AGK Pacific (NG) Ltd v William Brad Anderson, Karson Construction (PNG) Ltd and Downer Construction (PNG) Ltd (2000) N2062

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 04 December 2000
• Court: National Court
• Citation: (2000) N2062
• Year: 2000
• Judgement Number: N2062

Full Title: AGK Pacific (NG) Ltd v William Brad Anderson, Karson Construction (PNG) Ltd and Downer Construction (PNG) Ltd (2000) N2062

National Court: Injia J

Judgment Delivered: 4 December 2000 or 1999

N2062

PAPUA NEW GUINEA

[In the National Court of Justice]

W.S. NO. 1489 of 1999

BETWEEN:

A.G.K. PACIFIC (N.G.) LTD

-Plaintiff-

AND:

WILLIAM BRAD ANDERSON

-First Defendant-

AND:

KARSON CONSTRUCTION (PNG) LTD

-Second Defendant-

AND:

DOWNER CONSTRUCTION (PNG) LTD

-Third Defendant-

LAE : INJIA, J.

2000 : November 17

December 4

Civil — Interim Injunctions — Contract of Employment — Preservation of
negative covenants.

Cases cited in the judgment

Employer's Federation of PNG v. PNG Waterside Workers Union & Others N392 (1982)

Doherty v. Allman [1978] 3 A.C. 709

K. Gamoga for Plaintiffs

T. Pryke for the Defendants

4th December 1999

INJIA, J.: The plaintiff (AGK) is seeking, by motion on notice, various interim injunctions against the defendants, in particular against the First Defendant ("Anderson"). AGK says the interim injunctions are necessary to preserve the status quo of the parties pending determination of its substantive claim. AGK's substantive claims are for inter alia, a declaration that the sub-contract between the Third Defendant ("Downer") and Second Defendant ("Karson") dated 27/3/00, be amended to delete Karson's name and to be substituted with AGK's name. In the statement of claim, AGK raises allegations of acts of misrepresentation and conspiracy to defraud and fraud committed by Anderson in collusion with Karson to undermine his employment contract with AGK, in tendering for a road drainage sub-contract project with Downer on behalf of Karson, a company recently incorporated by Anderson and his wife and solely owned by his wife. It claims Anderson whilst in the employ of AGK breached the terms of his employment contract in that he secretly negotiated and signed the sub-contract for Karson instead of for AGK, and he is now in the process of leaving AGK's employment to join Karson and he is inducing some 36 employees of AGK who previously worked under Anderson's supervision for AGK, to leave AGK and work for Karson.

As an interim measure, AGK is seeking interim injunctions to, inter alia;

(1) Restrain Anderson from performing any work for Karson under the said sub-contract.
(2) To restrain Anderson and Karson from interfering or tampering with AGK;s workforce
and equipment on the project site; and

Mandatory injunction compelling Downer to allow the said sub-contract to continue to
be performed by AGK instead of Karson.
(3)

Affidavit evidence is produced by AGK's manager to support the allegations in the statement of claim and it's claim for interim injunctions.

AGK;s allegations are sought to be refuted in two affidavits sworn by Anderson and one sworn by Mr. Richard Gough of Downer.

The grant of injunctive relief, interim or permanent, mandatory or otherwise, is an equitable remedy and it is discretionary. The principles governing the Court's grant of interim injunctions are set out in various cases, some of which have been cited to me by Mr. Pryke of counsel for the defendants, but I consider the principles of equity developed by the English equity Courts in various cases and restated by Kapi, DCJ in Employer's Federation of PNG v. PNG Waterside Workers Union & Others N392 (1982) to be a comprehensive statement of the law. In essence, an applicant for interim injunction must satisfy two basic requirements:-

(1) That there is a serious question to be determined; and
(2) That the balance of convenience of favours the grant of interim injunction in order to
preserve the status quo.

There are many relevant...