Pacific Grazing (NH) Ltd v Companies Regulation 1971 [1986] VULawRp 12; [1980-1994] Van LR 225 (27 August 1986)

[1980-1994] Van LR 225

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 52 of 1982

BETWEEN:

PACIFIC GRAZING (N.H.) LIMITED
Plaintiff

AND:

THE COMPANIES REGULATION 1971
Defendant

Coram: Cooke C.J

Counsel: Mr P Coombe for the Company
Mr D Hudson for the secured creditor

JUDGMENT

[COMPANIES - PRACTICE AND PROCEDURE - slip rule - REGISTRATION OF CHARGES]

An ex parte application was made on the 30th March 1982 to rectify an omission to deliver to the Registrar of Companies, for registration pursuant to Section 104 of the Companies Regulation 1971, a Mortgage Debenture and Legal Charge, due to inadvertence and an Order was made that:-

1. The Mortgage Debenture dated the 10th December 1973 and made between the Australia and New Zealand Banking Group Limited and the Pacific Grazing (N.H.) Limited whereby the latter party charged its assets and undertakings to secure repayment of a loan of five hundred thousand Australian dollars (500,000A$) and interest was extended to the eighteenth day of April 1982.
2. Under Section 110 of the Companies Regulation 1971 the time for delivering the legal charge, then stated to be the 6th July 1979 between the same parties whereby the Pacific Grazing (N.H.) Limited charged certain land and premises contained in Registered titles 2064, 2764 and 2765 supplemental to the said Mortgage Debenture, was also extended to the eighteenth day of April 1982.

The date of the Legal Charge was wrongly stated in the Court Order to be the 6th July 1979 when in fact it is clearly stated on the Legal Charge itself to be the 13th July 1979. This is the only Legal Charge existing between the parties so there can be no misunderstanding between the parties when the Legal Charge was mentioned (albeit the wrong date) in the Court Order. The only reason I can suggest why this was not noticed by the Registrar of the Court was that the Legal Charge was not before her when she signed the Order.

Mr Hudson, the solicitor for the Australia and New Zealand Banking Group Limited, Port Vila, now applies to have the said Order of the 8th April 1982 amended by substituting the correct date of the Legal Charge i.e. the 13th July 1979 for the incorrect date, the 6th July 1979.

In making his application by way of a Summons for correction of clerical error, order 30, rule 11, of the High Court (Civil Procedure) Rules which clearly states that clerical mistakes in Judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or Summons without an appeal.

Mr Coombe who appeared for Pacific Grazing (N.H.) Ltd, opposed the application to the effect that the proper procedure was not followed and that the certificate of the Registrar is conclusive evidence of what it says:-

i.e. "I certify that the within mentioned charge has been registered in accordance with the provisions of Sections 104 and 105 of the Companies Regulation (Cap. 9) and secures the amount of A$500,000.
G. Vandersluis
Registrar of Companies 15/4/82"

The Legal Charge is dated to be 6th July 1979. However, in Re Eric Holmes (Property) Ltd (1965) 2 A.E.R. p. 343 Pennycuick J. in his judgment refers to a statement by Scrutton L.J., said (1924) 1 K.B. at pp 447, 448) at G:-

"The result of the legislation as it appears to me is that if the document sent in for registration does contain a charge on particular property, even if the company sending it in has misstated that charge, or the registrar considering it judicially has misunderstood it, when once the certificate has been given the grantees are safe. Though one can see that this may cause great hardship to a person who gives credit to the company in reliance on a defective register, one can also see that equal hardship would be caused to secured creditors if their security was to be upset for reasons connected with the actions of persons over whom they had no control. For these reasons I take the view which was in Re Yolland, Husson and Berkelt Ltd [1907] UKLawRpCh 148; (1908) 1 Ch. 152, and Cunard Steamship Co., Ltd v Hopwood (1908) 2 Ch. 56 that the giving of the certificate by the registrar is conclusive that the document creating the charge was property registered, even if in fact it was not properly registered."

Then Aiken L.J. (1924) 1 K.B. p. 452 quoted at p. 343 in the same case, stated:-

"It appears to me to be the true view that when once such a certificate has been given by the registrar in respect to a particular specified document which in fact creates a mortgage or charge, it is conclusive that the mortgage or charge so created is properly registered, even though the particulars put forward by the person applying for registration are incomplete and the entry in the register by the registrar is defective."

Pennycuick J. then continues:-

"Those judgments, in particular the passages which I have quoted from the judgments of Scrutton L.J., and Aikin L.J. seem to me squarely to cover the case where the date is wrongly stated, and I do not think it is open to me to distinguish them."

I have no hesitation in following the guideline of Palmer's Company law on page 478 which states:-

"The certificate is not evidence of the accuracy of the particulars; in order to ascertain the terms and effect of the charge, it is necessary to look at the document creating the charge, and not at the register."

In this case, the mistake, in my opinion, is clearly a clerical error and should be rectified. I hereby Order that the date the "6th July 1979" both in the Order and the register of charges with the Registrar of Companies, be amended to read "13th July 1979".

Dated at Port Vila this 27th day of August 1986.

FREDERICK G. COOKE
CHIEF JUSTICE