ORDER 5.-PARTIES AND CAUSES OF ACTION.
Division 1.-Joinder of Causes of Action and Parties.
1. Joinder of causes of action. (8/1)
A plaintiff may, in any proceedings, claim relief against the same defendant in respect of more than one cause of action -
(a) where the plaintiff claims, and the defendant is alleged to be liable in the same capacity in respect of all the causes of action; or
(b) where the plaintiff claims, or the defendant is alleged to be liable in the capacity of executor of the will of a deceased person or administrator of the estate of a deceased person in respect of one or more of the causes of action and in his personal capacity but with reference to the estate of the same deceased person, in respect of all other causes of action; or
(c) where the Court gives leave to do so.
2. Joinder of parties generally. (8/2)
Two or more persons may be joined as plaintiffs or defendants in any proceedings -
(a) where -
(i) if separate proceedings were brought by or against each of them, as the case may be, some common question of law or of fact would arise in all the proceedings; and
(ii) all rights to relief claimed in the proceedings (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or
(b) where the Court gives leave to do so.
3. Joint right. (8/3)
(1) Where, in any proceedings, the plaintiff claims relief to which any other person is entitled jointly with him -
(a) all persons so entitled shall be parties to the action; and
(b) any of them who do not consent to being joined as a plaintiff shall be made a defendant.
(2) Sub-rule (1) applies subject to any Act and applies unless the Court gives leave to the contrary.
4. Leave under Rules 1, 2 and 3. (8/4)
(1) The Court may grant leave under Rule 1 or 2 before or after the joinder and may grant leave under Rule 3(2) before or after the non-joinder.
(2) A plaintiff may apply for leave under Rule 1, 2 or 3(2) before or after filing his originating process and may apply without serving notice of the motion on any person on whom the originating process has not been served.
5. Common liability. (8/5)
(1) Where, in any proceedings, relief is claimed against a defendant who is jointly liable with some other person and also severally liable, that other person need not be made a defendant to the proceedings.
(2) Where persons are jointly, but not severally, liable under a contract, and relief is claimed against some but not all of those persons in proceedings in respect of that contract, the Court may, on the application of any defendant to the proceedings, by order stay the proceedings until the other persons so liable are added as defendants.
6. Inconvenient joinder. (8/6)
Where any joinder of parties or causes of action may embarrass or delay trial of the proceedings or is otherwise inconvenient, the Court may order separate trials or make such other order as the Court thinks fit.
7. Misjoinder and non-joinder of parties. (8/7)
(1) Proceedings shall not be defeated by reason of the misjoinder of a party or the non-joinder of any person as a party.
(2) The Court may in any proceedings determine the issues or questions in dispute so far as they affect the rights and interests of the parties.
8. Addition of parties. (8/8)
(1) Where a person who is not a party -
(a) ought to have been joined as a party; or
(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,
the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.
(2) A person shall not be added as plaintiff without his consent.
(3) Without limiting the generality of Sub-rule (1), where a person not a party to proceedings for possession of land is in possession (by himself or by a tenant) of the whole or any part of the land, the Court, on application by him, may, on terms, order that he be added as a defendant and make orders for the further conduct of the proceedings.
9. Removal of parties. (8/9)
Where a party -
(a) has been improperly or unnecessarily joined; or
(b) has ceased to be a proper or necessary party,
the Court, on application by any party or of its own motion, may, on terms, order that he cease to be a party and make orders for the further conduct of the proceedings.
10. Death, transmission, etc. (8/10)
(1) Where a party dies or becomes bankrupt but a cause of action in the proceedings survives, the proceedings shall not abate by reason of the death or bankruptcy.
(2) Where the interest or liability of a party passes by assignment, transmission, devolution or otherwise to another person, the Court may make orders for the addition, removal or rearrangement of parties and may make orders for the further conduct of the proceedings.
(3) The Court may act under Sub-rule (2) on application by a party or by a person to whom the interest or liability passes or of its own motion.
11. Further conduct of proceedings (8/11)
(1) Without limiting the generality of the powers of the Court under Rules 8, 9 and 10 orders under those Rules for the further conduct of the proceedings may include orders relating to -
(a) service of the order and other documents in the proceedings; and
(b) amendment; and
(c) appearance of added parties; and
(d) substitution of one party for another party or a former party.
(2) Where the Court orders that a party be substituted for another party or a former party, all things done in the proceedings before the making of the order shall, unless the Court otherwise orders, have effect in relation to the new party as those things had effect in relation to the old, but notice of intention to defend by the old party shall not dispense with notice of intention to defend by the new.
(3) Subject to Sub-rule (2), where a party is added pursuant to an order under Rule 8 or 10, the date of commencement of the proceedings so far as concerns him shall be the date of filing of the originating process amended so as to add him as a party or, where an amended originating process is not filed, the date of the amendment adding him as a party.
12. Failure to proceed after death of party. (8/12)
(1) Where -
(a) a party dies but a cause of action in the proceedings survives his death; and
(b) an order under Rule 10 for the addition of a party in substitution for the deceased party is not made within three months after the death,
the Court may, on application by a party or by a person to whom liability on the cause of action survives on the death, order that, unless, within a specified time after service of the order in accordance with Sub-rule (2), a party is added in substitution for the deceased party, the proceedings be dismissed so far as concerns relief on the cause of action for or against the person to whom the cause of action or the liability thereon, as the case may be, survives on the death.
(2) On making an order under Sub-rule (1), the Court shall give such directions as it thinks fit for service of the order on the persons (whether parties or not) interested in continuing the proceedings.
13. Representation; Current interests. (8/13)
(1) Where numerous persons have the same interest in any proceedings the proceedings may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.
(2) At any stage of proceedings pursuant to this Rule the Court, on the application of the plaintiff, may, on terms, appoint any one or more of the defendants or other persons (as representing whom the defendants are sued) to represent all, or all except one or more, of those persons in the proceedings.
(3) Where, under Sub-rule (2), the Court appoints a person who is not a defendant, the Court shall make an order under Rule 8 adding him as a defendant.
(4) A judgement entered or order made in proceedings pursuant to this Rule shall be binding on all the persons as representing whom the plaintiffs sue or the defendants are sued, as the case may be, but shall not be enforced against any person not a party to the proceedings except with the leave of the Court.
(5) An application for leave under Sub-rule (4) shall be made by motion, notice of which shall be served personally on the person against whom it is sought to enforce the judgement or order.
(6) Notwithstanding that a judgement or order to which an application under Sub-rule (5) relates is binding on the person against whom the application is made, that person may dispute liability to have the judgement or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from the liability.
(7) This Rule does not apply to proceedings concerning -
(a) the administration of the estate of a deceased person; or
(b) property subject to a trust.
14. Representation; Administration cases, etc. (8/14)
(1) In any proceedings concerning -
(a) the administration of the estate of a deceased person; or
(b) property subject to a trust; or
(c) the construction of a written instrument, including an Act,
the Court, if satisfied that one or more of the conditions specified in Sub-rule (2) are satisfied, may appoint one or more persons to represent any person (including an unborn person) or class of persons who is or may be interested (whether presently or for any future, contingent or unascertained interest) in, or affected by, the proceedings.
(2) The conditions for the exercise of the power conferred by Sub-rule (1) are -
(a) that the person, the class of persons or some member of the class, cannot be ascertained or cannot readily be ascertained; and
(b) that the person, class of persons or some member of the class, though ascertained, cannot be found; and
(c) that, though the person or the class of persons and the members of the class can be ascertained and found, it appears to the Court expedient (regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) to exercise the power for the purpose of saving expense.
(3) Where in any proceedings the Court exercises the power conferred by Sub-rule (1), a judgement or order entered or made in the proceedings shall be binding on the person or class of persons represented as if he or they were parties.
(4) Where, in any such proceedings as are referred to in Sub-rule (1), a compromise is proposed and some of the persons who are interested in, or who may be affected by, the compromise are not parties to the proceedings (including unborn or unascertained persons) but -
(a) there is a party in the same interest who assents to the compromise or on whose behalf the Court sanctions the compromise; or
(b) the absent persons are represented by a person appointed under Sub-rule (1) and he so assents,
the Court, if satisfied that the compromise will be for the benefit of the absent persons, may approve the compromise and order that it shall be binding on the absent persons, and they shall be bound accordingly except where the order has been obtained by fraud or non-disclosure of material facts.
15. Trustee, etc. (8/15)
(1) Where any proceedings, including proceedings to enforce a security by way of foreclosure or otherwise, are brought by or against a trustee, executor or administrator -
(a) it shall not be necessary to join as a party any of the persons having a beneficial interest under the trust or in the estate; and
(b) a judgement or order in the proceedings shall, subject to Sub-rule (2), be as binding on those persons as it is on the trustee, executor or administrator.
(2) Where a judgement is entered or an order is made in proceedings to which Sub-rule (1) applies and it appears to the Court that in those proceedings the trustee, executor or administrator could not or did not in fact represent the interests of the persons having a beneficial interest under the trust or in the estate, the Court may, in those or other proceedings, order, on terms, that the judgement so entered or the order so made shall not be binding on those persons.
(3) Sub-rule (1) does not limit the power of the Court to order the addition of parties under Rule 8.
16. Deceased person. (8/16)
(1) Where in any proceedings it appears to the Court that a deceased person was interested, or that the estate of a deceased person is interested, in any matter in question in the proceedings and that he has no personal representative, the Court may, on the application of any party -
(a) order that the proceedings continue in the absence of a person representing the estate of the deceased person; or
(b) by order (with the consent of the person appointed) appoint a person to represent that estate for the purposes of the proceedings.
(2) An order under Sub-rule (1), and any judgement or order subsequently entered or made in the proceedings, shall bind the estate of the deceased person to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceedings.
(3) Before making an order under this Rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks fit.
17. Conduct. (8/17)
The Court may give the conduct of the whole or any part of any proceedings to such person as it thinks fit.
Division 2.-Disability.
18. Reference to next friend. (63/1)
Where it is necessary to refer to the office of a next friend, he shall be described as a next friend unless it is necessary to distinguish between a plaintiff and a defendant to an action or proceeding.
19. Need for next friend. (63/2)
(1) Subject to Sub-rule (3), a disabled person may not, except by his next friend, bring or make a claim or carry on any proceedings for relief in the Court.
(2) Subject to Sub-rule (3), a disabled person may not, except by his guardian at law -
(a) defend any proceedings; or
(b) intervene in any proceedings; or
(c) appear in any proceedings under a judgement or order.
(3) Where, in any proceedings, a disabled person has a next friend, the disabled person may, by his next friend, commence, carry on or defend any claim in those proceedings for relief.
20. Conduct of proceedings by next friend. (63/3)
(1) Subject to these Rules, where a disabled person is a party to any proceedings, anything which would, if he were not a disabled person, be required or authorized by these Rules to be done by him shall or may be done by his next friend.
(2) A next friend must act by a solicitor.
21. Appointment of next friend generally. (63/4)
(1) Subject to Sub-rule (5) and to Rules 22 and 24 an order appointing a next friend is not necessary.
(2) A disabled person may not be a next friend and a corporation may not be a next friend. but otherwise, and subject to Sub-rule (3), any person may be a next friend.
(3) A person may not be a next friend of a disabled person in any proceedings in which he has an interest adverse to the interest of the disabled person.
(4) A person shall not be made a next friend without his consent.
(5) Where a person has been or is next friend for a disabled person in any proceedings, no other person may, except on appointment by the Court, act as next friend for the disabled person in those proceedings.
(6) A person shall not take any step in any proceedings as next friend for a disabled person unless beforehand there have been filed -
(a) his consent to act; and
(b) a certificate by his solicitor that the next friend has no interest in the proceedings adverse to that of the disabled person.
22. Appointment of next friend of mentally disordered person. (63/5)
(1) Where a mentally disordered person has a committee or curator and the committee or curator has or may be given authority, under an Act, to bring or defend proceedings on behalf of the mentally disordered person, a person other than the committee or curator shall not, unless the Court otherwise orders, act as next friend of the mentally disordered person in proceedings which the committee or curator has or may be given authority to bring or defend.
(2) Where, after the commencement of proceedings, a party becomes a mentally disordered person, no step in the proceedings shall be taken by or against the mentally disordered person until a next friend for him has been appointed by the Court.
(3) A person shall not take any step in any proceedings as next friend for a mentally disordered person unless he has been appointed next friend by the Court or unless there has been filed (in addition to the documents mentioned in Rule 21(6)) -
(a) in a case to which Sub-rule (1) applies-a certificate by the next friend that he is committee or curator for the mentally disordered person and specifying the date on which and the manner by which he became committee or curator; or
(b) in a case to which Sub-rule (1) does not apply-a certificate by his solicitor that he knows or that he believes that that sub-rule does not apply and giving the grounds of his knowledge or belief
23. Notice of intention to defend by disabled person. (63/6)
(1) Where originating process in any proceedings is served on a disabled person and a notice of intention to defend is required to be given by the disabled person within a limited time but no notice of intention to defend is given within that time, a party to the proceedings shall not take any step in the proceedings affecting the disabled person until a notice of intention to defend is given by a guardian at law for the disabled person.
(2) Where, in any proceedings, notice of a judgement or order is served on a disabled person and a notice of intention to defend is not given for the disabled person, the Court may stay proceedings under the judgement or order until a notice of intention to defend is given by a guardian at law for the disabled person.
(3) A person moving for an appointment under this Rule shall, unless the Court otherwise orders, serve a notice of the motion on the disabled person.
24. Appointment by the Court. (63/7)
(1) The Court may, on motion by a party to proceedings or any other person, appoint a guardian at law for a disabled person for the purposes of the proceedings.
(2) The evidence on a motion for an appointment under Sub-rule (1) shall include evidence -
(a) that the person for whom the guardian at law is proposed to be appointed is a disabled person; and
(b) that the proposed guardian at law -
(i) consents to act; and
(ii) is a proper person for appointment; and
(iii) has no interest in the proceedings adverse to the interest of the disabled person; and
(c) that the disabled person is in default of giving a notice of intention to defend, if that is the fact.
25. Removal. (63/8)
(1) The Court may, on motion by a party to proceedings or by any other person or of its own motion -
(a) remove a next friend; and
(b) stay the proceedings until appointment of a next friend in place of the next friend removed.
(2) A person moving for an order under this Rule shall, unless the Court otherwise orders, serve notice of the motion on the next friend whose removal is sought and on the disabled person for whom he is next friend.
26. No imputed admission on pleadings. (63/9)
Order 8 Rule 21(1) does not apply to an opposite party who is a disabled person.
27. Discovery and interrogatories. (63/10)
Order 9 Divisions 1 and 2 apply to a disabled person and to his next friend.
28. Compromise of suits including infant settlements. (63/11)
(1) Where proceedings have been commenced, and afterwards an agreement is made by the next friend in the proceedings of a disabled person for the compromise or settlement of any matter in dispute in the proceedings, the Court may approve or disapprove the agreement.
(2) An agreement approved by the Court under Sub-rule (1) is as binding on the disabled person as if the disabled person were not a disabled person and his next friend were his agent to make the agreement.
(3) An agreement disapproved by the Court under Sub-rule (1) is not binding on the disabled person.
29. Compromise etc. before suit. (63/13)
(1) Where a claim enforceable by proceedings in the Court is made by or on behalf of, or against, a disabled person and, before proceedings are commenced to enforce the claim, an agreement is made by or on behalf of the disabled person for the compromise or settlement of the claim, the Court may approve or disapprove the agreement.
(2) An agreement approved by the Court under Sub-rule (1) is as binding on the disabled person by or on whose behalf it is made as if the disabled person were not a disabled person and, where the agreement is made by another person on behalf of the disabled person, as if that other person were his agent to make the agreement.
(3) An agreement disapproved by the Court under Sub-rule (1) is not binding on a disabled person by or on whose behalf it is made.
(4) Notwithstanding Order 4 Rule 2 (cases where a writ of summons is required), a person may commence proceedings by originating summons for approval of an agreement under this Rule and may, by the summons, seek enforcement of the claim where the Court has refused to approve the agreement.
(5) Where, in proceedings by originating summons under this Rule, a claim is made under Part IV of the Wrongs (Miscellaneous Provisions) Act 1962 the plaintiff shall file and serve with the summons full particulars of the matters specified in Section 32 of that Act.
(6) Where, in proceedings under this Rule, the Court does not approve an agreement but the plaintiff seeks to enforce the claim, the Court may give directions for the further conduct of the proceedings.
30. Terms of approval. (63/14)
(1) The Court may give its approval under Rule 28 or 29 on terms.
(2) Without affecting the generality of Sub-rule (1), the Court -
(a) may, as a term of its approval, require that any money or other property payable or applicable to or for the benefit of a disabled person be dealt with by way of settlement or otherwise as the Court thinks fit for the benefit of the disabled person; and
(b) may make such orders as it thinks fit for the carrying out of its requirements under Paragraph (a).
31. Service. (63/15)
(1) This Rule applies where, in any proceedings, a document is required to be served personally on a disabled person.
(2) Personal service on a disabled person shall not be effected otherwise than in accordance with this Rule.
(3) Where the disabled person has a next friend in the proceedings, the document may be served on the next friend.
(4) The document may be served on any person (including the disabled person) whom the Court may, before or after service, approve.
(5) Where the person to be served is an infant and has no next friend in the proceedings, the document may be served -
(a) if he is aged 16 years or upwards-on him; or
(b) on one of his parents or a guardian of his person or of his estate; or
(c) if he has no parent and has no guardian of his person or of his estate-on a person with whom he resides or in whose care he is.
(6) Where the person to be served is a mentally disordered person and has no next friend in the proceedings, the document may be served -
(a) if he has a committee or curator-on the committee or curator; or
(b) if he has no committee or curator-on a person with whom he resides or in whose care he is.
(7) A document served pursuant to any of Sub-rules (3) to (6) must be served in the manner required by the rules with respect to the document.
(8) A judgement or order requiring a disabled person to do, or refrain from doing, any act, a notice of motion for the committal of a disabled person, and a summons to a disabled person to give evidence must, in addition to any other service required by these Rules and notwithstanding Sub-rules (3) to (6), be served personally on the disabled person.
(9) Sub-rule (8) does not apply to an order for interrogatories or for discovery or inspection of documents.
(10) This Rule does not extend the jurisdiction of the Court over a disabled person absent from Papua New Guinea.
32. Payment into Court on behalf of disabled person. (63/12)
(1) A next friend shall not, except by leave of the Court, bring money into Court under Order 8 Division 6 or accept money brought into Court under that Division.
(2) Money (including damages) recovered, awarded or agreed to be paid in an action in respect of the claim of a disabled person shall, to the extent that it has not been paid into Court or otherwise dealt with in pursuance of an order of the Court under this Rule, be paid into Court.
(3) The Court may, in addition to the powers conferred on it by Section 15 of the Infants Act 1956, make an order directing how money (including damages) recovered, awarded or agreed to be paid in an action in respect of the claim of a disabled person shall be dealt with, and in particular, may, by order, direct -
(a) the payment of all or a part of the money to that person or his next friend in respect of expenses incurred by or paid for on behalf of the person or for his maintenance or benefit, or to his solicitor in respect of costs; and
(b) the investment of all or a part of the money on behalf of the disabled person in the manner specified in the order; and
(c) the investment of all or a part of the interest received from an investment under this Rule on behalf of the disabled person in the manner specified in the order; and
(d) the variation of an investment made under this Rule; and
(e) the sale of securities in which the money is invested under this Rule at such time and on such conditions as are specified in the order; and
(f) the payment of all or a part of the money, or the transfer of a security or investment under this Rule (including a savings bank account), to the person entitled to it.
(4) The Registrar may, at any time, apply in writing to the Court for an order under this Rule directing how all or a part of the money shall be dealt with and the Court may make an order giving such directions in relation to the matter as it thinks fit.
(5) A parent, guardian or next friend of an infant may, on behalf of the infant, request the Registrar to make an application under Sub-rule (4) for the payment out of moneys, invested under this Rule or remaining in Court, of an amount for the maintenance or benefit of the infant, and the Registrar shall make the application, together with his recommendations, accordingly.
(6) A request under Sub-rule (5) shall -
(a) be in writing; and
(b) specify the amount sought to be paid; and
(c) be supported by an affidavit, or, with the consent of the Registrar, a statutory declaration, verifying the amount sought to be paid and stating the reasons for the application.
(7) Unless the Court otherwise orders, it shall not be necessary for a person to appear before the Court in connection with the making of an order under Sub-rule (3).
(8) Where the Court has not made an order under this Rule for the investment or payment out of Court of all of the money paid into Court, the Registrar shall, on behalf of the disabled person, invest the money remaining in Court in the same manner as a trustee may invest trust funds under the law of Papua New Guinea, and shall invest in like manner the interest received from an investment under this Sub-rule.
(9) This Rule does not prejudice the lien of a solicitor for costs.
Division 3.-Business Names.
33. Interpretation of Division 3. (64/1)
In this Division -
the Act means the Business Names Act 1963;
business name means a name, style, title or designation under which a person carries on a business, not being a name consisting of the name of that person and the name of each other person (if any) in association with whom that person carries on business, without any addition.
34. Proceedings in business names. (64/2)
Where a claim for relief is made against any person in respect of anything done or omitted or suffered in the course of, or otherwise relating to, a business carried on within Papua New Guinea by that person under a business name and that business name is not, on the date on which proceedings in the Court for that relief are commenced, registered under and for the purposes of the Act, in relation to that person, then, subject to this Division -
(a) the proceedings may be commenced and prosecuted against that person in that business name; and
(b) that business name shall, for the purpose of the proceedings, be a sufficient designation of that person in any process or other legal document or instrument; and
(c) any judgement given or order made in the proceedings may be enforced against that person or, where there are two or more such persons, against any of them.
35. Service. (64/3)
(1) Where a person is carrying on business within Papua New Guinea under a business name not registered under and for the purpose of the Act, in relation to that person, any originating process or other document in or relating to any proceedings may be served -
(a) by leaving it at a place within Papua New Guinea where the business is carried on with some person apparently engaged (whether as servant or otherwise) in the business and apparently of or above the age of 16 years; or
(b) by sending it by certified mail addressed to the business name or to the person to be served and addressed to a place within Papua New Guinea where the business is carried on.
(2) Sub-rule (1) applies whether the person to be served is sued in his own name or in a business name.
(3) Service in accordance with Sub-rule (1) shall have effect as personal service.
(4) Where a document is served in accordance with either Sub-rule (1)(a) or (b) the place of service shall, for the purpose of the proceedings, be the place mentioned in that paragraph wherever (whether within Papua New Guinea or not) the person served may be at the time of service.
36. Notice of intention to defend. (64/4)
(1) Where any person is sued in a business name, he shall not give a notice of intention to defend except in his own name.
(2) Where any person gives a notice in proceedings in which he is sued in a business name, he shall file and serve with his notice a statement of the names and places of residence of all the persons carrying on business under that business name on the date of commencement of proceedings.
(3) Where a person fails to comply with Sub-rule (2), the Court may order that his notice of intention to defend be struck out.
37. Amendments as to parties. (64/5)
(1) Where proceedings are commenced against any person in a business name, the plaintiff shall, as soon as practicable, take all reasonable steps (whether by way of discovery of documents, interrogatories or otherwise) for the purpose of ascertaining the names of the defendant and shall, so far as practicable, make amendments so that the proceedings are continued against the person sued in his own name and not in his business name.
(2) Where proceedings are commenced against any person in a business name, the plaintiff shall not, without the leave of the Court, take any step in the proceedings, except in respect of service of the originating process and except for the purpose of compliance with Sub-rule (1), until amendments are made in accordance with that Sub-rule.
(3) Where an amendment is made under this Rule, the mode of amendment and service after amendment shall be in accordance with Order 8 Rules 56, 57 and 58.
(4) A party may make any amendment pursuant to Order 8 Rule 51 notwithstanding that he has made an amendment under this Rule.
38. Execution. (64/6)
(1) Where proceedings against a person in a business name are continued by leave given under Rule 37, a judgement or order against that person in the business name shall not be enforced by execution except as specified in this Rule.
(2) A judgement or order against a person in a business name may be enforced by execution against any property of the business carried on under that name and, where the judgement or order is against partners, against any other property which is property of the partnership.
(3) In Sub-rule (2), the expression property of the business, in relation to a judgment or order against a person in a business name, means all property and rights and interests in property, originally brought into the business carried on under that name or acquired, whether by purchase or otherwise, on account of the business, or for the purposes and in the course of the business, being property rights or interests of that person.
39. Variation of judgement or order. (64/7)
(1) Notwithstanding Rule 38, the Court may vary a judgement or order against a person in a business name so as to make it a judgement or order against that person in his own name and, when so varied, the judgement or order maybe enforced accordingly.
(2) Notice of a motion for a variation of a judgement or order under Sub-rule (1) shall be served personally on the person against whom the judgment was given or the order was made, and Rule 35 shall not apply to that service.
40. Discovery in aid of Rules 36 and 38. (64/8)
(1) Where it appears to the Court that some person has or may have knowledge of facts, or has or may have in his possession, custody or power, any document or thing tending to assist in the ascertainment of the name or description or other identification of a defendant sued in a business name, the Court may, for the purpose of enabling amendments to be made under Rule 37 or a variation of a judgement or order to be made under Rule 39-
(a) order that person to attend before the Court or an officer of the Court and be orally examined on any matter relating to the name or description or other identification of the defendant; and
(b) order that person to produce any document or thing in his possession, custody or power relating to the name or description or other identification of the defendant; and
(c) if that person is a corporation-order the corporation or any officer of the corporation to produce any document or thing in the possession, custody or power of the corporation relating to the name or description or other identification of the defendant.
(2) In Sub-rule (1), description, in relation to a defendant, includes the place of residence, place of business, occupation and sex of the defendant.
(3) Order 3 Rules 2(2), 3 and 4 apply in relation to an order under this Rule as they apply in relation to an order under Rule 1 of that Order.