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Eupo v AGC (Pacific) Ltd [1971-72] PNGLR 470 (17 March 1972)

[1971-72] PNGLR 470

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

EDRIC EUPO

V.

A.G.C. (PACIFIC) LTD.

Port Moresby
Kelly J

14 March 1972
17 March 1972

CONTRACT - Unenforceability - Formalities - Legislation requiring certain contracts to contain “full names and residences” of parties - Meaning of “residence” - Transactions with Natives Ordinance 1958-1963, s. 6 (1)[dxiv]1.

WORDS AND PHRASES - “Full names and residences” - Meaning of “residence” - Transactions with Natives Ordinance 1958-1963, s. 6 (1)[dxv]2.

By virtue of s. 6 (1) of the Transactions with Natives Ordinance, a contract to which a native is a party is unenforceable unless inter alia it contains “the full names and residences of every party thereto”.

Held:

That the test of “residence” in this context is subjective and not objective, and what the provision requires is that the residence of the party be described sufficiently to enable him to be readily found by the use of ordinary care.

In a hire-purchase agreement, the address of the hirer, a native, was shown as “Popondetta”. The hirer lived on a settlement scheme seven miles out of Popondetta, but he was well-known in Popondetta.

Held:

That it might reasonably be expected that a letter addressed to him simply as “Popondetta” would reach him, and anyone coming to Popondetta to seek him out would not have been likely to experience any difficulty in locating him and the agreement therefore contained a sufficient description of the hirer’s “residence” for the purpose of the section.

Briggs v. Boss (1868), L.R. 3 Q.B. 268, and Blount v. Harris [1878] UKLawRpKQB 82; (1878), 4 Q.B.D. 603, followed.

Appeal from District Court.

The respondent had claimed the sum of $863.53 as the balance of money owing under a hire-purchase agreement from the appellant, in the District Court. The magistrate entered judgment in favour of the respondent for the amount claimed together with costs. The grounds of appeal, and the facts upon which they were based, are fully stated in the judgment.

Counsel:

Campbell, for the appellant.
Griffin, for the respondent.
Cur. adv. vult.

17 March 1972

KELLY J: This is an appeal from the decision of a resident magistrate in the District Court whereby he gave judgment for the respondent, who was complainant in a proceeding against the appellant, in the sum of $863.53 together with costs. The respondent had claimed this sum as the balance of money owing under a hire-purchase agreement between the parties dated 11th April, 1968.

At the hearing two grounds of defence were raised on each of which the magistrate made a finding in favour of the respondent and these now form the substance of the grounds of appeal before me. The first is that there was a failure to comply with s. 6 (1) of the Transactions with Natives Ordinance 1958-1963 in that the agreement did not contain the residence of the appellant as hirer as required by that subsection and consequently the agreement was unenforceable. The second is that the appellant should have been given credit for the sum of $394.40 which he claimed he had paid in cash to a Mr. Munro of Steamships Trading Co. Ltd. at Popondetta at some time between January and May 1969, in the belief that this would be remitted to the respondent as a payment under the agreement but which the respondent asserts was not received by it.

The second matter may conveniently be disposed of at the outset. The magistrate who saw and heard the appellant was not prepared to accept his evidence as to the making of this payment and in his reasons for judgment he gives what to my mind are quite adequate reasons for taking this view. I can see no basis upon which I should disturb his finding on this matter and the appeal therefore fails on this ground.

The substantial ground is that relating to the alleged non-compliance with s. 6 (1) of the Transactions with Natives Ordinance. That subsection is in the following terms:

“Subject to this section a contract is unenforceable as against any party thereto unless the contract is in writing and contains the full names and residences of every party thereto and what is to be done under the contract by each of those persons and, in the case of a job contract or a contract to which the Administrator declares, by notice in the Gazette, that the provisions of this subsection apply, unless the contract is approved by an authorized officer.”

In the present instance there was no requirement for approval by an authorized officer. In the agreement the address of the appellant is shown as “Popondetta”. The evidence shows that at the time of entering into the agreement the appellant had a house on what is described as block 290, Sangara Soldier Settlement Scheme, this being situated some seven miles from the town of Popondetta. The appellant lived in this house and on the authorities it could properly be described as his “residence”. The question then is whether by showing his address in the agreement as being “Popondetta” there is compliance with the requirement in the Ordinance that his “residence” be contained in the agreement. It may be noted that the word “residence” is not used in the agreement and obviously the terms “address” and “residence” are not necessarily synonymous.

It was contended on behalf of the appellant that on a proper reading of the subsection the word “full” qualifies both “names” and “residences” and this being so more was required than merely giving a place name. I am unable to agree with this contention. Whilst the requirement might certainly have been expressed more clearly I do not think it should be read as though it referred to “full names” and “full residences”. The phrase “full name” is in common everyday use and has a well-known meaning, whereas the phrase “full residence” would be an ungrammatical and elliptical form of expression and I cannot think that the legislature can be taken as having intended to use it. In my view all that is required by the subsection is that the “residence” be shown.

There was evidence before the District Court that the appellant was a well-known figure in Popondetta having been formerly and until February 1968 the member of the House of Assembly for an electorate which embraced Popondetta and he was also a member of the Local Government Council. An officer of the Department of District Administration who had been stationed at Popondetta and who knew the appellant was of the opinion that a letter addressed to him at Popondetta and correctly addressed in his name would be likely to reach him, although the appellant himself had some reservations is to whether this would be so. The evidence also showed that the name Popondetta in addition to being the name of a town was also the name of the sub-district in which the appellant’s house was situated.

Counsel for the appellant submitted that the Ordinance was in the nature of protective legislation being designed to protect a class of persons and that it should therefore be given the widest possible interpretation and that most favourable to those intended to be protected. Curiously enough, while s. 6 (1) in its original form provided that contracts which did not comply with the section should be unlawful and void as against a native, the amendment made in 1963 removed any reference to a native in the subsection so that whilst it admittedly appears in an Ordinance entitled “Transactions with Natives Ordinance” it is, on the face of it, of general application. No doubt the object of the legislation was to ensure that any contract, including of course one to which a native was a party, in order to be enforceable must be reduced to writing, contain sufficient identification of the parties and also set out what is to be done under the contract, but in requiring that the residence of each party be shown it is hard to discern any intention beyond that of proper identification of the parties and of making it possible for them to be traced.

It was further submitted on behalf of the appellant that it was necessary to take an objective rather than a subjective view so that merely because in the event the appellant being well-known in the district might have been traced from the bare description of his residence as “Popondetta” this did not mean that this was sufficient to satisfy the requirements of the Ordinance. It was submitted that “residence” means the fullest and most comprehensive description of the place where the party concerned eats, sleeps and has his normal place of abode and that on the facts the description “Popondetta” did not satisfy this requirement.

Two decisions on the Bills of Sale Act, 1854 of the United Kingdom are of assistance in this regard. That legislation required that the bill of sale or a copy be filed within a prescribed period “together with an affidavit of the time of such bill of sale being made or given, and a description of the residence and occupation of the person making or giving the same . . . and of every attesting witness to such bill of sale”. In Briggs v. Boss[dxvi]3, it was held that an affidavit in which an attesting witness who was a clerk to an accountant and who managed a business for him at Hanley which had a population of 40,000 persons had stated “I reside at Hanley, in the county of Stafford, and am an accountant” contained a sufficient description of the residence and occupation of the attesting witness for the purpose of the Act. Blackburn J., at p. 270 said: “The description, as it seems to me, must be such as would enable a man readily and without difficulty to find out who the parties are. It is not enough that the description would not mislead, there must be sufficient to guide the person in his search.” His Lordship went on to point out that it was a question of degree but that in the case of a place such as Hanley under the circumstances the description was sufficient to have enabled an inquirer to find the witness readily. Mellor J., at p. 271, said: “As to the residence, the sufficiency of the description, where the name of the town only is given, must depend on the population of the place and the condition of life of the person.” Lush J. considered that the description was sufficiently minute to enable a stranger, making reasonable inquiries, to find out the person described.

In Blount v. Harris[dxvii]4 the attesting witness, who was a solicitor carrying on business in the city of London, stated he resided at “Acton,cton, in the city of London”. Acton is in Middlesex, and there is no Acton in the city of London. The Court of Appeal held that the residence of the attesting witness was sufficiently stated; for the words “in the city of London” might be rejected, and then it would become clear that Acton, in Middlesex, was the place intended to be mentioned. Bramwell L.J. at p. 605 decided the case upon the ground that the error in description was not calculated to mislead. Brett L.J. considered that the test was not whether the description affords the fullest means of knowledge, but whether by the use of ordinary care the person mentioned in the description could be found out and identified, and that in this case it was impossible that the mistake should mislead anyone.

Having regard to the view which I take as to the purpose of the legislation and applying the above decisions which to my mind are very much in point in the present circumstances, I consider that what the Ordinance requires is that the residence of the party be described sufficiently to enable him to be readily found by the use of ordinary care. The authorities to which I have referred lead me to the view that the test is subjective and not objective. The evidence here indicates that to set out the address of the appellant as Popondetta (even though in the agreement this is referred to as his “address” and not as his “residence”) would be sufficient to enable him to be readily found. The appellant is well-known in Popondetta and no doubt this would have been so both at the time of the making of the agreement and subsequently. It might reasonably be expected that a letter addressed to him simply as “Popondetta” would reach him and anyone coming to Popondetta to seek him out would not have been likely to experience any difficulty in locating him.

I therefore consider that the magistrate was correct in finding that the address shown in the agreement as Popondetta was sufficient description of residence as required by s. 6 of the Transactions with Natives Ordinance. The consequence is that the contract is enforceable and the magistrate properly gave the judgment for the respondent which he did.

The appeal is therefore dismissed and the judgment appealed from affirmed.

Appeal dismissed.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.
Solicitor for the respondent: J. Anthony Griffin.

[dxiv]Infra p. 471
[dxv]Infra p. 471.
[dxvi] (1868) L.R. 3 QB. 268.
[dxvii][1878] UKLawRpKQB 82; (1878) 4 QBD. 603.