Pacific Native Timbers (PNG) Ltd v Andrew Donaldson and Shiloh Timbers Ltd (2005) N2933

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 18 November 2005
• Citation: (2005) N2933
• Docket Number: WS No 1620 of 2005
• Year: 2005

Full Title: WS No 1620 of 2005; Pacific Native Timbers (PNG) Ltd v Andrew Donaldson and Shiloh Timbers Ltd (2005) N2933

National Court: Cannings J

Judgment Delivered: 18 November 2005

1 Injunctions—interim orders—application to set aside or discharge interim injunction made ex parte—jurisdiction of court—considerations to take into account when deciding whether to set aside injunction.

The plaintiff filed proceedings against the defendants for breach of contract, claiming damages and orders for reimbursement of moneys obtained by the defendants allegedly on behalf of the plaintiff and for the transfer of property allegedly owned by the plaintiff and in the possession of the defendants. Soon after the filing of the substantive proceedings the court granted ex parte orders in the nature of an interim injunction. On the return date of the interim injunction the defendants applied to have the injunction discharged. This is a ruling on that application.

Held:

(1) The National Court has jurisdiction to set aside its earlier interim orders. This power exists irrespective of whether the previous orders were made by the same Judge who is dealing with the application to set aside the previous orders.

(2) There are at least six considerations to take into account in deciding whether to set aside an interim injunction. (Mainland Holdings Ltd and Others v Stobbs and Others (2003) N2522 and Mark Ekepa and Others v William Gaupe and Others (2004) N2694 applied.)

(3) Three of those considerations in this case were neutral. The remaining three strongly favoured the setting aside of the interim injunction.

(4) Accordingly the interim injunction was dissolved.

Mainland Holdings Ltd and Others v Stobbs and Others (2003) N2522 and Mark Ekepa and Others v William Gaupe and Others (2004) N2694 referred to

NOTICE OF MOTION

This was an application made on the return of an interim injunction for the discharge of the injunction.

Ruling on Motion

___________________________

Cannings J:

INTRODUCTION

This is a ruling on an application by the defendants to discharge an interim injunction.

BACKGROUND

Writ and statement of claim

On 20 October 2005 Narokobi Lawyers filed a writ of summons and statement of claim on behalf of the plaintiff, Pacific Native Timbers (PNG) Ltd. It is claimed that the first defendant, Andrew Donaldson, and the second defendant, Shiloh Timbers Ltd, had breached an oral agreement entered into with the plaintiff in January 2005. The terms of the agreement were that:

the plaintiff would assist in the incorporation of the second defendant;

the plaintiff would assist the first defendant secure a permit from the National Forest Authority to mill timbers;

the plaintiff would provide venture capital to and be the management company for the second defendant;

timber milled by the second defendant with machines and capital provided by the plaintiff would be exported by the plaintiff and money received by the plaintiff through its parent company, Pacific Native Timbers (NZ) Ltd, would be paid to the second defendant;

ownership of machines, equipment, motor vehicles etc bought by the plaintiff or its parent company would remain with the plaintiff;

the second defendant would mill timbers, and income from the sale of timber would be used to repay the loan to the plaintiff and reinvested into the second defendant's operations.

The plaintiff claims that the defendants breached the agreement by not milling enough timber; incurring exuberant debts; directly receiving money derived from the export of milled timber and paying it into the second defendant's account at Westpac, Madang and transferring it to a bank account of the wife of the first defendant in New Zealand.

The plaintiff raises breach of contract as its cause of action. It seeks damages and orders for reimbursement of moneys...