Samson Jubi and Three (3) Others v Susan Edna Fraser and Two (2) Others (2004) SC735

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 28 January 2004
• Citation: (2004) SC735
• Docket Number: SCA No 1 of 2004
• Year: 2004

Full Title: SCA No 1 of 2004; Samson Jubi and Three (3) Others v Susan Edna Fraser and Two (2) Others (2004) SC735

Supreme Court: Injia DCJ

Judgment Delivered: 28 January 2004

1 Supreme Court Appeals—Stay of interim injuctive orders—Four Fishing vessels—Principal factors—Arguable grounds of appeal, balance of convinience and maintenance of status quo, damages as an adequate remedy, considered—Application refused.

2 Gary McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279, Golobadana No 35 Ltd v Bank of South Pacific Ltd (2002) N2309, Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seamen's Union (1982) N393, AGK Pacific (NG) Ltd v Anderson (2000) N2062, Markscal Ltd v MRDC [1996] PNGLR 419 referred to

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Injia DCJ: The Appellants apply for a stay of the interlocutory judgment of Davani J of 2 January 2004, pending the hearing of the appeal. Her Honour granted interim injunctions in respect of four fishing vessels, the issue of ownership of which was the subject of proceedings commenced by the Respondents in WS No 1809 of 2003.

The facts in short are that on 19 November 2002 the parties entered into written Contracts of Sale in respect of four (4) fishing vessels supposedly "owned" by the Respondents. The vessels were registered in Australia supposedly under the respondents's names. The appellants agreed to pay fixed prices for the vessels. In compliance with the agreements, when the respondents delivered the vessels at Daru, the Appellants failed to complete the contracts by paying the purchase price. Subsequently, the parties entered into some mutual arrangements to conduct business and commence fishing operations under revenue–sharing arrangements, the precise terms of which are in dispute. The Appellants deregistered the Australian registration of the four (4) vessels and registered them in Papua New Guinea under the Appellants' names, under different names. The transfer of ownership through registration is in issue. Fishing licences were also obtained from PNG authorities. Fish caught in PNG waters was taken to Cairns and exported by the respondents and revenue received by the Respondents. Disagreeements occurred between the parties as the verification of fish caught, revenue earned, distribution of revenue between them and tax liabilities and other things. This resulted in the Appellants reporting the fishing activities of the Respondents to PNG authorities. On 23 October 2003 PNG authorities seized the vessels and took them to Port Moresby where the business operations underwent investigations. The vessels were later released to the Appellants. On 13 November 2003, the Appellants filed proceeding in the Supreme Court of Cairns seeking declaratory relief and damages. The Respondents filed their own proceedings at the Waigani National Court seeking declaratory relief and damages. Davani J granted interim injunctive orders in favour of the respondents These interim orders are now the subject of these appeal proceedings.

The interim injunctive orders appealed from are as follows:

"1. That the Defendants, their servants and or agents are to return the fishing vessels Seahawk, registered in PNG as Mundi 1, registered no 000944, Freedom, registered as Liberty, registered no 000946, Prospector, registered no 00947, Intrepid, registered as Riverlea Star, registered no 000945 to their original anchorage in Port Moresby Harbour until further order of this Honourable Court.

2. That the Defendants, their servants and or agents are restrained from any disposition, removal or dealings with the aforementioned vessels.

3. That the vessels shall in the interim be manned and maintained by a neutral person appointed by the Registrar of the National Court.

4. The Registrar of the National Court shall supervise the day to day upkeep and maintenance...