Straits Contracting (PNG) Pty Ltd v Branfill Investments Limited

• Jurisdiction: Papua New Guinea
• Judge: Bredmeyer J, Los J, Hinchliffe J
• Judgment Date: 21 December 1988
• Citation: [1988] PNGLR 239
• Court: Supreme Court
• Year: 1988
• Judgement Number: SC360

Supreme Court: Bredmeyer J, Los J, Hinchliffe J

Judgment Delivered: 21 December 1988

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

STRAITS CONTRACTING (PNG) PTY LTD

V

BRANFILL INVESTMENTS LTD

Waigani

Bredmeyer Los Hinchliffe JJ

1-2 December 1988

21 December 1988

EVIDENCE — Admissibility — Fresh evidence — Re-opening case — Discretion of court — Relevant considerations — Whether ruling on admission of appealable.

APPEAL — Leave to appeal — From discretionary interlocutory ruling — From leave to adduce fresh evidence — Care in granting.

Held

(1) An application by a party to re-open his case to admit "fresh evidence" is a matter within the discretion of the court as to which the following matters, inter alia, are relevant:

(a) that the fresh evidence would, if believed, probably affect the result;

(b) that the fresh evidence could not with reasonable diligence have been discovered before;

(c) that the fresh evidence was not omitted by inadvertence; and

(d) that the fresh evidence was not omitted by deliberate inadvertence.

Parao Tunboro v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 272, approved and followed.

(2) The Supreme Court should hesitate to overturn a trial judge on a discretionary interlocutory ruling.

Cases Cited

Parao Tunboro v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 272.

Leave to Appeal

This was an application for leave to appeal against rulings permitting a petitioning creditor, in proceedings to wind up a company, to adduce fresh evidence after the close of evidence but before final submissions.

Counsel

I Molloy and K Yalo, for the appellant.

I Batch and P Lowing, for the respondent.

Cur adv vult

21 December 1988

BREDMEYER LOS HINCHLIFFE JJ: In this case after the conclusion of argument we reserved overnight and, on the next day, 2 December 1988, we announced our order. In each case leave to appeal was refused and the appeal was dismissed with costs. We certified the case as an appropriate one to engage overseas counsel. The question of costs on an earlier stay was reserved to the trial judge. We said we would publish our reasons later and this we now do.

The appellant seeks leave to appeal against two orders made by Konilio AJ on 8 August 1988 and 2 September 1988 in the same cause. The background to the orders is as follows. The respondent in each appeal, Branfill Investments Ltd (hereinafter called Branfill) was the petitioner in an action to wind up Straits Contracting (PNG) Pty Ltd (hereinafter called Straits Contracting). Branfill was a 40 per cent shareholder in Straits Contracting which in turn was a 25 per cent shareholder in Wawoi Guavi Timber Co Pty Ltd (hereinafter called Wawoi) which latter company had a timber permit or permits in the Western Province of Papua New Guinea. At an extraordinary general meeting of Wawoi held on 14 October 1986 the capital of the company was increased from K10,000 to K1,300,000 and 1,256,405 new shares at K1.00 each were allotted to Straits Engineers Contracting (Singapore) Pte Ltd in satisfaction of loans made by that company to Wawoi. In other words, loans made by that company were converted to share capital. The efect of the new issue and allotment was the dilution of the shareholding of Straits Contracting in Wawoi. Instead of owning 25 per cent of the shares in Wawoi it now owned 0.00197 per cent of the total share capital of the company. And because Branfill owned 40 per cent of the shares in Straits Contracting it became the indirect owner of 40 per cent of 0.00197 per cent of the share capital of Wawoi.

According to the minutes of that extraordinary general meeting of Wawoi held on 14 October 1986 the reasons for increasing the share capital were as follows:

"It was noted that as a term of the approval granted by the Minister for Forests to the acquisition by Straits Engineers Contracting (Singapore) Pte Ltd of all shares in the company not owned by Straits Contracting (PNG) Pty Ltd it is required that the loan made by Straits Engineers Contracting (Singapore) Pte Ltd to the company now totalling K1,256,405 be converted to equity in the company."

The petition alleges that this was not in fact one of the terms of approval granted by the Minister for Forests and also that there was no loans owing by...