BP Oil (South West Pacific) Ltd v Sitani Mafi Co Ltd [2008] TOSC 6; CV 1096-2007 (6 March 2008)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

CV. 1096 of 2007

BETWEEN:

BP OIL (SOUTH-WEST PACIFIC) LTD
Plaintiff

AND:

SITANI MAFI CO. LTD
Defendant

BEFORE THE HON. JUSTICE ANDREW

Counsel
Ms Tupou for the plaintiff and
Mr C. Edwards for the defendant

Date of judgment: 6th March, 2008.

Judgment

This is an application to set aside a default Judgment.

Judgment was entered against the defendant on the 30th January, 2008.

The basis of the application is that the notice to the defendant, writ of summons and statement of claim were not served on the defendant. It is not in dispute that what happened was that these documents were all served upon an employee of the defendants lawyer at the lawyers’ office. It is acknowledged that the Companies Act, S 391 provides that service may be effected upon a Director or the Company Secretary or by delivery to an employee of the company at its head office. That did not happen so I am satisfied that the defendant was not properly served.

The Plaintiff says that this may be so but that ORDER 14 RULE 4 provides that not only must the defendant show that there was good reason for his failure to file a defence in time but he must also show that he has an arguable defence, which it is said, he has not done. Accordingly the judgment should not be set aside.

But I do not think that it gets to this point because quite simply the defendant has not been served. Therefore he is not in default and judgment should not have been entered against him for that reason. He does not have to show he has an arguable case when he has not been served.

Accordingly it is ordered that the judgment dated the 30th January 2008 be set aside.

Costs are awarded to the defendant.

DATED: 6 March 2008.

JUDGE