Unreported National Court Decisions
N969
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS. NO. 1091 OF 1990
PNG READY MIXED CONCRETE PTY LIMITED
PLAINTIFF
V
ELECTRICAL WHOLESALERS PTY LIMITED
SECOND DEFENDANT
AND JOSHUA KURUVILLA
DEFENDANT
Waigani
Brown J
20 December 1990
31 December 1990
4 January 1991
11 April 1991
INJUNCTIVE ORDERS - Mareva order originally obtained ex parte - Defendant out of jurisdiction - Goods the subject of the order except indictia of title also out of jurisdiction - No recent knowledge of plaintiff in whereabouts, state or condition of the goods - No apparent cause of action as pleaded.
The applicant appeared conditionally to argue jurisdiction and the right to this Court to make orders affecting property out of the State where notice of the proceedings had never been given the defendant who was a citizen of India and also out of the State. The facts appear sufficiently from the judgment. Ex parte orders improperly obtained should not be allowed to stand once it becomes apparent the plaintiff has not fulfilled the basic requirements necessary to maintain a cause of action such as filing a statement of claim which enunciates a cause supported by the short evidence read on the notice of motion for ex parte injunctive orders.
Held:
(1)      The plaintiff had failed to disclose a proper cause of action on the facts asserted in the affidavits in support of the motion for injunctive relief.
(2)      The plaintiff had failed to make any or due enquiry as to the present state, condition or whereabouts of the goods the subject of the order.
Cases Cited:
The following case were cited in the judgment:
CBS United Kingdom Limited v. Lamburt (1983) Ch.37 applied.
Notice of Motion: Further Judgment
This follows interim orders made on the 20 December 1990 when exparte orders given the plaintiff on the 12 October 1990 were extended for a period to allow the plaintiff time in which to file amended statements of claim and update particulars relating to the whereabouts of the goods of the defendant. The defendant entered a conditional appearance to move in the absence of jurisdiction and by virtue of error on the face of Court order in the first instance that the ex parte injunctive order should be discharged and the proceedings dismissed.
Counsel:
K Yawa, for the plaintiff
W Frizzel, for the defendant
Cur adv vult
11 April 1991
BROWN J:  On the 20 December 1990, I dealt with the motion of the defendant in relation to the conditional appearance by his Counsel, Mr Frizzel whereby he sought to have these preceedings and the ex parte injunctions dismissed and discharged. For reasons previously given, the ex parte order of the 12 October 1990 were extended until the 5 January 1991 and the plaintiff’s notice of motion returnable on the 11 December was stood over to the 5 January. On the 4 January (the 5 being a Saturday) with the consent of Counsel, the various motions were finally disposed of, when I made orders in terms dismissing the plaintiff’s writ of summons and discharging the ex parte orders of the 12 October last. I indicated then I would give written reasons and now do so.
The plaintiff by his Counsel, Mr Yawa, in support of his motion filed on the 12 December 1990 read the affidavit of Stuart Chandler (sworn on the 10 December last) and of Shiam Kattapuram. Those affidavits were previously read on the 20 December and there has been no further evidence tendered by the plaintiff since the date of my then order.
Mr Frizzel argued that the effect of order 2 and 3 of the orders of the 20 December effectively gave possession of the goods to the plaintiff before trial, whereas the purpose of a Mareva Order is to maintain the property of the defendant. In this case, the property of the defendant was likely to be dissipated as a result of the action by the Singapore port authorities in causing the container to be sold to pay shipping demurrage fees accruing. Mr Frizzel argued that the effect would be, on the strength of these affidavits touched on, to have title and possession of the container without trial, in the plaintiff.
The risk of injustice to the plaintiff at the time of the original order when it was made ex parte may then have appeared to exceed any risk of injustice to the defendant but the circumstances are now entirely different. I should also say that I must disagree with my learned brother Judge who gave the original ex parte order for the summons disclosed, on the face, no cause of action to support the effective seizure of a shipping container of the defendant.
Because of the risk of events in Singapore overtaking the conduct of these proceedings, the ex parte orders should be discharged. The plaintiff has failed to provide any up dated information as to the actual state of the goods in Singapore nor has it given any indication that it has made enquiries to satisfy the Court of its genuine concern as to maintenance of the asset. Yet the plaintiff in accordance with its notice of motion before the Court today, seeks an order for possession.
I was referred to the principles touched on in CBS United Kingdom Limited v. Lamburt (1983) ch.37 dealing with delivery up of goods before trial, principles with which I agree. Mr Frizzel cogently argued that the plaintiff had no evidence to satisfy this Court of the matters relevant before making such order. The plaintiff has the responsibility to arrange proper custody of the shipping container. There is no evidence by the plaintiff of the willingness or otherwise of any agent, receiver or solicitor for instance, in Singapore who is willing to carry out these responsibilities whether as trustees for the Court or as agent for the plaintiff.
The implication on a reading of the affidavits must be that the goods in the shipping container relate to personal property. In those circumstances, on the authority of CBS United Kingdom, Mr Frizzel argues that the plaintiff has not been genuine in its duty to the Court to warrant those orders sought by way of the plaintiff’s notice of motion today.
The goods which the plaintiffs seeks to distrain may be of no value and may become worthless to the plaintiff. There would be a loss however to the defendant and that is the reason for the plaintiff being required to give an undertaking as to damages. The plaintiff has brought no evidence to satisfy the Court of any facility to register an order of this Court in Singapore where control of the shipping container appears to have passed to the Singapore authority. In fact, the Court has no real knowledge of the present whereabouts of the container, its state, or condition.
Mr Yawa, for the plaintiff asked the Court to exercise a discretion. He considered he was not able to say what happened to the container. He referred me to the plaintiffs undertaking as to the damages. He further considered that the goods in the container would be less than the value of any judgment which he could expect to recover.
I note also that the plaintiff has not amended his pleadings as the Court directed when the plaintiff clearly faced the loss of its advantage gained by the original ex parte orders.
The plaintiff has failed to disclose all the relevant circumstances relating to the present position of the defendants container in Singapore. I accordingly ordered the ex parte injunctive orders of the 12 October 1990 be discharged except that part of those orders relating to the plaintiffs undertaking as to damages. Further I dismissal the plaintiffs motion of the 12 December 1990 and abridged time for the taking out of those orders. The first plaintiff is to pay the defendants costs of the motion which came before the Court on the 20 December last. The plaintiff had failed to substantiate reasons for the continuance of the ex parte injunctive orders despite the time allowed in which to do so and consequently the costs of the 20 December and 4 January shall follow the event.
The defendant shall have his costs.
Lawyer for the plaintiff: P Yawa
Lawyer for the defendant: W Frizzel