Heni Totona for and on behalf Rausi Doko, Anda Guamo, Ako Kari, Maino Kari, Vaina Kari, Gabe Konia, Maba Lohia, Auum Oveai, Daure Vagi, Morea Peter, Heri Vaina, Igua Robert, Toa Ata, Auda Delena, Lahui Veria, Naime Doko & Kari Nou as former Shareholders and Directors of Buria-Rearea Caution Bay Limited v Alex Tongayu, Registrar of Companies and Doko Boha, Uda Dadi, Doko Gabe Morea, Auri Iru, Rausi Iri, Iru Kari, Igo Mea Uri, Konio Morea Hari, Kari Nou Kari, Kari Totona Kari, Tai Vagi Doroa, Delena Vagi Rea, Daure Veri Noho, United Church Rearea Village, West Redscar Circuit, Central Province, Loho Mapore, Ray Morea, Nou Maino, Robert Kauga, Vai Konio, Noami Morea, Vaiva Vagi, Nao Iru, Morea Veri, Vagi Nou Auda, Morea Avata, Hau Vagi & Morea Tarata as Directors and Shareholders of Buria-Rearea Caution Bay Limited and Buria-Rearea Caution Bay Limited (2012) SC1182

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J, Makail J& Logan, J
• Judgment Date: 04 May 2012
• Court: Supreme Court
• Citation: (2012) SC1182
• Docket Number: SCA NO 103 OF 211
• Year: 2012
• Judgement Number: SC1182

Full Title: SCA NO 103 OF 211; Heni Totona for and on behalf Rausi Doko, Anda Guamo, Ako Kari, Maino Kari, Vaina Kari, Gabe Konia, Maba Lohia, Auum Oveai, Daure Vagi, Morea Peter, Heri Vaina, Igua Robert, Toa Ata, Auda Delena, Lahui Veria, Naime Doko & Kari Nou as former Shareholders and Directors of Buria-Rearea Caution Bay Limited v Alex Tongayu, Registrar of Companies and Doko Boha, Uda Dadi, Doko Gabe Morea, Auri Iru, Rausi Iri, Iru Kari, Igo Mea Uri, Konio Morea Hari, Kari Nou Kari, Kari Totona Kari, Tai Vagi Doroa, Delena Vagi Rea, Daure Veri Noho, United Church Rearea Village, West Redscar Circuit, Central Province, Loho Mapore, Ray Morea, Nou Maino, Robert Kauga, Vai Konio, Noami Morea, Vaiva Vagi, Nao Iru, Morea Veri, Vagi Nou Auda, Morea Avata, Hau Vagi & Morea Tarata as Directors and Shareholders of Buria-Rearea Caution Bay Limited and Buria-Rearea Caution Bay Limited (2012) SC1182

Supreme Court: Hartshorn J, Makail J& Logan, J

Judgment Delivered: 4 May 2012

SC1182

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 103 OF 211

BETWEEN

HENI TOTONA for and on behalf RAUSI DOKO, ANDA GUAMO, AKO KARI, MAINO KARI, VAINA KARI, GABE KONIA, MABA LOHIA, AUUM OVEAI, DAURE VAGI, MOREA PETER, HERI VAINA, IGUA ROBERT, TOA ATA, AUDA DELENA, LAHUI VERIA, NAIME DOKO & KARI NOU AS FORMER SHAREHOLDERS AND DIRECTORS OF BURIA-REAREA CAUTION BAY LIMITED

Appellants

AND

ALEX TONGAYU, REGISTRAR OF COMPANIES

First Respondent

AND

DOKO BOHA, UDA DADI, DOKO GABE MOREA, AURI IRU, RAUSI IRI, IRU KARI, IGO MEA URI, KONIO MOREA HARI, KARI NOU KARI, KARI TOTONA KARI, TAI VAGI DOROA, DELENA VAGI REA, DAURE VERI NOHO, UNITED CHURCH REAREA VILLAGE, WEST REDSCAR CIRCUIT, CENTRAL PROVINCE, LOHO MAPORE, RAY MOREA, NOU MAINO, ROBERT KAUGA, VAI KONIO, NOAMI MOREA, VAIVA VAGI, NAO IRU, MOREA VERI, VAGI NOU AUDA, MOREA AVATA, HAU VAGI & MOREA TARATA AS DIRECTORS AND SHAREHOLDERS OF BURIA-REAREA CAUTION BAY LIMITED

Second Respondents

AND

BURIA-REAREA CAUTION BAY LIMITED

Third Respondent

Waigani: Hartshorn J, Makail J& Logan, J

2012: 01st & 04th May

SUPREME COURT APPEAL - Injunctions - Lifting of interim injunction - Exercise of discretion by primary judge - Interim injunction restrained removal of directors and shareholders of company - Removal of directors and shareholders based on purported shareholders meeting - Registrar of Companies effected shareholders’ decision by removing directors and shareholders from Companies Office records - Decision of Registrar of Companies subject of appeal in National Court - Reasons for lifting interim injunction discussed.

Facts

The appellants appealed against the primary judge’s decision in lifting an interim injunction which restrained the second respondents from holding themselves out and carrying out activities as directors and shareholders of the third respondent company.

Held:

1. Where an appeal is against a primary judge’s exercise of direction in lifting an interim injunction, the onus is on the appellant to show that the exercise of discretion is clearly wrong or an identifiable error has occurred in the exercise of discretion. Alternatively, the judgment or order may be set aside where there is no identifiable error, but it is “unreasonable or plainly unjust” such that an error can be inferred: Curtain Bros (PNG) Ltd -v- UPNG (2005) SC788 and The State -v- Sam Akoita & Others (2009) SC1016 referred to.

2. In the present case, the appellants had failed to show that the primary judge’s exercise of discretion in lifting the interim injunction was wrong. Further, no identifiable error has occurred in the exercise of discretion. In any case, the decision to lift the interim injunction was not “unreasonable or plainly unjust” such that it ought to be quashed.

3. The appeal is dismissed with costs to be taxed if not agreed.

Cases cited:

Curtain Bros (PNG) Ltd -v- UPNG (2005) SC788

The State -v- Sam Akoita & Others (2009) SC1016

Counsel:

Mr T Sirae, for Appellants

Ms N Abel for First Respondent

Mr T M Rei, for Second and Third Respondents

04th May, 2012

JUDGMENT

1. BY THE COURT: This is an appeal against the decision of the National Court of 16th August 2011 lifting an interim injunction. The interim injunction was issued by the National Court on 20th October 2010 and restrained the second respondents from holding themselves out and carrying out activities as directors and shareholders of the third respondent company. The appellants and the first respondents are landowners from Rearea village, a village located some few miles out of the city of Port Moresby and are one of groups of landowners benefiting from the LNG project that is currently being established to export liquefied gas. The substantive dispute is an appeal against the purported removal of the appellants as directors and shareholders of the third respondent company by the first respondents.

2. The appellants challenge the primary judge’s exercise of direction in lifting the interim injunction. Where an appeal is against a primary judge’s exercise of discretion, the onus is on an appellant to show that the exercise of discretion is clearly wrong or an identifiable error has occurred in the exercise of discretion. Alternatively, the judgment or order may be set aside where there is no identifiable error, but it is “unreasonable or plainly unjust” and such that an error can be inferred. see Curtain Bros (PNG) Ltd -v- UPNG (2005) SC788 which was subsequently endorsed and applied in The State -v- Sam Akoita & Others (2009) SC1016.

3. At the hearing in the National Court on 16th August 2011, the parties, in particular the appellants reported to the Court on the status of an appeal against the decision of the primary judge to order mediation. It appears there was some degree of uncertainty on the part of the appellants as to whether his Honour had earlier ordered mediation of the dispute pursuant to the Alternative Dispute Resolution Rules. That was the issue before his Honour. After receiving submissions from parties, in particular the appellants, his Honour reaffirmed his earlier decision to order mediation. His Honour’s attention was then drawn by counsel for the second and third respondents to the existence of the interim injunction and that it should be set aside.

4. The appellants’ main ground of appeal is that the primary judge erred in the exercise of discretion when he lifted the interim injunction because there was no formal application by notice of motion filed by the respondents before the primary judge to lift the interim injunction. In submissions, counsel for the appellants emphasised this point and submitted that his Honour erred when he entertained the oral application, as the appellants and counsel were caught by surprise and were denied a fair hearing. It was further submitted that the main reason why the primary judge lifted the interim injunction was because he was “frustrated” by the unwillingness of the appellants to participate in mediation through the Alternative Dispute Resolution process. Their action was deemed as a “delay tactic” to stall the resolution of the dispute and remain as directors and shareholders based on the interim injunction.

5. We note the appellants objected to the lifting of the interim injunction but...