IN THE HIGH COURT OF JUSTICE AND SOUTHERN SALES AND SERVICE COMPANY LIMITED DECISION

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV BETWEEN LYDIA SUMINTRA BICKRAM Claimant AND SOUTHERN SALES AND SERVICE COMPANY LIMITED Defendant Before: Master Margaret Y Mohammed Appearances: Mr Shastri VC Parsad for the Claimant Mr Ravi Mungalsingh for the Defendant. DECISION INTRODUCTION 1. The defendant has applied to the court to set aside a judgment obtained in default by the claimant on the ground that it is irregular. The defendant claims that it first became aware of the action after the judgment was obtained and that the address set out in the claimant s affidavit of service to which the claim form and statement of case were served is not the registered address of the defendant. The claimant asserts that the defendant had notice of the claim form and statement of case. 2. Alternatively, the defendant claims that if the court finds that the judgment is regular it ought to be set aside on the basis that it has a realistic prospect of success and that it Page 1 of 5

2 acted as soon as reasonably practicable when it found out that the judgment had been obtained against it. The claimant asserts that the defendant has failed to provide any defence to justify the court setting aside the judgment. 3. There are 2 issues to be resolved. The first issue is whether the court is satisfied that the judgment was properly obtained. If this is answered in the affirmative the second issue is whether the defendant has satisfied the court that it has a defence which has a realistic prospect of success and it acted as soon as reasonably practicable when it found out that the judgment had been obtained against it. 4. I have concluded that the defendant had notice of the instant high court proceedings for the reasons set out hereafter and therefore the judgment obtained is regular. Further, in the event that I am wrong on this first limb, I find that the defendant has failed to set out any defence in support of its application and therefore it fails the test of proving that it has a defence with a realistic prospect of success. WAS SERVICE OF THE CLAIM FORM PROPERLY EFFECTED ON THE DEFENDANT? 5. To effect service on a limited company section 491 of the Companies Act Chapter 81:01 provides that a notice of document may be served on a company by leaving it at, or by sending it by telex or telefax by prepaid post or cable addressed to, the registered office of the company. Rule 5.6(a) the Civil Proceedings Rules ( the CPR ) governs service of documents on companies and repeats the provisions of the Companies Act since it provides that service of the claim form and statement of case or other document is effected by sending it by telefax or prepaid registered post addressed to the registered office of the company. Page 2 of 5

3 6. Rule 13.2 CPR provides that the court must set aside a judgment in default of appearance if the first condition in rule 12.3 CPR is not satisfied which is the claim form and statement of case were not served. 7. In CV Delta Logistics v South M Construction Service Limited Master Sobion Awai considered a similar issue and found that the omission to state the relevant light pole number and other particulars on the envelope in which the claim form and statement of case were contained did not mean that the envelope was incorrectly addressed. 8. The claim form and statement of case were properly served on the defendant for the following reasons: (a) The defendant acknowledged receiving the pre-action protocol letter at its address at Cross Crossing, San Fernando. Although paragraph 15 of the affidavit of Shodan Mahabir, Group Financial Comptroller states that the defendant s registered address is Cipero Road, Cross Crossing, San Fernando at paragraph 4 he admitted receiving the pre-action protocol letter dated September 10, 2009 from the claimant s attorneys at law which was addressed to the defendant at the same address the claim form and statement of case were posted to namely Southern Sales & Service Company Limited Cross Crossing, SAN FERNANDO. He also admitted acting on this letter since he made contact with the defendant s insurance company concerning the claim. (b) The registered mail has not been returned to the sender by TTPost to date. Paragraph 12.2 of the claimant s affidavit of Lana Lakhan indicates that by letter dated February 28, 2011 TTPost confirms that undelivered registered mail is returned to the sender. It is not unreasonable to assume that someone at the defendant s place of business at Cross Crossing, San Fernando signed for the correspondence. Page 3 of 5

4 (c) The defendant acknowledged that there were 10 Managers at the Cross Crossing, San Fernando address but did not make enquiries from any of them if they signed for receiving any documents around the date the mail was posted. The affidavit of service and supplemental affidavit of Prabha Adjodha filed on January 22, 2010 and February 12, 2010 respectively state that the claim form, statement of case and accompanying forms 1A, 3 and 5 were posted by pre-paid registered mail on Friday December 11, 2009 at 1:30 pm at the TT Post Carlton Centre Branch, San Fernando to the defendant addressed to the Manager Southern Sales and Services Company Limited at Cross Crossing, San Fernando. (d) The defendant has not denied that its business address in the Trinidad and Tobago Business Directory published by TSTT is Southern Sales & Service Co. Ltd, Cross Crossings and the TSTT yellow pages is Southern Sales & Service Co. Ltd, Cross Crossings, San Fernando as set out in paragraph 13 of the affidavit of Lana Lakhan. 9. I find that the omission by the claimant to insert the information Cipero Road on the envelope in which the documents were served did not mean that the documents were not delivered to the defendant at its address at Cross Crossing, San Fernando. HAS THE DEFENDANT DEMONSTRATED THAT IT HAS A REALISTIC PROSPECT OF SUCCESS? 10. Ground 3 of the defendant s application is it has a realistic prospect of success in the claim and it acted as soon as reasonably practicable when it found out that judgment has been entered against it. The defendant must satisfy these 2 conditions under rule 13.3 CPR before the court can set aside a regular judgment. The second part of the 2 part condition was unchallenged by the claimant. Page 4 of 5

5 11. The affidavits of Shodan Mahabir and Chrystal Sonny both filed in support of the defendant s application are noticeably void of any information concerning the defendant s proposed defence. There is nothing before me to evaluate the defendant s prospects of success in the action. The defendant s application fails under this alternative ground. ORDER 12. The defendant s application is dismissed with costs to be assessed. I will hear submissions on costs if they are not agreed. Dated this 18 January, Margaret Y Mohammed Master (Ag.) Page 5 of 5