White Corner Investments Ltd v Regina Waim Harro (2006) N3089

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2006) N3089
• Year: 2006
• Docket Number: WS No. 1340 of 2001
• Date: 12 September 2006

Full Title: WS No. 1340 of 2001; White Corner Investments Ltd v Regina Waim Harro (2006) N3089

National Court: Gabi, J

Judgment Delivered: 12 September 2006

PRACTICE AND PROCEDURE—Interlocutory injunction—Undertaking as to damages—No cause of action—Application for enforcement of an undertaking is to be made in the proceedings in which the undertaking was given—Assessment of damages at the conclusion of trial—Applicable principles where injunction discharged before trial.

Cases Cited:

Papua New Guinea Cases: Gabriel Apio Irafawe v Yauwe Riyong (1999) N1915; Patterson Lowa, Minister for Minerals and Energy & Ors v Wapela; Akipe & Ors [1991] PNGLR 265); PNG Forest Products Pty Ltd and Inchcape Berhad v The State and Jack Genia [1992] PNGLR 85); Vari Gari v Motor Vehicle Insurance Limited, Unreported and Unnumbered (June 2005)

Overseas cases:

Air Express Limited v Ansett Transport Industries (Operations) Proprietary Limited [1978-1981] 146 C.L.R 249; Brimson v Rocla Concrete Pipes Ltd: Supreme Court Proceedings New South Wales Vol.2 [13.029] of 30 April 1983; Cheltanham & Gloucester Building Society v. Ricketts & Ors [1993] 1 WLR 1545; Financiera Avenida v Shiblag, The Times, 14 January; Court of Appeal (Civil Division) Transcript No. 957 of 1990; F. Hoffmann-La Roche & Co. A.G. v. Secretary of State for Trade and Industry [1975] A.C 295; Griffith v. Blake (1884) 27 Ch D. 474; Re Hailstone, Hopkinson v Carter (supra); Re Hailstone, Hopkinson v Carter (1910) 102 L T 877; Smith v. Day (1882) 21 Ch.D. 421

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Introduction

1. GABI, J: This is an application by the defendant to dismiss the proceedings pursuant to O.8 r.27 of the National Court Rules.

2. There were two (2) applications on notice before the Court; one by the plaintiff seeking an order to dispense with the defendant’s consent so as to have this matter listed for trial; and the other by the defendant to strike out the Statement of Claim for failing to disclose a cause of action, causing prejudice and embarrassment and being an abuse of process. The defendant relied on the affidavit of Kerenga Kua dated 24 May, 2006. No affidavit was filed by the plaintiff in reply. On the day of the hearing, it was agreed that the plaintiff’s application is dependent on the outcome of the application by the defendant and for that reason I heard the defendant’s application only.

Background

3. The facts are not in dispute. They are that in proceedings MC No. 6 of 1999, Elijah Harro, one of the principals and Managing Director of the plaintiff filed a petition for a dissolution of his marriage to the defendant. The defendant cross-petitioned for a divorce, custody of some of the children and for distribution of the family’s assets.

4. In September 2000, the defendant applied for an injunction to restrain the plaintiff from disbursing a sum of about K500,000 received by one of the family companies being insurance payout for a shop that was destroyed by fire at Eriku, Lae City. The defendant, in support of the application, filed an undertaking as to damages. The terms of the undertaking are:

“THE RESPONDENT undertakes to submit to such orders (if any) as the Court may consider to...