Kanturk Ltd v Kawage [2016] PGNC 112; N6330 (16 May 2016)

N6330

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (COMM) 1416 of 2015

BETWEEN:

KANTURK LIMITED
Plaintiff

AND:

JOE KAWAGE
Defendant

Waigani: Hartshorn J.

2016: 10^th, 16^th May

Application to set aside service of Originating Process – Order 7 Rule 7(2)(b) National Court Rules – Applicant has filed a notice of intention to defend – Order 6 Rules 2(1) and (3) National Court Rules considered

Counsel:

Mr. S. Gor, for the Plaintiff
Mr. J. Kumura, for the Defendant

16^th May, 2016
1. HARTSHORN, J: This is a decision on an application to set aside the purported service of the writ of summons upon the defendant. The application is opposed by the plaintiff.

Background

2. The plaintiff claims that it entered into a contract with the defendant for the purchase of a property at Allotment 27 Section 70 Hohola, National Capital District. A contract and memorandum of transfer were signed and stamped, and ministerial approval was obtained. The defendant has refused to settle and complete the transaction. The plaintiff seeks substantively an order to the effect that amongst others, the contract be specifically performed.

This application

3. The defendant applies to set aside the purported service of the writ of summons on the ground that it was not personally served upon the defendant and that personal service of the writ of summons is required. The application is made pursuant to Order 7 Rule 7 (2) (b) and Rule 8(a) and (c) National Court Rules.

4. The plaintiff submits that the application should be refused as:

a) The defendant was difficult to locate as the defendant deliberately avoided officers or agents of the plaintiff;

b) It is not disputed that service of the writ of summons was at the defendant’s residence;

c) The evidence demonstrates that the defendant is well aware of this proceeding;

d) A notice of intention to defend has been filed on behalf of the defendant.

Consideration

5. The defendant submits that the writ of summons must be served personally pursuant to the National Court Rules. Order 6 Rule 2 (1) National Court Rules provides that:

“(1) Subject to any Act, and to these Rules, originating process shall be served personally on each defendant.”

6. So in this instance the writ of summons was required to be served on the defendant personally, by leaving a copy of the document with him, or if he did not accept the copy, by putting the copy down in his presence and telling him the nature of the document: Order 6 Rule 3(1) National Court Rules, subject to any Act, and to the National Court Rules.

7. On 15^th April 2016, the defendant filed three documents. They were the first documents filed by the defendant in this proceeding. One of those documents was the notice of motion seeking to set aside service of the writ of summons. The defendant was entitled to file this motion pursuant to Order 7 Rule 7(2) (b) National Court Rules which relevantly provides that:

“A defendant shall be entitled either before giving notice of intention to defend or within 14 days after giving that notice, to serve a notice of motion to set aside the service on him of the writ ...... on the ground that-

(b) the issue or service of the writ was irregular;”

8. One of the other documents that the defendant filed on 15^th April 2016 was a notice of intention to defend. The defendant submits that a notice of intention to defend is conditional notice and does not constitute a submission to the jurisdiction of the Court under Order 7 Rule 7(1). That may be, however Order 6 Rule 2(3) specifically provides for when a notice of intention to defend is served under Order 7.

9. Order 6 Rule 2(3) National Court Rules provides that:

“(3) Where a defendant to any originating process serves a notice of intention to defend under Order 7, the originating process shall be taken to have been served on him personally on the date on which the notice is filed or on such earlier date as may be proved.”

10. By virtue of Order 6 Rule 2(3) National Court Rules therefore, as the writ shall be taken as being served upon the defendant personally, the defendant by filing his notice of intention to defend has waived any irregularity in how the writ was served. In this regard, I note that Order 6 Rule 2(1) National Court Rules, which provides for personal service as referred to earlier, is subject to amongst others “these Rules” which includes Order 6 Rule 2(3). By being subject to “these Rules”, Order 6 Rule 2(1) envisages that there will be occasions when actual personal service will not be necessary for service of an originating process to be properly effected. The filing of a notice of intention to defend is one of those occasions by virtue of Order 6 Rule 2(3).

11. Consequently, notwithstanding that the defendant is entitled to apply to set aside the purported service of the writ, he is unable to rely on the ground that it was not personally served, as by filing a notice of intention to defend he has waived any irregularity in the writ’s service. As the defendant is only relying on the ground that the writ was not personally served, this application must fail. Given this it is not necessary to consider the other submissions of counsel.

Orders

12.
a) The relief sought in the defendant’s notice of motion filed 15^th April 2016 is refused;

b) The defendant shall pay the plaintiff’s costs of and incidental to the said notice of motion;

c) Time is abridged.

____________________________________________________________
Fiocco & Nutley Lawyers: Lawyers for the Plaintiff
Kumura Lawyers: Lawyers for the Defendant