accordance with an agreement made with the company.

 (2) The methods of service specified in Subsection (1) are the only method by which a document in legal proceedings may be served on a company in the country." 

29. For the purpose of Section 431 (1) (d) of the Companies Act 1997, which is relevant here, the plaintiff must establish that the Mail Box is the registered office address or the address for service or postal address of the second defendant. No evidence was adduced to show that the Mail Box is the registered office or address for service for the second defendant. There is evidence, however showing that the Mail Box had been used as address for a company known as "Abidav Limited" (annexure "B to Mr. Pepson's affidavit) and that third parties have communicated with the second defendant through the postal address P.O.Box 7556, Boroko (draft Head Lease prepared by Allens comprising part annexure "E" to Mr. Pepson's affidavit) and a copy of letter from Puma Energy to the second defendant comprising annexure "F" to Mr Pepson's affidavit. I am not satisfied that the Writ has been served in compliance with section 431 (1) (d) of the Companies Act 1997. I dismiss the motion for default judgment.

30. The plaintiff's submit that assuming that delivery by post takes between two to three weeks, the second defendant should be deemed to have been served with the Writ by October 3013, and that on or about 8 August 2014 the plaintiffs gave written notice to the second defendant that the letter had failed to file a notice of intention to defend and defence and that as a result the plaintiffs have taken steps a apply for default judgement. A similar letter to that effect dated 22 October 2014 was given to the second defendant. The plaintiff says that despite such notices, the second defendant's default was not rectified.

31. The computation of the date when, according to the plaintiffs, the Writ should be deemed to have been served on the second defendant is based on the assumption referred to in the last preceding paragraph. The date "October 2013" is unsatisfactory and not based on evidence. The plaintiffs have therefore failed to prove that the Writ had been served on the date they have assumed or on any other date prior to February 2015. I also dismiss the motion for default judgement for this reason.

32. The plaintiff's also submit that I find, on the second defendant's evidence that it received the Writ in February 2015 or, to avoid any argument on the side of the second defendant as to the exact date, say 28 February 2015 and conclude that the second defendant was in default as the time for it to file its notice of intension to defend expired on 30th March 2015, and grant default judgement against the second defendant. Whilst the second defendant based on that evidence. In the exercise of my discretion, I will not grant the application as the exact date of service is not clear from it and I have already found that the second defendant has a defence on the merits.

33. In all the circumstances, I grant leave to the second defendant to file its defence and cross claim.

34. The second defendant has also sought orders that for service of copies of all documents files in this proceeding be served on it. The second defendant does not plead the jurisdictional basis for seeking such order. Order 4 Rule 49.8 provides that all motions must contain a concise reference to the Court's jurisdiction to grant the orders being sought. Under Order 4 Rule 49.20, a judge may dispense with the requirements of the rules in appropriate cases. Having granted the second defendant leave to file a defence and cross claim out of time, in order to facilitate the progress of this proceeding I grant the relief.

35. With respect to costs, under Order 22 Rule 11, if the court makes any orders as to costs, the court shall, subject to this order, order that the costs follow the event, except where it appears to the Court that some other order should made. Where a party applies for an extension of time, he shall, unless the court otherwise orders pay the costs of and occasioned by the application, or an order made in consequence of the application: Order 22 Rule 14. In this matter, the second defendant did not seek orders to set aside service of the Writ. The plaintiffs; application for default judgement did not succeed as they had assumed and thus failed to prove that the Writ had been served in October 2013. The second defendant has also failed to satisfy the court of the requirements to show a reasonable explanation why it had not filed its defence in time and show that its motion was filed promptly. The first defendant supported the motion of the second defendant's motion were served on the third and fourth defendants. In its own cost of an incidental to these motions.

36. The orders of the Court are:

(a) The notice of motion filed on 17th July 2015 is dismissed;

(b) Leave is granted to the second defendant to file and serve its defence and claim by Friday 16th October 2015;

(c) Each party shall serve copies of each and every document it has file in this proceedings on the second defendant within 14th days of service on it of these orders;

(d) Each party shall bear its own costs in respect of the notice of motion filed on 17th July 2015 and the amended notice of motion filed on 21 July 2015.

______________________________________________________
Yobone Lawyers: Lawyer for the Plaintiff
Manase & Co. Lawyers: Lawyers for the Second Defendant