Pacific Grazing (Vanuatu) Ltd, In re [1985] VULawRp 1; [1980-1994] Van LR 154 (3 April 1985)

[1980-1994] Van LR 154

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 20 of 1985

In Re: PACIFIC GRAZING (VANUATU) LTD
Respondent

Coram: Chief Justice Cooke

Counsel: Mr P. Coombe and Mr MacFarlane for Respondent
Mr G. Humble for Applicant

JUDGMENT

[COMPANIES - Winding Up - Notice Of Demand - Effect Of Typographical Error- Execution Of Notice Of Demand By Solicitor - TIME - Public Holidays]

In this matter the creditor, Barclays Bank PLC the petitioner, has petitioned the Court to have Pacific Grazing (Vanuatu) Ltd, the respondent in this matter, wound up by the Court under the provisions of the Companies' Regulation 1971 in that the Company is indebted to the petitioner in the sum of A$55,084.66 in respect of monies advanced and interest accrued to 28th December 1984. A Notice of Demand signed by the petitioner's duly authorised Attorney and dated the 18th of January 1985 was served on the Company on the same date, requesting the payment of the said sum of A$55,084.66 within twenty one days of the date of service of the said demand.

In the petition it is stated that the Company has neglected to pay or satisfy the said sum in whole or in part and has failed to secure or compound the same.

That the Company is insolvent and unable to pay its debts.

Mr Coombe, who appeared with Mr MacFarlane for the respondent, made a preliminary objection to the petition and applied to have the said petition dismissed.

His first submission was that the Notice of Demand was signed by Pacific Grazing (Vanuatu) Ltd, i.e. the respondent Company. He, Mr Coombe, did mention that another affidavit in support of the petition was filed on the 13th day of March 1985, after the petition was presented, drawing attention to the typographical error in the final paragraph of the notice wherein the words "Pacific Grazing (Vanuatu) Limited" appear by mistake instead of the words "Barclays Bank PLC".

Mr Coombe contends that the respondent is entitled to disregard the notice received purported to be signed by itself.

In my opinion, it is more than obvious to anyone reading the Notice of Demand that the matter referred to was a definite typographical mistake. The notice commences by stating:-

"To Pacific Grazing (Vanuatu) Ltd, formerly known as Pacific Grazing (N.H.) Limited" etc.,"

It then states:-

"Take notice that Barclays Bank PLC etc ... hereby demands" etc.

Finally, it is stated that:-

"Dated and served at the Registered Office of Pacific Grazing (Vanuatu) Limited, formerly known as Pacific Grazing (N.H.) Limited".

Accordingly I reject Mr Coombe's first submission. Secondly, Mr Coombe refers to section 254(a) of the Companies Regulation (Cap. 9) and contends that the said section requires that the notice must be signed under the hand of a creditor. Yes, section 46 of the Companies Regulation (Cap. 9) does state that a document or proceeding requiring authentication by a Company may be signed by a director, secretary or other authorised officer of the Company, and need not be under its common seal. I agree that such persons may sign but the word "may" in the context conveys a discretionary power and in my opinion, it would not prevent an authorised solicitor instructed by the creditor from signing the Demand Notice on his behalf. Accordingly, I reject Mr Coombe's second submission.

Mr Coombe's third submission referred to monies advanced to the Company in the sum of A$23,737.67. He contended that anyone receiving such notice would infer that the sum advanced on the 26th April 1978 was that said sum.

I consider there is no merit in this submission as the Demand Notice states categorically:-

"26th April 1978 to Monies advanced to your Company in the28th December 1984 sum of A$23,737.67."

The expression "monies advanced" is used which can mean any number of advances, certainly not one specific advance. I reject this submission.

Mr Coombe's fourth submission referred to the verifying affidavit. He stated the petition was presented to the Court on the 12th February 1985; however the affidavit verifying the petition was not sworn and filed until the 18th February 1985. Rule 30 of the Winding Up Rules states that every affidavit verifying a petition should be sworn and filed within four days after the petition. The 12th February 1985 was a Tuesday and four days from that date would be a Saturday when the registry of the Court is closed as is usual on Saturdays and Sundays each week, together with holidays. Mr Coombe referred to section 32 of the Interpretation Act 1981 where it states:-

"32(1) In computing time for the purpose of an Act of Parliament:
(a) a period of days from the happening of an event or the doing of any act or thing shall be exclusive of the day in which the event happens or the act or thing is done;
(b) if the last day of a period is a Sunday or a public holiday (which days are in this section referred to as excluded days) the period shall include the next following day, not being an excluded day"

and to the definition of "Public Holiday" which is stated to mean a day declared to be a public holiday in Vanuatu under the law for the time being in force.

Mr Coombe then stated there was no law in force which states Saturday is a public holiday.

However, there is in force in Vanuatu what is referred to as Standing Orders for the Public Service which came in force in 1980 cancelling and replacing Assembly Resolution No. 5 of 1978 (Joint Regulation No. 7 of 1978). Under chapter IV (c) the hours of work are set out:-

"Item 4.17 states - The normal standard working week of the Public Service shall comprises:

• (i) 36¼ hours, and
• (ii) 39 hours for out-door workers of the Agriculture and Public Works Departments.

These hours will normally be worked over 5 days from Monday to Friday."

It is my opinion that these Standing Orders must be read in conjunction with the Interpretation Act which after all only applies to laws made in Vanuatu. I therefore consider that Mr Humble by filing the affidavit on Monday 18th was within the time limit permitted.

Mr Coombe's fifth submission was that the affidavit verifying the petition, if filed in time must be signed by some person on behalf of the Corporation, i.e. a secretary, director or principal officer but that it does not include a solicitor in a firm of solicitors acting for the Corporation.

Rule 30 of the Winding Up Rules made under the Companies Act 1948 in England and as from time to time amended down to 1st April 1971, are in force in Vanuatu by virtue of section 435 (1) of the Companies Regulation (Cap. 9). That section limits the making of the affidavit verifying the petition in the case of a Corporation to a director, secretary or other principal officer of the Corporation. I have to ask myself whether any of the persons referred to can be interpreted to include a solicitor of a law firm representing the Company. In my opinion, as the Rule specifically names persons who can make the affidavit, then as the Rule 80 states, only those persons can make the affidavit. I am fortified in this view by the substitution made to the said Rule 30 in 1979 (but which does not apply to Vanuatu) which makes it clear that an affidavit verifying a petition could be made by a solicitor who has been concerned in the matter on behalf of the petitioner. It states:-

30(1) Every petition shall be verified by an affidavit in form 8A with such variations as the circumstances may require.

(2) The affidavit shall be made by the petitioner or by one of the petitioners if more than one, or by some person such as a director, company secretary or similar officer, or a solicitor who has been concerned in the matter on behalf of the petitioner.

(3) The affidavit shall be filed within seven days after the petition is presented and shall be prima facie evidence of the statements in the petition.

In view of the opinion expressed aforesaid I agree with the submission made by Mr Coombe in this regard and hold there is no verifying affidavit before the Court as required by Rule 30. Accordingly, there is no alternative but to dismiss the petition with costs.

3 April 1985

FREDERICK G. COOKE
CHIEF JUSTICE