John Wano v Radio Taxis Ltd

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 20 March 2018
• Citation: (2018) N7166
• Court: National Court
• Year: 2018
• Judgement Number: N7166

Full : OS No 561 of 2016; John Wano & Siwi Kuni Co Ltd and Mokonda Reina Rema v Radio Taxis Limited (2018) N7166

National Court: David, J

Judgment Delivered: 20 March 2018

N7166

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS No.561 of 2016

BETWEEN:

JOHN WANO & SIWI KUNI CO LTD

First Plaintiff

AND:

MOKONDA REINA REMA

Second Plaintiff

AND:

RADIO TAXIS LIMITED

Defendant

Waigani: David, J

2018: 12, 14, 15 & 20 March

COMPANY LAW – competency of proceedings - allegation by a director of replaced first plaintiff company that proceedings commenced without his consent – company with no constitution - statutory requirements governing proceedings of the board of a company – Companies Act, Sections 27, 28, 29, 32, 138 and Schedule 4.

PRACTICE & PROCEDURE – application to dismiss proceedings for disclosing no reasonable cause of action – National Court Rules, Order 12 Rule 40(1).

PRACTICE & PROCEDURE – application for summary judgment – National Court Rules, Order 12 Rule 38(1).

PRACTICE & PROCEDURE – application to continue proceedings on pleadings – National Court Rules, Order 4 Rule 35.

PRACTICE & PROCEDURE – application to join parties – National Court Rules, Order 5 Rule 8(1).

Cases cited:

AGC (Pacific) Ltd v Sir Albert Kipalan & Ors (2000) N1944

Curtain Brothers (Qld) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285

Chief Collector of Taxes v T.A. Field Pty Ltd [1975] PNGLR 144

Commissioner General of Internal Revenue v Bougainville Copper Ltd (2009) N3857

Dep International Private Ltd v Ambogo Sawmill Pty Ltd [1987] PNGLR 117

Hornibrook Constructions Pty Ltd v Kawas Express Corporation Pty Ltd [1986] PNGLR 301

Kumul Builders Pty Ltd v Post and Telecommunication Corporation [1991] PNGLR 299

Kara v Public Curator of Papua New Guinea (2010) N4048

Kiee Toap v The Independent State of Papua New Guinea (2004) N2731

Magasaki Ltd v Linus Bai (2007) N3221

Nali Hole v Allan Mana (2016) SC1536

Open Bay Timber Limited & PNG Forest Authority v Hon. Lucas Dekena & Ors (2013) N5109

Philip Takori v Simon Yagari (2008) SC905

PNG International Hotels Pty Ltd & Anor v The Registrar of Land Titles and Ors (2007) N2307

PNG Deep Sea Fishing Ltd v Critten (2010) SC1126

Ralph Augustine Saulep v ANZ Banking Group (PNG) Ltd (2016) N6395

Simon Puraituk v The State (2007) N3204

Severinus Ampaoi v Bougainville Copper Ltd (2012) SC1166

Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112

The State v Henshi Engineering Pty Ltd [1998] PGSC51, SC594

Umapi Luna Pakomeyu v James Siai Wamo (2004) N2718

Wamena Trading Company Ltd v Civil Aviation Authority of Papua New Guinea (2006) N3058

William Duma v Eric Meier (2007) SC898; PGSC 34

Walapli v Parindali (2007) N3172

Counsel:

Gertrude Kubak, for the Plaintiffs

Sanol Malaga, for the Defendant

RULING

20 March, 2017

1. DAVID, J: INTRODUCTION: The defendant/cross-claimant, Radio Taxis Limited (the defendant) commenced eviction proceedings against a number of individuals who were occupying all that piece or parcel of land described as Portions 441 and 442 Milinch of Granville and Fourmil of Moresby in the National Capital District, State Lease Volume 8 Folio 1998 (the land) in the Port Moresby District Court on 26 March 2015 in proceedings entitled DCC Gr.5 No.109 of 2015 between the defendant there as complainant and Victor Guba and others as defendants (the eviction proceedings). On 3 August 2016, the District Court granted eviction orders. On 29 August 2016, the eviction orders were set aside. John Wano & Siwi Kuni Investment Limited, initially named as the first plaintiff and the second plaintiff, Mokonda Reina Rema were not named as parties to the eviction proceedings, so they applied to be joined as interested parties due to the existence of a contract for the sale and purchase of the land entered into between John Wano & Siwi Kuni Investment Limited and the Registrar of Companies exercising powers under Sections 372 and 373 of the Companies Act on behalf of Mai Trading Ltd, a defunct company dated 17 April 2012. On 14 October 2016, leave was granted for their joinder. On 10 May 2017, the District Court dismissed the eviction proceedings for lack of jurisdiction.

2. By originating summons filed on 31 August 2016, the plaintiffs commenced these proceedings whereby they claim, among others, a declaration that the first plaintiff (then named as John Wano & Siwi Kuni Investment Limited) is the legal proprietor of the land and is entitled to the full protection of the law under Section 33 of the Land Registration Act or alternatively, a declaration that the first plaintiff (then named as John Wano & Siwi Kuni Investment Limited) is entitled to be registered as the legal proprietor of the land and is entitled to the full protection of the law under Section 33 of the Land Registration Act. In the originating summons, the plaintiffs also claim consequential relief.

3. On 19 May 2017, the defendant filed its notice of intention to defend the action.

4. On 17 August 2017, the Court granted leave to the defendant to file a cross-claim.

5. On 24 August 2017, the defendant filed its cross-claim in which it claims that the plaintiffs are not entitled to the declarations sought, but to the contrary, it be declared as the registered proprietor of the land within the meaning given in Section 32(a) of the Land Registration Act and be entitled to the protection accorded to a registered proprietor under Section 33 of the Land Registration Act. In the cross-claim, the defendant/cross-claimant also seeks consequential relief.

6. Following enquiries made by the Court on 14 March 2018 about the name and standing of John Wano & Siwi Kuni Investment Limited then named as first plaintiff, on 15 March 2018, the name of the first plaintiff was substituted by John Wano & Siwi Kuni Co Ltd with leave of the Court upon a formal application to amend having been moved by the plaintiffs pursuant to an uncontested notice of motion filed on the same date.

RELIEF SOUGHT IN MOTIONS

7. This is a decision on two contested motions filed by the opposing parties that seek:

1. an order to dismiss the proceedings for:

(a) want of instructions as John Wano, director and shareholder of the plaintiff company has not given his consent or approval for these proceedings to be instituted pursuant to Order 12 Rule 1 of the National Court Rules and Section 138 and Schedule 4 of the Companies Act.

(b) disclosing no reasonable cause of action or are frivolous or vexatious or are an abuse of the process of the Court pursuant to Order 12 Rule 40(1) of the National Court Rules.

2. the entry of summary judgment for the defendant in terms of paragraphs 3, 4, 5, 6 and 7 of the cross-claim.

3. an order for the proceedings to continue on pleadings and the filing of a statement of claim pursuant to Order 4 Rule 35(1) and (2)(b) of the National Court Rules.

4. leave to join the Registrar of Titles and the Independent State of Papua New Guinea as parties to the proceedings pursuant to Order 5 Rule 8(1) of the National Court Rules.

8. With regard to the relief sought under Order 12 Rule 40(1), at the hearing, the defendant opted to pursue only the ground under Rule 40(1)(a) to dismiss the proceedings for disclosing no reasonable cause of action.

EVIDENCE

9. In support of its notice of motion filed on 14 September 2017, the defendant relies on the:

1. Affidavit of Adam Kuli Katuna sworn on 6 June 2017 and filed on 19 June 2017 (first affidavit);

2. Affidavit of John Wano Pepena sworn on 17 July 2017 and filed on 31 July 2017;

3. Affidavit of Adam Kuli Katuna sworn on 2 August 2017 and filed on 4 August 2017 (second affidavit);

4. Affidavit of Adam Kuli Katuna sworn on 7 September 2017 and filed on 14 September 2017 (third affidavit);

5. Affidavit of Adam Kuli Katuna sworn on 6 October 2017 and filed on 9 October 2017 (fourth affidavit).

10. In support of their notice of motion filed on 10 October 2017, the plaintiffs rely on the:

1. Affidavit of Mokonda Reina Rema sworn and filed on 31August 2016 (first affidavit);

2. Affidavit of Mokonda Reina Rema sworn and filed on 10 October 2017 (second affidavit).

ISSUES

11. The main issues that I need to consider and decide are:

1. Whether these proceedings should be dismissed for want of instructions from John Wano Pepena who claims to be a shareholder and director of the first plaintiff company then named as John Wano & Siwi Kuni Investment Limited?

2. Whether these proceedings should be dismissed for disclosing no reasonable cause of action?

3. Whether summary judgment should be entered for the defendant in terms of paragraphs 3, 4, 5, 6 and 7 of the cross-claim?

4. Whether these proceedings should continue on pleadings and be commenced by the filing of a statement of claim?

5....