Gaman Holdings Pty Ltd v Labu Holdings Pty Ltd

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 09 October 2000
• Court: National Court
• Citation: (2000) N2017
• Year: 2000
• Judgement Number: N2017

Full Title: Gaman Holdings Pty Ltd v Labu Holdings Pty Ltd

National Court: Injia J

Judgment Delivered: 9 October 2000

N2017

PAPUA NEW GUINEA

[In the National Court of Justice]

OS 402 OF 1998

BETWEEN:

GAMAN HOLDINGS PTY LTD

-Plaintiff-

AND:

LABU HOLDINGS PTY LTD

-Defendant-

Lae : Injia, J.

2000 : 9th October

Civil — Practice and procedure — Ex parte orders — Sought and
obtained in terms of substantive relief sought in Originating Summons under pretext of
urgent interim injunctive orders — Undesirability of practice — Orders set aside — National
Court Rules, O12 r8(3)(a).

No cases are cited in the judgment.

S. Tedor for Def/Applicant

R. Saulep for Plaintiff/Respondent

9th October, 2000

INJIA, J.: This is the defendant's motion under Order 12 r8(3)(a) of the National Court Rules to set aside certain ex parte orders obtained by the plaintiff on 7 August 1998 (principal order) and further orders thereupon, obtained on 24/3/99 and 7/4/99. The motion is supported by the affidavit of Luke Wangi sworn on 12/9/00. Mr. Wangi is the Chairman of the Board of Directors of the defendant company.

Proceedings were commenced at Waigani by Originating Summons.

The 3 ex parte orders were made by the National Court at Waigani. The proceedings were transferred to Lae on the 16 November, 1999, principally, I suppose because the business operating base of the two companies is based in Lae, the nature of business being stevedoring business located in the premises of the Lae Main Wharf.

I set out hereunder the full text of these 3 ex parte orders and the substantive relief sought in the Originating Summons filed on 6/8/98. The substantive relief sought in the Originating Summons are -

"The Plaintiff Claims:

1. Pursuant to Section 104 of the Companies Act, 1997 the Annual
General Meeting of Labu Holdings Pty Ltd be called on or before
10 September 1998.
2. Such meeting shall be called for the purposes, namely:
2.1 To present the Auditors Financial Report;
2.2 To present the Annual Report;

2.3 To present a legal report (with recommendations) as to
current legal situation of company's share structures and other
matters;
2.4 To elect a new Board of Directors;
2.5 To rectify company records to properly reflect shareholding
as against subscriptions, for each subscribing villager in each
village, namely Labu Miti, Labu Tali and Labu Butu.
3. An independent auditor (not having any connection directly or
indirectly with the Defendant company) shall be appointed forthwith
to carry out an Independent Financial Audit, from any one of the
following three firms:

(a) Coopers & Lybrands — Lae;
(b) Unitech Development Corporation — Accounts Division -
Lae;
(c) Richard Hill & Associates — Port Moresby.
4. The Board of Directors of the Defendant shall make available to the
Independent Auditor, all Banking documents, accounts, records,
cheque books or financial document or company records wherever
held, immediately upon request.
5. Until the Annual General Meeting the Defendant shall be prohibited
from transacting its Bank South Pacific (Lae Branch) Accounts and
such other accounts in such other bank(s), save and except
provisions for the following necessary expenses; payable only upon
presentation and approval of invoice:
1. Auditing Fees — K6,000.00
2. Legal Fees (Saulep Lawyers) — K3,500.00
3. Administration Expenses of company until AGM — K6,500.00
4. Travel & Accommodation Expenses of Plaintiff
x 2 trips to Pom — K2,000.00
6. The three villages, namely Labu Miti, Labu Tali and Labu Butu shall
each be represented by one person only for voting purposes at the
Meeting, who shall be the Village Councillor, a church representative or
other literate person, who shall exercise such voting rights in the
capacity of Trustee. Such person or representative shall be nominated
and the Plaintiff notified of such appointment fourteen (14) days prior
to the date of the meeting.
7. The only persons who will vote at the annual general meeting are the
following:
(a) Gaman Holdings Pty Ltd represented by Mr. Philip Gaman or his
nominee or proxy;
(b) 1 x representative of Labu Miti;
(c) 1 x representative of Labu Tali;
(d) 1 x representative of Labu Butu".

"Order

THE COURT ORDERS (per Sheehan J.)

1. Pursuant to Section 104 of the Companies Act, 1997 the Annual
General Meeting of Labu Holdings Pty Ltd be called on or before
10 September 1998.
2. Such meeting shall be called for the purposes, namely:
2.1 To present the Annual Report;
2.2 To present the Auditors Report for 1994 — 1998 inclusive;
2.3 To elect a new Board of Directors.
3. An independent auditor shall be forthwith appointed to carry out the
audit of the Company's accounts for the year 1994, 1995, 1996,
1997 and 1998 and the Board of Directors of the Defendant shall
make...