Tian Chen Limited v The Tower Limited (No 1) (2002) N2313

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 08 November 2002
• Court: Supreme Court
• Citation: (2002) N2313
• Year: 2002
• Judgement Number: N2313

Full Title: Tian Chen Limited v The Tower Limited (2002) N2313

Supreme Court: Kandakasi J

Judgment Delivered: 8 November 2002

1 INJUNCTIONS—Interlocutory injunction—Continuity of—Principles relevant to grant and continuity or not of—Serious questions raised in the proceedings—Balance of convenience favouring continuity of—Likelihood of irreparable damage not only to the plaintiff but the country and others considered—Interlocutory injunction ordered to continue.

2 STAMP DUTY—Lease agreement not stamp dutied—Admission and reliance on such document—In equity a party may still rely on such an agreement.

3 CONTRACTS—Lease agreement—Inserting date of possession by one party—No endorsement of insertion by either of the parties—No agreement of the parties on the correctness of the details inserted—Evidence show parties agreeing to leave it blank to be filled in later, conditional on certainty in drawings for a fit out and actual fit out of rented premises—Condition not yet fulfilled—No agreement on the date of possession.

4 AGENCY—Principle of usual and apparent agent considered and applied—Real estate agent of landlord in lease agreement giving tenant no choice but to engage an architect of the agent's choice—Landlord failed to disclose at the earliest opportunity to the tenant of any authority in its real estate agent to engage architects as the landlord's agent—Architect found to be agent of the landlord.

5 EQUITY—Real estate agent with apparent authority to bind the landlord caused tenant to engage an architect to do architectural drawings for its fit out—Delay in drawings and fit out—Tenant not in arrears—No invoice or demand for rents due served on tenant—No evidence of any serious default in payment of rents—Duty to pay rents made conditional on architectural drawings and fit out—Landlord's apparent architectural agent cause of delay in drawings and fit out—Tenant incurred substantial expenses in import of equipment and material required for the intended purpose of its lease—Equity and fairness dictate an injunction against termination of lease.

6 LANDLORDS AND TENANT—Real estate agent having apparent authority to bind the landlord caused tenant to engage architect to do architectural drawings for its fit out—Delay in drawings and fit out—Tenant not in arrears—No invoice or demand for rents due served on tenant—No evidence of any serious default in payment of rents—Duty to pay rents made conditional on architectural drawings and fit out—Landlord’s apparent architectural agent cause of delay in drawings and fit out—Tenant incurred substantial expenses in import of equipment and material required for the intended purpose of its lease—Equity and fairness dictate against termination of lease.

7 Wine v Giglmai [1990] PNGLR 462, Markscal Limited and Robert Needham v Mineral Resources Development Company Pty Ltd and Orogen Mineral Pty Ltd and the Independent State of Papua New Guinea and Charles Lepani (OS 395/96) N1472, Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seaman's Union and Lawrence Titimur, Tony Hartwell and Didiulosi Boshen (1982) N393, AGK Pacific (NG) Ltd v Anderson (2000) N2062, Summers v Solomon [1857] 7 E & B 879, Pole v Leask [1862] 33 LJ Ch155, Panaroma Developments (Guildford) Ltd v Fidelis Furnishing Fabrics [1971] 2 QB 711, Chapleo v Brunswick PBS (1881) 6 QBD 686, Grammar Corporation v Provetine and General Investments Ltd [1952] QB 147, Freeman & Lockyer v Buckhurst Properties (Mangal) Ltd [1964] 2 QB 480; Jacobs v Morris [1902] 1 Ch 816, Overbrooke Estates Ltd v Glencombe Properties Ltd [1974] 1WLR 1335, American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 and Smith v Inner London Education Authority [1978] 1 All ER 411 referred to

___________________________

N2313

PAPUA NEW GUINEA

[In the National Court Justice]

OS. 629 OF 2002

BETWEEN:

TIAN CHEN LIMITED

Plaintiff

AND:

THE TOWER LIMITED

Defendant

WAIGANI: KANDAKASI, J.

2002: 25th October

8th November

INJUNCTIONS – Interlocutory injunction – Continuity of – Principles relevant to grant and continuity or not of – Serious questions raised in the proceedings – Balance of convenience favouring continuity of – Likelihood of irreparable damage not only to the plaintiff but the country and others considered – Interlocutory injunction ordered to continue.

STAMP DUTY – Lease agreement not stamp dutied – Admission and reliance on such document – In equity a party may still rely on such an agreement.

CONTRACTS – Lease agreement – Inserting date of possession by one party – No endorsement of insertion by either of the parties – No agreement of the parties on the correctness of the details inserted – Evidence show parties agreeing to leave it blank to be filled in later, conditional on certainty in drawings for a fit out and actual fit out of rented premises – Condition not yet fulfilled – No agreement on the date of possession.

AGENCY – Principle of usual and apparent agent considered and applied – Real estate agent of landlord in lease agreement giving tenant no choice but to engage a architect of the agents choice – Landlord failed to disclose at the earliest opportunity to the tenant of any authority in its real estate agent to engage architects as the landlords agent – Architect found agent of the landlord.

EQUITY – Real estate agent with apparent authority to bind the landlord caused tenant to engage an architect to do architectural drawings for its fit out – Delay in drawings and fit out – Tenant not in arrears – No invoice or demand for rents due served on tenant – No evidence of any serious default in payment of rents – Duty to pay rents made conditional on architectural drawings and fit out – Landlord’s apparent architectural agent cause of delay in drawings and fit out – Tenant incurred substantial expenses in import of equipment and material required for the intended purpose of its lease – Equity and fairness dictate an injunction against termination of lease.

LANDLORDS & TENANTS – Real estate agent having apparent authority to bind the landlord caused tenant to engage architect to do architectural drawings for its fit out – Delay in drawings and fit out – Tenant not in arrears – No invoice or demand for rents due served on tenant – No evidence of any serious default in payment of rents – Duty to pay rents made conditional on architectural drawings and fit out – Landlord’s apparent architectural agent cause of delay in drawings and fit out – Tenant incurred substantial expenses in import of equipment and material required for the intended purpose of its lease – Equity and fairness dictate against termination of lease.

Papua New Guinea Cases Cited:

Wal Wine v. Bill Giglmai [1990] PNGLR 462.

Markcal Limited & Robert Needham v. Mineral Resources Development Company Pty Ltd (Unreported judgement delivered on 05/996) N1472.

Employers Federation of Papua New Guinea v. Papua New Guinea Waterside Workers and Seamens Union (Unreported judgement delivered on 11/10/82) N393.

AGK Pacific (NG) Ltd v. William Brad Anderson Karson Construction (PNG) Ltd & Downer Construction (PNG) Ltd (Unreported judgement delivered on 04/12/99 or 00) N2062.

Overseas Cases Cited:

Summers v. Solomon [1857] 7 E & B 879.

Pole v. Leask [1862] 33 LJC h.155.

Panaroma Developments (Guild Ford) Ltd v. Fidelis Furnishing Fabrics [1971] 2 Q.B. 711.

Chapleo v. Brunswick P.B.S. (1881) 6 Q.B.D. 686.

Grammar Corporation v. Provetine and General Investments Ltd [1952] Q.B. 147.

Freeman & Lockier v. Buckhurst Properties (Mangal) Ltd. [1964] 2 Q.B. 480; Jacobs v. Morris [1902] 1Ch 816.

Overbrooke Estates Ltd v. Glencombe Properties Ltd. [1974] 1WLR 1335.

American Cyanamid Company v. Ethicon Limited (1975) 1 All E.R. 504.

Smith v. Inner London Education Authority (1978) 1 All E.R. 411 at 419.

Counsel:

Mr. G. Poole for Respondent/Plaintiff

Mr. P. Honey the Applicant/Defendant

8th November 2002

KANDAKASI, J: This is an application by the defendant for a lifting of an interim injunction against it. The injunction was issued on the plaintiff’s claim of the defendant taking steps to terminate a lease agreement between them for alleged non-payment of rents.

Initially, counsel for...