Neways Enterprises v Yoshinori [2007] KIHC 14; Civil Appeal 24 of 2007 (13 February 2007)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Appeal 24 of 2007

Between:

NEWAYS ENTERPRISES
Appellant

And:

SUZUKI YOSHINORI
Respondent

For the Appellant: Mr Banuera Berina
For the Respondent: Ms Joelle Grover

Date of Hearing: 13 February 2007

JUDGMENT

The question is whether there has been effective service of a summons issued out of the Bikenibeu magistrates’ court. The summons was taken by the present respondent and two others to the office of the appellant. There an officer took the summons and went with it to the back office, returned with it, handed it back to respondent directing that the summons should be served on the mechanic, at his house in Bikenibeu, the mechanic who did the repairs. The respondent took the summons away and gave it to the mechanic. Come the day for hearing in the magistrates’ court and the appellant did not appear: the Single Magistrate decided service had been properly effected: judgment was given against the appellant.

Ms Grover has argued vigorously that the service should be regarded as good.

Service on a company is dealt with in S.142 of the Companies Ordinance: the subsections relevant to this case are (1) and (4) and (5): service is also dealt with in Order 9 rule 8.

Ms Grover cited two authorities – Ditfort v Teneby [1990] FCA 347; (97 ALR 409) (a case dealing with service in bankruptcy proceedings) and Allison Ltd v Limehouse – Cr (1992) 2 ALC 105. Having looked at those authorities – and especially in the latter at the opinion of Lord Goff of Chieveley @ p 126c) I have come to the conclusion that service was not good. That the appellant did not turn up at the hearing is some indication of that but that is not a decisive factor. Decisively the Companies Ordinance and the Rules provide for the mode of service on a company and they should be followed.

The respondent is due to leave Kiribati early next month. The justice of the matter requires an early hearing before he leaves. I shall ask the Chief Registrar to make arrangements for it.

The appeal is allowed, the decision of the Single Magistrate quashed and the case returned to the magistrates’ court for rehearing in accordance with these reasons.

Dated the 13th day of February 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice