OS No. 649 of 2007; Andrew Posai v Bevan Saile. Francis Amon, Sare Resources Ltd (2008) N3260

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2008) N3260
• Date: 22 February 2008
• Year: 2008

Full Title: OS No. 649 of 2007; Andrew Posai v Bevan Saile. Francis Amon, Sare Resources Ltd (2008) N3260

National Court: Lay J

Judgment Delivered: 22 February 2008

CIVIL - Companies Act s425 - meaning of "theft" as used in s425(5) - whether a conviction for misappropriation contrary to Criminal Code s383A is theft.

PNG Cases Cited

SCA 886 (2007) Mondiai and anor v Wawoi Guavi Timber Co Ltd & ors; SC674 (2001) Canisius Karingu v Papua and New Guinea Law Society; N1501 (1996) The State v Micky Kauri; N1930 The State v Tony Baik; N2857 (2005) The State v Alice Wilmot

Legislations Cited:

Papua New Guinea Legislation

Companies Act 1997; Criminal Code

Overseas Legislation

New Zealand Companies Act 1993; New Zealand Crimes Act; Queensland Criminal Code

Facts

The Plaintiff brought these proceedings amongst other purposes to have the court declare that he is the lawfully elected managing director of the Third Defendant and to prevent the First and Second Defendants from interfering with his management of the Third Defendant. The First and Second Defendants by motion sought orders that the proceedings be struck out on the basis that the Plaintiff is a person prohibited from being a director or involved in management of a company by reason of the provisions of Companies Act 1997 s425 (conviction of an offence involving dishonesty).

Held

1. "theft" in its ordinary and usual meaning as used in Companies Act 1997 s425(5) includes misappropriation;

2. a person convicted of misappropriation pursuant to the provisions of Criminal Code s383A is a person convicted of theft within the meaning of "theft" as used in Companies Act 1997 s425(5);

3. The Plaintiff is by virtue of his conviction for misappropriation on the 21 June 2004 prohibited from being a director or being involved in the management of a company until 20 June 2009;

4. The Plaintiff has no standing to bring the proceedings which are dismissed with costs.

1 LAY J.: The Plaintiff commenced these proceedings, amongst other things, for a declaration that he is the duly elected managing director of the Third Defendant and for injunctions preventing the First and Second Defendants from interfering with his management of the Third Defendant, particularly in relation to the procurement of a contractor approved by the Forest Authority to exploit the Third Defendant’s timber rights purchase area.

2 Amongst other applications the First and Second Defendants have applied by notice of motion for an order that:

" The Plaintiff be and hereby is prohibited from holding the office of Director of any company including the Third Defendant for a period of five years from 21 June 2004 pursuant to Order 12 Rule 1 and Section 425 of the National Court Rules and Companies Act 1997, respectively".

3 The Defendants seek that the proceedings be struck out pursuant to National Court...