Rose Peter v Mochon Peter

• Jurisdiction: Papua New Guinea
• Judge: Tamade AJ
• Judgment Date: 04 November 2022
• Neutral Citation: N10021
• Citation: N10021, 2022-11-04
• Counsel: Ms Judy Nandape, for the Applicant,Mr Willard Steven, for the Contemnor
• Hearing Date: 18 August 2022,04 November 2022
• Docket Number: OS NO. 209 OF 2021
• Court: National Court

N10021

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 209 OF 2021

Between:

Rose Peter

Plaintiff

v.

Mochon Peter

Defendant

Waigani: Tamade AJ

2022: 18^th August & 4^th November

JUDGMENT — parties previously husband and wife — contempt of court proceedings on previous Orders of the Court arrived at after mediation — Orders of Court ambiguous as parties intention not clear — Applicant has a duty to prove on the criminal standard of proof beyond reasonable doubt.

Cases Cited:

Daiva v Pukali, Ome Ome Forests Ltd v Cheong [2002] PGNC 61; N2289

Tikuye v Haines [2009] PGNC 259; N4434

Bishop v Bishop Bros Engineering Pty Ltd [1988–89] PNGLR 533

Counsel:

Ms Judy Nandape, for the Applicant

Mr Willard Steven, for the Contemnor

Nandape & Associates: Lawyers for the Plaintiff

Taito Lawyers: Lawyers for the Contemnor

4^th November, 2022

1. Tamade, AJ: The Plaintiff and the Contemnor were previously married but are now separated. These are contempt proceedings filed by the Applicant seeking Orders for Contempt of Court on Orders of the National Court in proceedings described as OS No. 46 of 2021. In those proceedings, the Applicant herein sought orders against the Contemnor and Registrar of Companies for unlawfully removing her as a shareholder and director on the various companies owned by the parties. There was a mediation held between the parties and the parties entered a mediation agreement which was converted into Consent Orders. The Applicant is therefore claiming that the Contemnor has not complied with the Consent Orders of 2 June 2021 entered in proceedings OS 46 of 2020 particularly terms 4 and 6 and that the Contemnor has refused to allow the Applicant to have access to their children who are with the Contemnor in Manus whilst the Applicant resides in Vanimo, West Sepik Province.

2. The Consent Orders of 2 June 2021 in OS 46 of 2020 are as set out below:

The Court Orders by Consent that:

i. That the Bank South Pacific shall transfer the balance of funds in the joint BSP bank account of Mochon and Rose Peter BSP account no. 100 111 1361 to Rose Peter's personal BSP account no. 100 043 4150 and the joint bank shall be closed forthwith.

ii. That the Bank South Pacific shall forthwith transfer currently held in the bank accounts listed below to the personal BSP account of Rose Peter account no. 100 043 4150 and a sum of K500.00 each shall be retained in the said accounts to keep them operational:

a) Juromo Enterprises Limited — 100 127 2862

b) Juromo Wholesale—100 163 9459

c) Juromo Hardware—101 155 4290

d) Juromo Stationery—100 119 7224

e) Kingfisher Hire Car—101 295 7302

iii. That the Bank South Pacific shall forthwith transfer the sum of K69, 382.88 from the Kingfisher lodge Bank account no. 700 729 2662 to the BSP Bank account of Rose Peter account no. 100 043 4150.

iv. That the Second Defendant shall organise for the transfer of the ownership of the two motor vehicles described below and currently registered in the name of Kingfisher Hire Cars to the name of Rose Peter:

a) Nissan Petrol registration no. LBT 828.

b) Ford Ranger double cab registration no. LTB 797.

v. That the Second Defendant shall pay a sum of K500,000.00 to the Plaintiff within a period of two years.

vi. That the Second Defendant shall transfer his interest in the properties described as allotment 35, section 27, Vanimo, Sandaun Province to the Plaintiff to hold it as the sole proprietor.

vii. That the Second Defendant shall transfer all of her interests in the properties listed below to Junior Mochon Peter so that the properties shall be conjointly owned by the Second Defendant and Junior Mochon Peter:

a) Section 66, allotment 02, Lorengau, Manus Province

b) Section 66, allotment 04, Lorengau, Manus Province

c) Section 66, allotment 05, Lorengau, Manus Province

d) Section 66, allotment 06, Lorengau, Manus Province

e) Section 66, allotment 07, Lorengau, Manus Province

f) Section 73, allotment 06, Lorengau, Manus Province

g) Section73, allotment 07, Lorengau, Manus Province

h) Section73, allotment 09, Lorengau, Manus Province

i) Section 73, allotment 10, Lorengau, manus Province

j) Section 73, allotment 11, Lorengau, Manus Province

k) Section 73, allotment 12, Lorengau, Manus Province

l) Section 73, allotment 13, Lorengau, Manus Province

m) Section 73, allotment 22, Lorengau, Manus Province

n) Section 73, allotment 23, Lorengau, Manus Province

o) Section 73, allotment 24, Loregau, Manus Province

p) Section 73, allotment 25, Lorengau Manus Province

viii. That the four children of the marriage of the parties shall remain in Manus with Second Defendant and the Plaintiff shall freely communicate with them whenever she is able to but as for the children visiting in Vanimo will be subject to approval by Second Defendant.

ix. That the following interim Court orders are set aside forthwith:

a) Court order made on 21^st September 2020 and filed on 2^nd October 2020.

b) Court order made on 21^st September 2020 and filed on 9^th February 2021.

c) Court order made on 4^th February 2021 and filed thereafter.

x. That the contempt of court application filed against the Second Defendant by way of a notice of motion on 10^th November 2020 is hereby withdrawn.

xi. That the party shall bear their own cost of the proceeding.

xii. That this proceeding hereby stands discontinued, and the Plaintiff shall file a notice of discontinuance of this proceeding with seven (7) days of this order.

xiii. That the Plaintiff shall keep the Second Defendant indemnified from any future claim, suit of cause of action arising from the same circumstances set of facts that gave rise to these proceedings.

3. It is the Applicant's submission that the Contemnor has not complied with Term 4 of the Consent Order in that he has not given up possession of the motor vehicles and has refused to transfer ownership to the name of the Applicant.

4. The Applicant has also submitted that Contemnor has not complied with Term 6 of the Consent Orders by not transferring his interest in the property described as Allotment 35, Section 27, Vanimo, Sandaun Province to the Plaintiff as the sole proprietor as agreed to.

5. Mrs Peter in her Affidavit filed on 17 September 2021 states that on 9 June 2021, she flew into Manus from Lae with the intention of seeing her children whom she had not seen in two years and who were living with Mr Peter. Mrs Peter after arriving in Manus on the next day went to the Juromo company premises and saw the Operations Manager Mr Jeremiah Balik and told him to ask Mr Peter that she wanted to use one of the vehicles that was agreed to be given to her. She also told Mr Balik to inform Mr Peter that she wanted to see the children. Mr Peter then replied through Mr Balik to Mrs Peter that he would ship the vehicles to Vanimo to Mrs Peter so that she could use them there as agreed and that she could not see the children.

6. Mrs Peter said in her affidavit that the two eldest children of the marriage, Junior Mochon and Meranda Mochon came to see her whilst she was in Manus however, she did not see the two younger children as they were living with Mr Peter and his new spouse. Mrs Peter later was informed by the two older children that they were scolded by Mr Peter for visiting Mrs Peter. Mrs Peter seems to suggest that Mr Peter was being difficult towards her by not honouring the agreement that both parties entered into. Mrs Peter then returned to Port Moresby on 12 June 2021.

7. Mrs Peter states in evidence that she travelled back to Manus on 30 July 2021 and visited their eldest son Junior Mochon. She was informed by her son that Mr Peter was upset about her seeing their son. Whilst Mrs Peter was in Manus, she instructed her lawyers to tell Mr Peter to organize and give the subject vehicles to her in Manus so that she can organize to transport the vehicles to Vanimo however there was no response from Mr Peter. Mrs Peter then returned to Port Moresby and made efforts to have the title of the subject property transferred to her and conveyed this to Mr Peter through her lawyers. Mrs Peter basically states that she has not had any progress dealing with Mr Peter to transfer the subject vehicles of the marriage to her and the subject property that is in Vanimo and that she has made many attempts through her lawyers, Mr Peter is in contempt of not complying with the Orders of the Court and...