Air Niugini Ltd v Warakai [2016] PGNC 355; N6578 (31 October 2016)

N6578

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 544 OF 2013

BETWEEN

AIR NIUGINI LIMITED
t/a AIR NIUGINI
Plaintiff

AND
ANTON WARAKAI
Defendant

Waigani: Hartshorn J
2016: 20^th & 31^st October

Application to dispense with service of notice of motion seeking to set aside statutory demand – s. 338 Companies Act

Cases cited:

Louis Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1144

Peter Makeng v. Timbers (PNG) Ltd (2008) N3317

Counsel:
Mr. E. Korua, for the Plaintiff
31^st October, 2016:

1. HARTSHORN J: This is a decision on an application to set aside a statutory demand pursuant to s.338 Companies Act. The application is by way of notice of motion.
   
2. The application was moved in the absence of the defendant or representation on his behalf and the court was requested to dispense with service of the notice of motion upon the defendant.
   

Background

3. The defendant purportedly served a statutory demand upon the plaintiff on 23^rd September 2013. In the statutory demand the defendant claims an amount for an alleged breach of an employment contract that the parties had with each other.
   

This application

4. The plaintiff seeks that the statutory demand be set aside as the alleged debt referred to in the demand is in dispute, and it has been the subject of court proceedings that have been determined in the plaintiff’s favour.
   
5. As mentioned, the plaintiff seeks to dispense with service of the notice of motion upon the defendant. I will deal with this issue first. The plaintiff relies upon s.155 (4) Constitution for various reasons and also Order 1 Rule 7 National Court Rules.
   

Consideration

6. It is noted that first, no application is made in the notice of motion by the plaintiff for service to be dispensed with. Secondly, s. 338 Companies Act provides:
   

“(1) The Court may, on the application of the company, set aside a statutory demand.
(2) The application shall be made, and served on the creditor, within one month of the date of service of the demand.
(3) No extension of time may be given for making or serving an application to have a statutory demand set aside, but, at the hearing of the application, the Court may extend the time for compliance with the statutory demand.”

7. As to Order 1 Rule National Court Rules, that Rule only allows the court to dispense with the requirements of the National Court Rules, not a statute.
   
8. As to s. 155 (4) Constitution, it is not the source of primary jurisdictional power: Peter Makeng v. Timbers (PNG) Ltd (2008) N3317 and cannot be applied to do anything contrary to or inconsistent with the provisions of the National Court Rules: Louis Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1144. Similarly, it cannot be applied to do anything contrary to or inconsistent with the provisions of a statute.
   
9. As s. 338 (2) Companies Act makes it mandatory that a creditor is served with an application to set aside by use of the word “shall” and s. 338 (3) provides that no extension of time may be given for serving an application to set aside, it would be inconsistent with the provisions of s. 338 for service of an application to set aside to be dispensed with.
   
10. Consequently, the application to dispense with service of the notice of motion should be refused. Further, as the notice of motion has not been served on the creditor with one month of the date of service of the statutory demand, contrary to s. 338 (2) Companies Act, the notice of motion should be dismissed.
    

Orders

11.
a) The application to dispense with service of the notice of motion of the plaintiff filed 23^rd October 2013 is refused;

b) The notice of motion of the plaintiff filed 23^rd October 2013 is dismissed.
---------------

_____________________________________________________________
Kuman Lawyers : Lawyers for the Plaintiff