Davidwestern Advertising Limited v Hiri 152 Developments Limited and Papa Resource Developments Limited and Buria Rearea Caution Bay Limited and Boera Enterprises Limited and Porebada Investments Limited and Hiri Special Purposes Authority (2020) N8382

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 25 June 2020
• Court: National Court
• Citation: (2020) N8382
• Docket Number: WS (COMM) No 1075 of 2018 (No 2)
• Year: 2020
• Judgement Number: N8382

Full Title: WS (COMM) No 1075 of 2018 (No 2); Davidwestern Advertising Limited v Hiri 152 Developments Limited and Papa Resource Developments Limited and Buria Rearea Caution Bay Limited and Boera Enterprises Limited and Porebada Investments Limited and Hiri Special Purposes Authority (2020) N8382

National Court: Anis J

Judgment Delivered: 25 June 2020

N8382

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS (COMM) NO. 1075 OF 2018 (No. 2)

BETWEEN

DAVIDWESTERN ADVERTISING LIMITED

Plaintiff

AND

HIRI 152 DEVELOPMENTS LIMITED

First Defendant

AND

PAPA RESOURCE DEVELOPMENTS LIMIETD

Second Defendant

AND

BURIA REAREA CAUTION BAY LIMITED

Third Defendant

AND

BOERA ENTERPRISES LIMITED

Fourth Defendant

AND

POREBADA INVESTMENTS LIMITED

Fifth Defendant

AND

HIRI SPECIAL PURPOSES AUTHORITY

Sixth Defendant

Waigani: Anis J

2020: 22nd & 25th June

INTERLOCUTORY APPLICATION – Notice of motion – interim restraining order – mareva injunction – section 155(4) – Constitution – requirements for grant of mareva injunction considered

PRACTICE & PROCEDURES – Order 4 Rule 37 – National Court Rules – interlocutory relief in existing proceeding may be sought by way of a notice of motion – inapplicable

PRACTICE & PROCEDURES – Order 14 Rule 9(a) – National Court Rules –interim preservation of assets – its application – sought prior to commencement of proceedings - inapplicable

Cases Cited:

Davidwestern Advertising Limited v. Hiri 152 and 5 Ors (2019) N7951

Mauga Logging v. South Pacific Oil Palm Development Corporation [1977] PNGLR 80

Ewasse Landowners Association v. Hargy Oil Palm Ltd (2005) 2878

Nangamanga Ltd and Ors v. Gold Export Ltd and Ors (2011) N4570

Paul Paraka v. Eastern Highlands Provincial Government (2005) SC809

Mt. Uriwaka Enterprises Pty Ltd v. Bernard Baxter & Ors [1988] PNGLR 244

Bromley v. Finance Pacific Limited (2001) N2156

Counsel:

Mr J Fongenmale, for the Plaintiff

Mr M Phillip, for the Sixth Defendant

RULING

25th June, 2020

1. ANIS J: The plaintiff seeks interim mareva injunctions against the 6th defendant. Its application was heard at 1:30pm on 22 June 2020. I reserved my ruling thereafter to a date to be advised.

2. Parties have been notified so I will rule on it now.

BACKGROUND

3. I restate the background of this case from an earlier decision involving this matter, that is, Davidwestern Advertising Limited v. Hiri 152 and 5 Ors (2019) N7951, as follows:

3. The Hiri Local Level Government (LLG) is part of Central Province or the Central Provincial Government. A portion of its land area is regarded as part of the Papua New Guinea Liquefied Natural Gas (PNGLNG) impact area. Landowners from within the impact area created various companies including the 5 defendants.

4. In 2012, various developments were undertaken at the impact area in Hiri in the Central Province. The plaintiff was engaged to carry out civil works including engineering, construction, road grading and sealing to and from the various Hiri villages that were within the LNG impact area. The plaintiff had alleged that despite the work that it had undertaken as agreed to, the 5 defendants and the Central Provincial Government, had failed to settle its claim. So in an earlier proceeding, that is, WS 654 of 2014, the plaintiff claimed a total sum of K9, 122,101.40 against the 5 defendants and the Central Provincial Government. That matter was discontinued after consent orders were signed between the parties whereby a sum of K4, 500,000 was paid out by the Central Provincial Government, to the plaintiff. The plaintiff has since commenced the present proceeding against the 5 defendants and the 6th defendant, to claim the remaining balance of K4, 622, 101.40 which it says is still outstanding. So far, the plaintiff has obtained default judgment against the 1st, 2nd, 4th and 5th defendants.

4. The position has not changed much since. The matter has not progressed to trial in regard to the plaintiff’s claim against the 3rd and 6th defendants.

MOTION

5. In the meantime, the plaintiff had recently learnt, through the mainstream media, that monies were paid by the Central Provincial Government to the 6th defendant. On 2 June 2020, it filed this notice of motion. The main relief sought are terms 2 and 3, and I set them out herein in part:

2. Pursuant to Section 155(4) of the Constitution, Order 14 Rule 9(a), Order 4 Rule 37 of the National Court Rules, the Sixth Defendant and the Hiri Local Level Government, whether by its representatives, officers, members or agents or howsoever be restrained from dealing with, transferring and or interfering with any funds transferred to it by the Central Provincial Government or any other State Entities until the determination of this proceeding.

3. Pursuant to Section 155(4) of the Constitution, Order 14 Rule 9(a), Order 4 Rule 37 of the National Court Rules, the Sixth Defendant and the Hiri Local Level Government whether by its representatives, officers, members or agents or howsoever be restrained from dealing with, transferring and or interfering with infrastructure Development Grants and Development Levies contained in the following bank account namely….until the final determination of this proceeding or until the judgment debt is settled.

SOURCE

6. I note that the plaintiff refers to Order 4 Rule 37 and Order 14 Rule 9(a) of the National Court Rules, as part of the source of its application. In regard to Order 4 Rule 37, I note that it is a general source or rule which simply states that a person who intends to apply for an interlocutory relief in an existing proceeding, whether it be under a writ of summons or originating summons, may do so by way of a notice of motion. The said rule, in my view, cannot be a relevant source based on the intention of the plaintiff. I turn to the second source, that is, Order 14 Rule 9(a). I set it out herein:

Division 2.—Interim Preservation, etc.

9. Order before commencement of proceedings. (28/1)

In an urgent case, the Court may, on the application of a person who intends to commence proceedings —

(a) grant an injunction; or

(b) make any order which the Court might make in proceedings in the nature of an application for habeas corpus ad subjiciendum; or

(c) make orders for the custody of minors; or

(d) appoint a receiver,

to the same extent as if the applicant had commence, the proceedings and the application were made in the proceedings.

(Underlining is mine)

7. The key words in my view in the rule are as underlined. The plaintiff in this case is not intending to commence a Court proceeding. It has already filed this proceeding which is on foot. Therefore and in my view, it is misconceived or incorrect for the plaintiff to refer to Order 14 Rule 9(a) as a relevant source for its application for mareva injunction.

8. The plaintiff also relies on section 155(4) of the Constitution. The section states, and I quote in part, Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case. I note that the provision had been applied over the years in practice as evident in the case law. See cases: Mauga Logging v. South Pacific Oil Palm Development Corporation [1977] PNGLR 80; Ewasse Landowners Association v. Hargy Oil Palm Ltd (2005) 2878 and Nangamanga Ltd and Ors v. Gold Export Ltd and Ors (2011) N4570. I find the source relevant or sufficient and in so doing, I will proceed to consider the application.

MAREVA INJUNCTION

9. The plaintiff, as stated, seeks interim mareva injunctions. So on that basis, I ask myself this. What do I need to be satisfied of first before I may grant this relief? I refer to the case law, and in particular, to the Supreme Court’s case of Paul Paraka v. Eastern Highlands Provincial Government (2005) SC809. The Supreme Court stated and I quote:

The order granted in terms of paragraph 2 (a) (i) and (ii) of the respondent’s notice of motion are in the nature of a mareva injunction. A mareva injunction is an interlocutory injunction restraining the defendants from removing assets from or dissipating assets within the jurisdiction. The name is derived from the famous case of Mareva Compania Naviera SA v. International Bulkcarriers SA [1975] 2 Lloyds Rep 509; [1980] 1 All ER 213, which established the principle that the Court has jurisdiction to grant such an injunction to prevent a defendant from disposing of his assets in order to defeat a judgment.

There are criteria for the grant of a mareva injunction at common law, however the guidelines were established by Lord Denning MR in Third Chandris Shipping Corp v. Unimarine SA [1979] QB 645 at 668-669. These are:-

(i) The plaintiff should make full and frank disclosures of all matters in his knowledge which are material to the Judge to know.

We say this is the appellant’s duty of disclosure and we say no more of that criteria

(ii) The plaintiff should give particulars of his claim against the defendant, stating the ground of his claim and the...