Mauga Logging Company Pty Ltd v South Pacific Oil Palm Development Pty Ltd (No 1) [1977] PNGLR 80

• Jurisdiction: Papua New Guinea
• Judge: Frost CJ
• Judgment Date: 16 March 1977
• Citation: [1977] PNGLR 80
• Court: National Court
• Year: 1977
• Judgement Number: N88

Full Title: Mauga Logging Company Pty Ltd v South Pacific Oil Palm Development Pty Ltd (No 1) [1977] PNGLR 80

National Court: Frost CJ

Judgment Delivered: 16 March 1977

1 Injunctions—principles for grant of interlocutory relief—action for damages for breach of contract—injunction to restrain defendant from disposing of compensation monies payable for acquisition of assets pending hearing of action

2 Constitutional law—jurisdiction of National Court to make necessary orders—Constitution s155(4)—whether supplement to equitable relief

3 PRACTICE AND PROCEDURE—Interlocutory relief—Injunction—Principles for grant of interlocutory relief—Circumstances where relief not available pursuant to principles of equity—Injunction to restrain defendant from disposing of assets pending hearing of action—Power of Court to make orders "as are necessary to do justice in the circumstances of a particular case"—Power supplemental to equitable relief—Powers on undertaking as to damages—Constitution s155(4)

4 PRACTICE AND PROCEDURE—National Court—Jurisdiction to make orders "as are necessary to do justice in the circumstances of a particular case"—Interlocutory injunction—Circumstances where relief not available pursuant to principles of equity—Power supplemental to equitable relief—Powers on undertaking as to damages—Constitution s155(4).

s155(4) of the Constitution provides:(4)Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

s155(4) of the Constitution provides: (4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

In an action for damages estimated at K565,800, for breach of contract, the plaintiff sought an interlocutory judgment restraining the defendant from remitting out of the jurisdiction the sum claimed, such sum to be deducted from compensation payable to the defendant by the Government of Papua New Guinea for acquisition of its assets in Papua New Guinea pursuant to s18 of the Palm Oil Industry (Biala Project Re–organisation) Act 1976, there being no other assets of the defendant available in Papua New Guinea for satisfaction of judgment should the plaintiff be successful in its action, and it being feared that all compensation moneys would be repatriated by the defendant to Japan, and there being no reciprocal legislation for enforcement of judgments with that country. It also appeared that the plaintiff's financial position was such that it was unable to give an undertaking as to damages.

Held:

(1) The principles of equity under which interlocutory injunctions are granted are applicable and enforceable as part of the underlying law of Papua New Guinea under the Constitution s20 and Sch2.2;

(2) One of the principles of equity in relation to injunctions is that an injunction is not available to restrain a man who is alleged to be a debtor from parting with his property.

Robinson v Pickering (1880–81) 16 Ch 660 at 661 followed.

(3) Accordingly, an interlocutory judgment was not available on the principles of equity so adopted as part of the underlying law.

(4) S155(4) of the Constitution, however, given its fair and liberal meaning as required by the Constitution Sch1.5.(2), extends to jurisdiction as well as procedure, and enables a Court to make an order in the nature of an interlocutory injunction, if the requirements of the section are met, even although no jurisdiction to make the order exists under the principles of common law or equity.

North London Railway Co v Great Northern Railway Co (1883) 11 QBD 30 referred to.

(5) In deciding whether or not a particular order is under s155(4) of the Constitution "necessary to do justice as between the parties" full regard must be given to the balance of considerations affecting each party.

(6) In the circumstances the plaintiff was entitled to the order sought, pursuant to s155(4) of the Constitution.

(7) The power to require an undertaking as to damages, is within the grant of power under s155(4) of the Constitution to make orders in such circumstances as to the Court seems proper.

(8) In the circumstances, no order should be made requiring the plaintiff to provide adequate security for the undertaking as to damages.

Motion for Interlocutory Injunction.

This was an action for damages for breach of contract, in which on notice of motion, an injunction was sought to restrain the defendant from disposing of compensation moneys payable for acquisition of its assets in Papua New Guinea, pending the hearing of the action.

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Frost CJ: In the action the plaintiff claims damages for breach in June or July 1973 by the defendant of a contract to purchase from the plaintiff 36 million super–feet of New Guinea export timber in round logs at a price of $6.00 per 100 super–feet.

It appears from affidavits filed on behalf of the plaintiff that following a preliminary agreement signed by the parties a draft contract was prepared, and then by letter dated 4 June 1973 the...