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

• Jurisdiction: Papua New Guinea
• Citation: [2000] PNGLR 69
• Date: 25 August 2000
• Court: National Court
• Year: 2000

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

National Court: Sevua J

Judgment Delivered: 25 August 2000

1 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.

2 Injunction—Title to land—Dispute as to ownership—Interim injunction to restrain eviction—Registration of title—Indefeasibility of title—Land Registration Act, s33.

3 Gobe Hongu Ltd v The National Executive Council (1999) N1920, 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 (1993) N1393, Robinson v National Airlines Commission (1983] PNGLR 476, F Hoffman–La Roche & Co AG v Secretary of State for Trade and Industry (1975] AC 295, Haro Yamis v Viviso Seravo, Minister for Lands and Others (WS 713 of 1998, Unnumbered and Unreported judgment dated 9 November 1998) and Mullens v Howell (1879) 11 Ch D 763 referred to

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Sevua J: On 11 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 8 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, 9 August, during motions, when the applicant was to move its motion, was aware of the time and date of hearing, which is 11 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 8 January 1998. On 12 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 and 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 8 January 1998, who granted, "Order in terms of draft order dated 8 January 1998 as amended." There is an affidavit of service sworn on 27 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 26 January 1998.

On 15 January 1998, Mr Kubak filed a Notice of Intention to defend on behalf of the defendant. On 4 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 17 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...