N5296
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 317 OF 2003

BETWEEN:

RAROKI INVESTMENT LTD
Plaintiff
 
AND:

COUNCILLOR DOS ROLTINGA, COUNCILOR DULDONG TIKI & COUNCILOR JOHN OPA
First Defendants

AND:

SIMON NORUM and BARNABAS PUT OK
Second Defendants

AND:

MACOES (PNG) LIMITED
Third Defendant

AND:

BANK OF SOUTH PACIFIC LIMITED
Fourth Defendant

Mount Hagen: Poole, J
2013: 20th June

PRACTICE – Application to amend Originating Summons – Order 8 rule 50 National Court Rules – Exercise of court's discretion to determine real issue for trial – No fresh issue raised – Amendment Allowed.

Cases cited
Papua New Guinea Cases

Komboro George v MVIL [1993] PNGLR 477

Overseas Cases

Cropper v Smith (1884) 36 Ch D700.

Counsel

Plaintiff in Person
Mr Tenigi, for Defendant

20th June, 2013

1.	POOLE, J:	 Background:	 On 16 June 2003 the Plaintiff commenced an Action by Originating Summons seeking to restrain the First, Second and Third Defendants from taking any action which may impede the sale of Gumanch Coffee Plantation to the Plaintiff.

2.	This plantation had been offered for sale by the Fourth Defendant, as Mortgagee in possession, following breach by Piplika Development Corporation of the terms of a Mortgage. In November 2002 Macoes (PNG) Ltd submitted a tender to buy the plantation, but, after the close of tenders, the Bank indicated it would sell the plantation to the plaintiff for K1,800,000.00.

3.	The Plaintiff had difficulty in raising the required deposit of K300,000 and so the bank entertained an offer from Macoes (PNG) Ltd and accepted the offer and payment of K200,000 as deposit. The bank then permitted Macoes (PNG) Ltd to start work on the plantation.

4.	The Plaintiff then started this action in June 2003, filed and served a number of affidavits and, in March 2004, sought leave to amend the Summons to expand the scope of the relief it seeks by restraining the defendants, inter alia, from transferring title or making capital investments in the plantation.

5.	Eventually the Plaintiff filed the draft amended Summons in these terms:

1.	That the tender arrangement between the Third and Fourth Defendant on the mortgage Sale of Gumanch Coffee Plantation be reviewed by the Court as the conduct of the First, Second and Third Defendants in this whole Transaction was manifestly unfair to the plaintiff within the tenor and effect of the Fairness of Transactions Act 1993.

2.	 That the tender sale arrangements between the Third Defendant and Fourth Defendant and the resultant initial 10% Deposit of K200,000.00 paid by the Third Defendant in satisfaction of the tender requirements of the Fourth Defendant be declared invalid, null and void and of no legal effect pursuant to the meaning and spirit of the Fairness of Transactions Act, 1993.

3.	That to ensure the overall fairness of the whole mortgage sale transaction, the Plaintiff being the successful bidder of the tender sale of the Gumanch Coffee Estate be allowed to enter into a joint venture or financing arrangements with its proposed joint venture partner WR Carpenters Limited or any other investors to meet the Fourth Defendants tender requirements within 60 days from the date of the Order without any interference, threat, harassment or intimidation in any shape or way in the lawful process of the sale and disposal of the Gumanch Coffee Estate from the First, Second and Third Defendant, their servants or agents.

4.	Alternatively, the Fourth Defendant reimburse the Third Defendant's initial deposit of K200,000.00 and re-tender the Gumanch Coffee Estate by inviting for fresh tender offers on the mortgage sale.

5.	Any other Orders the Court deems fair and equitable under the circumstances to ensure the overall fairness of the whole transaction within the tenor and purpose of the Fairness of Transaction Act 1993. 

6.	Although the National Court rules contain no specific provisions relating to amendment of Originating Summons, Order 8 rule 50 gives a general power to amend "any document in the proceedings". As a general rule, amendments should be allowed if, without prejudice to other parties to the action, they do not raise fresh issues and they serve to classify the issue pleaded/or relief sought. (see Komboro George v MVIL [1993] PNGLR 477).

7.	Whether to grant Leave to amend is a matter which falls with the Court's discretion and this should be exercised in favour of the applicant if it forms the view that the amendment will aid in determining the real issues between the parties. Authority on this point, both in Papua New Guinea and elsewhere in the Common Law jurisdictions, is clear and too numerous to enumerate, starting, perhaps, with Cropper v Smith (1884) 36 Ch D700.

8.	In this case, the application relates to amendments which do not go to deciding the rights of the parties or crystallizing the issues between them. The proposed amendments seek no more than to raise an argument which could be raised at trial on the question of whether the plaintiff had a claim that its original tender was still valid and should be accepted.

9.	In the exercise of my discretion I allow the Plaintiff's Application to amend as the amendments do not work any real prejudice to the Defendants. This amendment must be in the form of the draft annexed to the affidavit of Paul Mawa filed on the 22nd March 2004 and is to be filed and served on the Defendants within 14 days of the date of this Order.

10.	The Formal Orders of the Court are:

1.	The Plaintiff has Leave to amend the relief sought in the Originating Summons filed on 16th June 2003 in terms of the draft annexed to the Affidavit of Paul Mawa filed on 22nd March 2004. The amended Summons is to be filed and served within 14 days of this Order.
 
2.	The parties are to file any further material on which they propose to rely at trial by close of business on 28th June 2013.

3.	The Defendant's costs of this Application are to be paid by the Plaintiff, such costs to be taxed if not agreed.

4.	The matter is listed for Directions on Monday 1st July 2013.

5.	Time is abridged to the time of sealing of these Orders by the Registrar which shall take place forthwith. 

______________________________________
P. M. Dowa Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Defendant