National Housing Corporation v Yama Security Services Pty Ltd (2000) N1985

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 25 August 2000
• Citation: [2000] PNGLR 69
• Court: National Court
• Year: 2000
• Judgement Number: N1985

Full Title: National Housing Corporation v Yama Security Services Pty Ltd (2000) N1985

National Court: Sevua J

Judgment Delivered: 25 August 2000

N1985

PAPUA NEW GUINEA

[National Court of Justice]

OS 12 of 1998

BETWEEN

NATIONAL HOUSING CORPORATION

Plaintiff

AND

YAMA SECURITY SERVICES PTY LIMITED

Defendant

Waigani: Sevua, J

2000: 11th & 25th August

Injunction – Practice and procedure – Application for interlocutory injunction – Undertaking as to damages not filed – No return date of injunction – Prejudice to defendant – Proper legal principles.

Injunction – Title to land – Dispute as to ownership – Interim injunction to restrain eviction – Registration of title – Indefeasibility of title – Land Registration Act, s.33.

Cases referred to:

Gobe Hongu Ltd v. NEC & Ors, unreported, N.1920, 8th June, 1999.

JT Stratford & Son Limited v. Lindley [1964] 3 All ER 102.

American Cyanamid Co. v. Ethicon Ltd [1925] AC 396

Employers Federation of PNG v. PNG Waterside Workers & Seamens’ Union & Ors, unreported, N.1393, 11th October, 1993.

Robinson v. National Airline Commission [1983] PNGLR 476

F. Hoffman – La Roche & Co. A.G. v. Secretary of State for Trade and Industry [1975] AC 295

Haro Yamis v. Viviso Seravo, Minister for Lands & Ors, unnumbered & unreported, 9th November, 1998.

Mullens v. Howell (1879) 11Ch.D. 763

J. Nalawaku for the Defendant/Applicant

25th August, 2000

SEVUA, J : On 11th August, I announced my decision in this matter and undertook to publish my full reasons later. This I now do.

By way of a Notice of Motion, the defendant sought orders that the restraining order obtained ex parte by the plaintiff on 8th January, 1998, be set aside; all the orders sought in this proceedings be dismissed for want of prosecution, and costs.

The Court notes that there is no appearance by the respondent/plaintiff, although Mr Otto, who appeared as counsel on Wednesday, 9th August, during motions, when the applicant was to move its motion, was aware of the time and date of hearing, which is 11th August. The Court is not aware of the reason the respondent is not represented. In any event, the Court is not going to wait for the respondent and its counsel. I think the failure of counsel to attend this morning clearly demonstrates the overall attitude of the plaintiff and its lawyers in this case. Be that as it may, the plaintiff and its lawyers must be prepared to accept any consequences, which may flow from this judgment.

The originating summons in this case was filed on 8th January, 1998. On 12th January, 1998, the plaintiff filed a Notice of Motion seeking a restraining order against the defendant from evicting the plaintiff from the property described as, Section 59, Allotments 6 & 7, Gordons. There is no order on both Court files however, the file notation in one of the files reveals that the application was heard by the Deputy Chief Justice on 8th January 1998, who granted, “Order in terms of draft order dated 8th January, 1998 as amended.” There is an affidavit of service sworn on 27th January 1998 by counsel for the plaintiff, Epita Paisat, who deposed to serving the originating summons, affidavit of Ludwig Maliha, and the Order on Mr Kubak on 26th January, 1998.

On 15th January, 1998, Mr Kubak filed a Notice of Intention to defend on behalf of the defendant. On 4th September, 1998, the plaintiff filed a Notice of Set-down for trial. Really, what I thought should have happened, was, the injunction should have been returned to Court so parties could argue whether it should continue or be discharged. Since then, no activity has taken place. The plaintiff has taken no reasonable steps to proceed with this matter until the defendant filed this motion on 17th July, 2000, some 2 years 5 months after the injunction was issued.

There are certain aspects of this case that concerns this Court and those are matters relating to procedures and law which will be highlighted in this judgment because it seems quite obvious that the defendant had been prejudiced to this day.

The first matter to be highlighted here is the plaintiff’s failure to file and serve an undertaking as to damages. Either the plaintiff’s counsel then and now is ignorant or arrogant, but for his benefit, his attention is drawn to the requirement for filing an undertaking as to damages. The learned author of Injunctions: A Practical Handbook, N.R. Burns, Law Book Company Ltd, 1988, says at p.16:

“A plaintiff who applies for an interlocutory

injunction whether ex parte or after hearing is

required, as a condition for obtaining the order

to give the “usual undertaking as the damages”.”

This is a simple procedural and legal requirement that a practitioner should know. Inpractice if the undertaking is not filed prior to or at the time of the application for injunction, a usual verbal undertaking should be given and the undertaking filed soon after the order was granted. It is a simple rule of thumb, and I see no reason at all for the plaintiff not to have done this in January, 1998. There are many authorities both in this jurisdiction and in other jurisdictions on injunctions. But it seems obvious that many lawyers do not read judgments and do not carry out research, and this reflects badly on their case preparation.

Be that as it may, I consider that the undertaking as to damages works out both ways, and is not detrimental to the applicant in anyway. If he succeeds, he suffers no harm from having given the undertaking. However, if he fails, he will have to compensate the defendant for any loss the defendant suffers. I think the classic statement of the law pronounced by Lord Diplock in F. Hoffmann - La Roche & Co. A.G. v. Secretary of State for Trade and Industry [1925] AC 295 at 361 clearly illustrates this point. Lord Diplock said:-

“Besides mitigating the risk of injustice to the

defendant the practice of exacting an undertaking

as to damages facilitates the conduct of the business

of the courts. It relieves the court of the necessity

of embarking at an interlocutory stage upon an inquiry

as to the likelihood of the defendant being able to establish

facts to destroy the strong prima facie case which

ex hypothesi will have been made out by the plaintiff.

The procedure on motions is unsuited to inquiries

into disputed facts. This is best left to the trial of the

action, and if the plaintiff then succeeds in establishing

his claim he suffers no harm from having given

the undertaking, while if he fails to do so, the defendant

is compensated for any loss which he may have suffered

by being temporarily prevented from doing what he was

legally entitled to do so.”

In Gobe Hongu Limited v. The National Executive Council & Ors unreported judgment, N1920 of 8th June 1999, I discussed this issue. At page 6 of the judgment, I said, “The usual undertaking as to damages is a condition precedent to the granting of an interlocutory injunction. Such must therefore be given by the applicant at the time of making the application, ie. filed at the time of, or prior to the making of the application.” As the learned author Burns said, “it is a condition for obtaining the order to give the usual undertaking as to damages.” The plaintiff failed to fulfil that requirement.

Counsel for the applicant, Mr Nalawaku in his submissions, referred to Halsburys Laws of England, Vol 24 paras 854 – 8560 and raised the other two issues which I wish to address. These issues are, whether there is a serious question to be tried, and the balance of convenience.

In Gobe Hongu, I summarised several authorities on the law on injunction. I alluded to the relevant legal principles in J.T. Stratford & Son Limited v. Lindley [1964] 3All ER 102 as applied and expanded in the latter case of American Cyanamid Co v. Ethicon Ltd [1975] AC 396, which principles received very good reception in Papua New Guinea. Those principles are set out in detail by His Honour, Kapi, DCJ in Employers Federation of Papua New Guinea v. Papua New Guinea Waterside Workers and Seamen’s Union & Ors, unreported judgment, N.393 of 11th October 1982. I adopt those principles here, as I did in Gobe Hongu.

It is trite law that on an application for an interlocutory injunction, the...