Kitika v Mitina [2021] PGNC 479; N9340 (1 December 2021)

N9340

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 189 0F 2021

JOSEPHINE KITIKA
Plaintiff

V

AMONA MITINA, MT HAGEN BRANCH MANAGER FOR WESTPAC BANK (PNG) LIMITED
First Defendant

AND:
WESTPAC BANK (PNG) LIMITED
Second Defendant

Mt. Hagen: Eliakim AJ
2021:20 September, 01 December

PRACTICE & PROCEDURE – Application for Default Judgment - Order 12 Rules 25 (a) & (b) NCR – Principles - Whether writ properly served

Cases Cited:
Fraser -v- Motor Vehicle Insurance (PNG) Trust (1992) N1089
Wong -v- Haus Bilas Corporation (PNG) Pty Ltd [1988-89] PNGLR 42

Counsel
Applicant in person
No Appearance, for the Defendants

RULING
(Interlocutory Application)

1^st December, 2021

1. ELIAKIM AJ: This is an application for default judgement pursuant to Order 12 Rules 25(a) and (b) of the National Court Rules, for failure of the defendants to file their Notice of Intention to Defend and Defence within the required time limit.
   

BACKGROUND

2. The plaintiff alleges that she deposited a sum of K30,792.25 into an Interest-Bearing Deposit (IBD) bank account with the second defendant on 18 December 2002.
   
3. She claims that it was a fixed term deposit for twelve months under her given account No.006000709989 and was issued a fixed term deposit confirmation certificate dated 19 December 2002.
   
4. She further claims that she left this account for automatic renewal with interest at maturity since 2002.
   
5. In 2019, the plaintiff then made enquiries with the first defendant on her IBD Deposit of 2002 but was told that there was no record of her deposit.
   
6. She is now suing the defendants for professional negligence.
   

NOTICE OF MOTION

7. She seeks in her Notice of Motion filed 02 August 2021:
   
   1. Default judgment pursuant to Order 12 Rules 25(a) and (b) of the National Court Rules, against the defendants and damages to be assessed;
   2. Interests and costs
      

LAW ON DEFAULT JUDGMENTS

National Court Rules and Companies Act

8. Order 12 Rules 25(a) and (b) provides as follows:
   

“A defendant shall be in default for the purposes of this Division—

(a) where the originating process bears a note under Order 4 Rule 9, and the time for him to comply has expired but he has not given the notice; or

(b) where he is required to file a defence and the time for him to file his defence has expired but he has not filed his defence; or.....”

9. Order 6 of the NCR requires personal service on each defendant, whether it be an individual or a corporation. Under Rule 3 (3) of the NCR, the Companies Act provides the mode of service on companies.

10. Section 431(1) of the Companies Act provides the methods for service on a company in legal proceedings. It states:

“(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;

(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.”

11. Rule 6 Rule 3 (2) and (3) of NCR provides:

“(2) Personal service of a document on a corporation may be effected by serving the document in accordance with Sub-rule (1) on the mayor, chairman or president of the corporation, or on the town clerk, clerk, secretary, treasurer or other similar officer of the corporation.

(3) Sub-rule (2) applies in addition to any provision for service on a corporation made by or under any Act.”

12. The onus is therefore on the applicant to prove that:

1. The Notice of Motion in its proper form and supporting affidavit is served in accordance with the Rules;
2. The defendant has not filed a notice of intention to defend or if a notice has been filed that the plaintiff has warned the defendant of an imminent application for default judgment;
3. Defence has not been filed and the time to file has expired; and
4. Writ and Statement of Claim has been properly served in accordance with the Rules and if it is a cooperate entity, then service must be effected in accordance with the Companies Act.
   

APPLICATION OF THE LAW

Whether writ properly served

13. Proper and lawful service of process is an essential ingredient undertaken in any litigation proceedings filed in court. It directly impinges on natural justice and fairness to all parties to the proceeding.
    
14. The law on service on companies is well established in our jurisdiction.
    
15. In addition to the requirements for personal service under Order 6 Rule 3(2) and (3) of the NCR, section 431(1) of the Companies Act clearly sets out the method of service of legal documents. Legal documents include ‘a writ, summons, notice, or order in any legal proceedings’ may be served on a company:
    
    1. Delivery to a Director/ Secretary of the Company as registered; or
    2. Delivery to an employee of the company at the company’s head office or principal place of business; or
    3. Leaving it at the company’s registered office or address for service; or
    4. Posting it to the company’s registered office, address for service, or postal address; or
    5. Serving it in accordance with Court directions; or
    6. In accordance with an agreement made with the company.
       
16. I cannot find anywhere in the applicant’s Affidavit in Support nor in the Affidavit of Service, evidence that the Westpac Bank PNG Limited Mt Hagen Branch, is the registered office of the company or that it is the principal place of business. Appropriate evidence would be certified company extract of Westpac Bank PNG Limited from the PNG Companies Office.
    
17. Neither of the applicant’s Affidavits filed herein, devoid of any reference at all of the descriptions set out in Section 431 of the Company's Act.
    
18. I am not satisfied that Westpac Bank, Mt Hagen Branch is the registered office of the second defendant company and thus in my view, service of the Writ effected on Mt Hagen Westpac Bank branch on 24 May 2021, is not service. Further there is no evidence that the bank officer, one Isolder Koroki is authorized to receive service for and on behalf of the Westpac Bank PNG Limited. (Wong -v- Haus Bilas Corporation (PNG) Pty Ltd [1988-89] PNGLR 42)
    
19. Personal service on a statutory Corporation must be strictly proven if interlocutory judgment is to be granted. (Fraser -v- Motor Vehicle Insurance (PNG) Trust [1992] PGNC 25; N1089, Brown,J).
    

ORDERS

1. The application for Default Judgment is refused;
2. No orders as to costs.
3. Time shall be abridged to time of settlement to take place forthwith.
   

________________________________________________________________
Plaintiff in person