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Monier Ltd v In re NC Resourses Ltd [2014] PGNC 214; N5537 (27 January 2014)

N5537

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

In The Matter Of The Companies Act 1997

MP 15 OF 2013

BETWEEN:
MONIER LIMITED

AND:

IN THE MATTER OF NC RESOURCES LIMITED

Waigani: Davani, .J
2014: 15th, 27th January

COMPANY—in liquidation—application to strikeout proceedings (statutory demand and petition)—liquidation order made ex parte—proceedings not served on registered office of company—company and directors unaware of proceedings—whether applicant can proceed under National Court Rules rather than Companies Act—proceedings struck out pursuant to National Court Rules.

Facts

An order was made on 7th October 2013, ex parte, to wind up NC Resources Limited on an allegation that it had failed to respond to a statutory demand for payment of a debt of K283, 561.78. On 14th October 2013 NC Resources Ltd paid K283, 561.78 alleged to be the total debt owing to the petitioning creditor, Monier Ltd. The liquidator returned the cheques as a preferential payment. The directors of NC Resources Ltd then applied to set aside the ex parte order as an abuse of process of the Court, under the National Court Rules, not the Companies Act, because the statutory demand and the petition were not served on the registered office of the company.

HELD

1. The directors of a company in liquidation retain residual powers to challenge the liquidation, at [30];
2. The liquidator's powers do not include a power to challenge the liquidation, at [31-33];
3. Despite the fact that a liquidator has been appointed, a residual power of appeal remains vested in the Directors. [at 33];
4. The Statutory Demand and the Petition were not duly served at the registered office of the company. At [82 & 90];
5. The Statutory Demand and the Petition are irregular, there is no cause of action on foot, the whole proceedings must be dismissed, at [95];
6. The Petitioning creditor and the Liquidator to pay the costs of the company and its directors, at [96].
   

Counsel:

I. Mukwesipu, for the Petitioning Creditor, Monier Limited
I. Shepherd, for James Kruse, the liquidator
R. Bradshaw, for Director, G.N Constantinou
A. Baniyamai, for Director, B. Geita

DECISION

27th January, 2014

1. DAVANI .J: Before the Court for hearing is Notice of Motion filed on 20thDecember, 2013, by Williams Attorneys. This motion seeks to set aside and discharge the National Court's ex parte order of 7th October, 2013, which order effectively placed NC Resources Limited into liquidation. The order also appointed Mr James Kruse as liquidator under Section 291 (2) (c) and 291 (3) (a) of the Companies Act 1997, in relation to the winding up of NC Resources Limited ('NC'). I heard the application because the Judge who made the ex parte orders was not available considering it is the Court vacation. (0.4 R.49 (19) (4) (2) of the National Court Rules).
   
2. I will set out in full the orders sought in that motion for its full force and effect.
   

3. Mr Baniyamai appears for director of NC Resources Limited, Ms Beatrice Geita. Mr Bradshaw appears for Mr George Constantinou, another director of NC Resources Limited. Mr Baniyamai moved the application, which was supported by Mr Bradshaw. Mr Shepherd appears for the Liquidator Mr James Kruse, and Mr Mukwesipu appears for the Petitioning Creditor. They both opposed the application.

Background

4. Before I consider the application, it is necessary that I set out the background to this liquidation, more particularly, what triggered the filing of the Winding-Up Petition, now before the Court.
   
5. The Petition was filed on 30th August, 2013 for and on behalf of Monier Limited, the Petitioning Creditor. The Petition filed by Gadens Lawyers, was supported by affidavit verifying Petition and sworn by Herman Hengeveld sworn and filed on 30th August, 2013. He swore the affidavit in his capacity as the Financial Controller for Monier Limited.
   
6. The Petition states that on 3rd July, 2013, a Statutory demand was served on NC Resource Limited's registered office pursuant to s. 337 (2) (b) of the Companies Act. The Statutory Demand requested payment from NC Resources Limited of outstanding debt in the sum of K283, 561.78 ('the debt').
   
7. The Petition pleads further that after receipt of the Statutory Demand, the NC Resources Limited failed to pay the debt and as a result, Monier Limited now seeks to have NC Resources Limited wound up because it is unable to pay the debt.
   
8. The Petition also pleads for the appointment of James Kruse as Liquidator, to be done in accordance with s. 291 (2) (c) and 291 (3) (a) of the Companies Act 1997.
9. On 24th September, 2013, Gadens Lawyers purportedly served the Petition upon NC Resources Limited's registered office. This is deposed to in Rocky Madi's Affidavit of Service sworn on and filed on 30th September, 2013 by Gadens Lawyers.
   
10. On 7th October, 2013, NC Resources Ltd was placed into Liquidation by an ex parte order of the National Court, Waigani.
    
11. On 14th October, 2013, NC Resources Ltd paid Monier Ltd monies owing to it of K233, 561.78. This is deposed to in the affidavit of George N. Constantinou sworn on 21st October, 2013 and filed on 22nd October, 2013 by Bradshaw Lawyers.
    
12. On 15th October, 2013, Bradshaw Lawyers filed Notice of Motion seeking orders to terminate the Liquidation.
    
13. On 22nd October, 2013, Williams Attorneys filed Notice of Motion seeking the same orders, albeit to terminate the Liquidation.
    
14. On 20th December, 2013, Williams Attorneys Lawyers filed Notice of Motion, which is now before me for hearing and which motions and supporting affidavits were served upon Gadens Lawyers, Ashurst Lawyers and Bradshaw Lawyers on 20th December, 2014 (see affidavit of service of Ronald Werner sworn and filed on 23rd October, 2013 by Williams Attorneys).
    
15. Both Mr Baniyamai and Mr Bradshaw did not submit on what has become of their respective motions filed on 15th and 22nd October, 2013. As far as I am aware, the only motion before me and which all counsel made submissions on is the motion filed on 20th December, 2013 by Williams Attorneys. I am aware that the fate of this motion is addressed in Mr Constantinou's affidavit which I will refer to and discuss in these reasons, later below.
    

The Application

16. I set out in full the terms of the Notice of Motion now before me filed by Williams Attorneys on 20th December, 2013, which reads;
    

"1. Leave be granted by this Honourable Court to dispense with the requirements for service under the rules of the Court pursuant to Order 1 Rule 7 of the National Court Rules.

2. The ex parte Order of this Court dated 7th October, 2013 be set aside and discharged for;

(i) Abuse of the process the Court pursuant to Order 8 Rule 27(c) and Order 12 Rules 40 (1) (c) pursuant to Order 12 rule 40 (1) (c) of the National Court Rules and;

(ii) for want of proper service on NC Resources Limited contrary to section 431 of the Companies Act, and;

(iii) for denial of NC Resources Limited's right to natural justice pursuant to section 59 of the Constitution.

3. Consequential to the above order, that the whole of the proceedings be dismissed for disclosing no reasonable cause of action pursuant to Order 8 Rule 27(1) (a) and Order 12 Rule 40 (1) (a) of the National Court Rules.

4. Alternatively, that pending the determination of the issues raised under paragraphs 2 and 3 above, an order in the interim staying the orders of this honourable court dated 7th of October, 2013 pursuant to Order 14 Rules 9 and 10 of the National Court Rules.

4. Legal Costs.

6. Any other or further orders the Court deems fit.

7. Time for entry of judgment be abridged to the time of settlement by the Registrar to take place forthwith."

17. Mr Bradshaw and Mr Baniyamai both have made it emphatically clear and are adamant in their submissions that they are not applying under s. 300 of the Companies Act, rather, they are moving the application pursuant to Order 8 Rule 27 (c) and Order 12 Rule 40 (1) (c), Order 8, Rule 27 (1) (a) and Order 12 Rule 40 (1) (a) of the National Court Rules, an application to set aside for irregular service. They also, are not seeking the alternative orders sought in par. 4 of the Notice of Motion, which is for a stay of the liquidation.
    
18. They referred to and relied on several cases in this jurisdiction where, because a Writ of Summons was not properly served or through some other procedural slip, the proceedings were rendered a nullity or irregular which warranted either the setting aside of the order or the dismissal of proceedings. (Fraser v. MVIT (1992) N1089); Paul Marinda v. the State (1991) N1026; John Bokin v. the State (2001) N2111).
    
19. The basis of the application to set aside is that because the Statutory Demand and the Petition were not served on the Registered Office of NC Resources Limited, that the ex parte order of 7th October, 2013 is an irregularly entered judgment and must be set aside as of right ex dibito justitae and be discharged.
    
20. Can the Court set aside and discharge the ex parte Order of 7th October, 2013 considering the liquidation of the NC Resources Limited as commenced?
    
21. Before I discuss and refer to the applicant's grounds for the setting aside of this orders, it is legally proper to firstly clarify whether a company in liquidation falls under the same category as an ordinary individual or an operating company and to also discuss whether it is legally viable for a company in liquidation to adopt the processes available to "normal" applicants and individuals applying for a set aside as opposed to a company in the process of being liquidated and whether these companies ought to be applying under either Sections 297 and/or 300 of the Companies Act. Before I embark on these discussions, it is necessary that, I set out, the relevant provisions of the Companies Act, which are below;
    

1. Provisions of the Companies Act
   

22. Section 338 of the Companies Act provides for the setting aside of statutory demands. It reads as follows;
    

"S. 338 COURT MAY SET ASIDE STATUTORY DEMAND

(1) The Court may, on the application of the company, set aside a statutory demand.

(2) The application shall be made, and served on the creditor, within one month of the date of service of the demand.

(3) No extension of time may be given for making or serving an application to have a statutory demand set aside, but, at the hearing of the application, the Court may extend the time for compliance with the statutory demand.

(4) The Court may grant an application to set aside a statutory demand where it is satisfied that-

(a) there is a substantial dispute whether or not the debt is owing or is due; or

(b) the company appears to have a counterclaim, set-off, or cross-demand and the amount specified in the demand less the amount of the counterclaim, set-off, or cross-demand is less than the prescribed amount; or

(c) the demand ought to be set aside on other grounds.

(5) A demand shall not be set aside by reason only of a defect or irregularity unless the Court considers that substantial injustice would be caused if it were not set aside.

(6) In Subsection (5), "defect" includes an immaterial misstatement of the amount due to the creditor and an immaterial misdescription of the debt referred to in the demand.

(7) An order under this section may be made subject to conditions."

23. Section 339 of the Companies Act provides for the Court's additional powers on an application to set aside a Statutory Demand. It reads;
    

"339. ADDITIONAL POWERS OF COURT ON APPLICATION TO SET ASIDE STATUTORY DEMAND

(1) Where, on the hearing of an application under Section 338, the Court is satisfied that there is a debt due by the company to the creditor that is not the subject of a substantial dispute, or is not subject to a counterclaim, set-off, or cross-demand, the Court may-

(a) order the company to pay the debt within a specified period and that, in default of payment, the creditor may make an application to put the company into liquidation; or

(b) dismiss the application and forthwith make an order under Section 291 (3) putting the company into liquidation, on the grounds that the company is unable to pay its debts as they become due in the ordinary course of business.

(2) For the purposes of the hearing of an application to put the company into liquidation pursuant to an order made under Subsection (1) (a), the company is presumed to be unable to pay its debts as they become due in the ordinary course of business where it failed to pay the debt within the specified period."

24. Section 300 of the Companies Act is the provision on termination on liquidation. It reads;
    

"300. COURT MAY TERMINATE LIQUIDATION

(1) The Court may, at any time after the appointment of a liquidator of a company, if it is satisfied that it is just and equitable to do so, make an order terminating the liquidation of the company.

(2) An application under this section may be made by the liquidator, or a director or shareholder of the company, or any other entitled person, or a creditor of the company, or the Registrar.

(3) The Court may require the liquidator of the company to furnish a report to the Court with respect to any facts or matters relevant to the application.

(4) The Court may, on making an order under Subsection (1), or at any time thereafter, make such order as it thinks fit in connection with the termination of the liquidation.

(5) Where the Court makes an order under this section, the person who applied for the order shall, within one month after the order was made, submit a certified copy of the order to the Registrar for registration.

(6) Where the Court makes an order under Subsection (1) the company ceases to be in liquidation and the liquidator ceases to hold office with effect on and from the making of the order or such other date as may be specified in the order.

(7) Every person who fails to comply with Subsection (5) commits an offence and is liable on conviction to the penalty set out in Section 413 (2)."

25. Section 297 of the Companies Act relates to the Court's power to stay or restrain proceedings against the company. It reads;
    

"297. POWER TO STAY OR RESTRAIN CERTAIN PROCEEDINGS AGAINST COMPANY

At any time after the making of an application to the Court under Section 291 (2) (c) to appoint a liquidator of a company and before a liquidator is appointed, the company or any creditor or shareholder of the company may-

(a) in the case of any application or proceeding against the company that is pending in the Court or the Supreme Court, apply to the Court or the Supreme Court, as the case may be, for a stay of the application or proceeding; or

(b) in the case of any other application or proceeding pending against the company in any court or tribunal, apply to the Court to restrain the application or proceeding, and the Court or the Supreme Court, as the case may be, may stay or restrain the application or proceeding on such terms and conditions as it thinks fit."

26. Section 298 of the Companies Act provides for the status of a company upon the commencement of liquidation. It reads;
    

"298. EFFECT OF COMMENCEMENT OF LIQUIDATION

(1) With effect from the commencement of the liquidation of a company-

(a) the liquidator has custody and control of the company's assets; and

(b) the directors remain in office but cease to have powers, functions, or duties other than those required or permitted to be exercised by this Part; and

(c) Unless the liquidator agrees or the Court orders otherwise, a person shall not –

(i) commence or continue legal proceedings against the company or in relation to its property; or

(ii) exercise or enforce, or continue to exercise or enforce, a right or remedy over or against the property of the company; and

(d) unless the Court orders otherwise, a share in the company shall not be transferred; and

(e) an alteration shall not be made to the rights or liabilities of a shareholder of the company; and

(f) a shareholder shall not exercise a power under the constitution of the company or this Act except for the purposes of this Part; and

(g) the constitution of the company shall not be altered.

(2) Subsection (1) does not affect the right of a secured creditor, subject to Section 353, to take possession of, and realize or otherwise deal with, property of the company over which that creditor has a charge."

II. Previous motions filed

a. Firstly, does NC have the capacity to make this application, considering it is presently in liquidation?

27. I raise the issue of whether a company in liquidation, as in this case, could file court proceedings and also whether the correct remedy to pursue is a termination of liquidation under the Companies Act rather than a set aside under the National Court Rules. Messrs Bradshaw and Baniyamai, acknowledged my comments and Section 298 of the Companies Act, but nonetheless, maintained their submissions that notwithstanding that NC Resources Limited is in liquidation, that the Court must pay particular attention to the fact that the liquidation process was irregularly commenced because service had not been properly effected upon the registered office of NC Resources Limited.
    
28. The Supreme Court case Quan Resources Pty Ltd (In Liquidaion) v. Australian New Zealand Banking Group (PNG) Ltd (1996) SC 590 dated 10th July, 1996, is a case on point.
    
29. Supreme Court bench comprising Amet CJ, Kapi DCJ and Los .J considered an appeal against the National Courts order refusing to set aside a winding up order and appointment of a liquidator. The respondent objected to the competency of the appeal, one of its arguments being that Quan Resources Pty Ltd could not appeal in its name and style because it was in liquidation. The Supreme Court rejected that argument holding as follows;
    

"a liquidator cannot assume to have any power to challenge a winding-up order when the validity of the order that appointed him is under challenge. In our view the power to challenge a winding-up order is a residuary power of the company which in the first place is used through the Board to instruct lawyers to oppose a petition or wind-up order. If a winding-up order is made over the opposition, the company is entitled to appeal against that order." (pg. 13)(my emphasis)

30. Section 298 of the Companies Act (see above), provides for what occurs and the effect of liquidation. However, Quan Resources (supra) dispels any doubts that a company in liquidation may have when it seeks to challenge the liquidation. Apart from the other sub-provisions of Section 298 (1), section 298 (1) (a) is specific, that upon the commencement of liquidation, the liquidator has custody and control of the company's assets. Section 298 is the equivalent of the then Section 253 which is discussed in Quan Resources (supra). In relation to the a Director's powers after a liquidation, the Supreme Court in Quan Resources (supra) said;
    

"We understand the status of a director in a company which is winding-up. He may lose his power when a winding up order is made but he does not necessarily lose his office: see Country Traders Distributors (1974) 2 NSWLR 135. On this state of the law the company may not lose out if it cannot appeal against a winding-up order; it can benefit from an appeal by a director if the grounds of such an appeal are relevant to the wishes of the company. We however question why a company itself cannot appeal against a winding-up order soon or immediately after that order has been made where for any reason the liquidator is put in a situation where he cannot act on behalf of the company."(my emphasis)

31. The Supreme Court said further;
    

"The numerous duties and powers that are listed in s. 253 (1) and (2) show that a liquidator assumes a wide power but in our view all these powers are limited and related to winding-up of a company consistent with an order of the court. We are not aware of any decided cases in our jurisdiction that has summarised the powers of liquidators. But there is a New South Wales case that succinctly summarises the principal duties of a liquidator for the purpose of our reasoning. That case is Re Patridge (1961) SR (NSW) 622. In that case the Court said:

"Speaking generally, the liquidator's principal duties are to take possession of and protect the assets, to make lists of contributories, to have disputed case adjudicated upon, to realise assets and to apply the proceeds in due course of administration amongst the creditors and contributors."

It is clear from all the duties listed in s. 253 of the Act that all the powers have to do with winding up but no power to defend a company from winding up. That is also true of the powers in s. 294 of the Act. Section 253 (2) may give an impression that the liquidator has sole power to appeal because Clause (a) says the liquidator may "bring or defend an action or other legal proceeding in the name and on behalf of the company". But read together with the s. 253 (1) it is clear the power is limited to winding up of a company. Clause (a) says the liquidator may "carry on the business of the company so far as is necessary for the beneficial winding up of the company" (emphasis added).

The apparent reason for concluding that the liqiudator's powers are limited to actions necessary for winding-up a company is because a liquidator cannot challenge an order for winding up when he has been appointed by the same order or as a consequence of that order. He has a conflict of interest.

The challenge is directly against the validity of the order that appointed him." (pgs 8, 9, 10) (my emphasis)

32. The Supreme Court said further at page 12;
    

"In 1988 the Supreme Court of Northern Territory applied the same principles in Arafura Finance Corporation Pty Ltd v Kooba Pty Ltd (No 2) (1988) ACLC 200. At page 202 Muirhead J said:

"The authorities suggest an application for a stay may properly be made upon the motion of the directors exercising their residuary power, despite a winding up order. (See Re Union Accident Insurance Co Ltd (1972) 1 All ER 1105 per Plowman J at p.1113.) Re Diamond Fuel Co [1879] UKLawRpCh 322; (1879) 13 Ch D 400 is authority for the proposition that despite the fact a liquidator has been appointed, a residual power of appeal remains vested in the directors. This decision is also some authority for the proposition that a company appealing against a winding up order may well be directed to provide security for costs, a matter adverted to by Mr Riley in his submissions. (See also Robert H Barber & Co Ltd & Anor v Simon [1914] HCA 69; (1914) 19 CLR 24 at p. 28)." After reading and considering the provisions of the Companies Act relating to the powers of liquidators, we are convinced that the powers do not include a power to challenge a winding-up order"(my emphasis).

33. Clearly, NC is within its rights to make this application because according to Quan Resources (supra), the liquidator's powers do not include a power to challenge a winding-up order.
    
34. Can the ex parte orders be set aside?
    
35. I have taken the opportunity to thoroughly peruse the court file to more particularly, understand why the applicants did not pursue the motions seeking termination of the liquidation under Section. 300 of the Companies Act.
    
36. Upon perusal of the affidavit of Beatrice Geita sworn on 21st October, 2013 and filed on 22nd October, 2013 together with the affidavit of George N. Constantinou sworn on 21st October, 2013 and filed on 22nd October, both filed by Williams Attorneys, I note the following;
    

i. that Beatrice Geita, Director and Company Secretary of NC Resources, became aware of this proceedings on Tuesday, 15th October, 2013 when she read an advertisement in the National Newspaper of the court order of 7th October, 2013, where the Liquidator had taken over the management and control of NC Resources Limited including all accounts and finances. (Par. 5 of Beatrice Geita's affidavit)

ii. As at 31st December, 2012, NC's total assets were K15,970,982.00 and its net assets were worth K2,488,993.00. (par. 20 of George Constantinou's affidavit)

iii. Although the Petition was filed on 30th August, 2013, NC paid the outstanding debt of K283,561.78 on 14th October, 2013, (par. 17 and 18 of George Constantinou's affidavit), but which cheque was returned by the Liquidator who advised that this was a preferential payment

iv. NC will suffer adversely if liquidation continues because it has many major works contracts worth tens of millions of kina. If the liquidation continues, this will render NC incapable of operating its business. These major current contracts for NC are set out in George Constantinou's affidavit, some of which are;

- NCDC's project at Korobosea Drive, worth K4, 962,941.50

- NCDC's contract at Foster Street, worth K402, 538.40

- National Airport Corporation's Wapenamanda Airport fencing worth K5, 341,814.48

- China Railway Construction and Engineering laying of Pacific Games Village Heights worth K2, 293,125.90.

vi. There is a risk that NC's secured creditors namely Credit Corporation Limited, Kina Finance Limited and Bank of South Pacific Limited may invoke their rights under the respective loan agreement thereby placing NC under more serious financial predicament. Credit Corporation Limited and Kina Finance Limited have expressed their confidence in George Constantinou and have directed that he pursue the termination of the liquidation immediately to then resume control and management of NC. A copy of a letter from Kina Finance Limited dated 17th October, 2013 is attached to George Constantinou's affidavit as annexure 'D' and reads in part;

"there is a good business rapport between Kina Finance and NC Resource on the ground that the latter is committed to their business and stays responsive and communicative with us as their business partner."

This letter is signed by Michael Ting, deputy General Manager of Kina Finance (par. 27 and 28 of George Constantinou's affidavit).

37. The affidavit of George Constantinou sworn and filed on 9th January, 2014 deposes in part;
    

(i) the application for termination of liquidation was adjourned to allow parties to discuss settlement (par. 3)

(ii) a meeting was held at NC's project office at 16 mile, Sogeri on 8th November, 2013 between "all parties including the liquidator" (par. 4)

(iii) at the meeting it was resolved between the parties that Mr Constantinou was to "make provision for all the other creditors", inform the liquidator after which liquidation would be terminated by consent of the parties (par. 5 of the affidavit).

(iv) since then, Mr Constantinou has had numerous meetings and attendances with NC Resource Limited's major creditors who are Kina Finance and Credit Corporation, InterOil, IRC, BSP, PNG Concrete Aggragate, amongst others (par. 6 of the affidavit)

(v) since the liquidation, the liquidator has collected more than K2 million but has not provided any reports on the liquidation and settlement with the creditors. (par. 10) (vi) of the affidavit).

(vi) as at 1st January, 2014, NC has lost a contract with the State worth K5.3 million for Wapenamanda Airport fencing because of the shutting down of its operations and that the liquidator is in the process of selling the company's assets. (par. 10 (ix) of the affidavit).

(vii) that NC is insolvent because had it not been for the improper service of the statutory demand and the Petition, that NC would not be in liquidation (par. 11 of the affidavit)

(viii) that if the liquidator had "kept to the understanding reached between the parties at the meeting in November, 2013, liquidation could have been terminated way back in November or December, 2013". (par. 12 of the affidavit)

38. The liquidator has not filed any affidavits in response to the several affidavits that I have referred to. It means therefore that Mr Constantinou's statements in relation to his meeting with the liquidator and other creditors and the fact that there was agreement for an arrangement to be made and for liquidation to be terminated, remains good evidence.
    
39. Although, I will not consider the motions to terminate because they were not moved and argued before me, that is not to say that the affidavits filed in support of the applications will not be read by the Court. I will do so and will rely on these affidavits to assist me in making a decision that I consider to be just and fair under the circumstances because it is generally the case that when a company is placed into liquidation, it is because that company is unable to pay its debts.
    
40. And that is where Mr Bradshaw's submissions are very relevant, that because the Statutory Demand and the Petition were not served upon NC's registered office/address, that the winding up should be set aside as of right because the liquidation is irregular.
    

III. Setting aside a liquidation

41. Mr Bradshaw and Mr Baniyamai's submissions are that the liquidation must be set aside, as of right. With the exception of s.431 of the Companies Act, no other provisions of that act are relied on in the set aside application. However, both Counsels rely on the various provisions referred to above, of the National Court Rules.
    
42. By invoking the Court's powers under the setting aside and/or dismissal provisions of the National Court Rules, would that not be seen to be an abuse of the Court's process?
    
43. This question ought to be asked because the Companies Act provides for what should occur if a debtor is aggrieved by the Winding-up. However, the Companies Act does not state that a person aggrieved by the Liquidation cannot or should not have recourse to other remedies. I have not heard submissions from the Liquidator's lawyer and the Petitioning Creditor's lawyer that this process is not available to NC Resources Limited. I say this also, noting that both counsel for the Petitioning Creditor and the Liquidator were very much aware that such an application would be moved before me and that it would be of great assistance to the Court if proper legal submissions were made on the proprietary of an application to set aside for irregularity in liquidation. Without the benefit of those submissions, I will rely very much on the present normal practice before the Courts, supported by extensive case law, that where companies are involved, service must be properly effected on the company's current registered office, as in the requirement under S.431 of the Companies Act.
    
44. Submissions by Mr Bradshaw and Mr Baniyamai as I have seen, are that the Statutory Demand and Petition were not properly served and which resulted in the NC and its directors not being aware that the liquidation process had commenced, until after the liquidation was advertised in the newspapers.
    

a. Service of the Statutory Demand and Petition

45. In the affidavit of Tau Uamaki sworn on 29th August, 2013 and filed on 30th August, 2013 by Gadens Lawyers, he deposes as follows;
    

"1. I am a clerk in the employ of Gadens Lawyers, lawyer for the Petitioning Creditor;

2. On 13th June, 2013, Gadens obtained a company extract of NC Resources Limited at the Companies Office, Investment Promotion Authority.

3. A true copy of the company extract of NC Resource Limited is annexed hereto and marked "TU 1".

4. According to the company extract, the registered office and address for service of NC Resource Limited is:

Portion 749, Sogeri, Hiri, Central Province, Papua New Guinea.

5. On 3rd July, 2013, I attended at the registered office of NC Resource Limited at Portion 749, 16 Mile, Sogeri Road, Central Province and served the petitioner's Statutory Demand dated 1st July, 2013. The Statutory Demand was served under cover of a letter dated 3rd July, 2013.

6. Annexed hereto and marked as indicated are true copies of the following;

"TU 2" – is a true copy of the Creditors Statutory Demand dated 1st July, 2013.

"TU 3" – Gadens letter dated 3rd July, 2013 with acknowledgment of receipt by the Company Accountant of NC Resource Limited"(my emphasis).

46. I discuss the relevance of the emphasized parts, later below.
    
47. Annexure 'TU1' is a copy of the company extract of NC Resource Limited. This extract, dated as at 13th June, 2013, states that the registered of NC Resource Limited is Portion 749, Sogeri Hiri, Central Province, Papua New Guinea.
    
48. Annexure 'TU2' is the creditor's statutory demand dated 1st July, 2013 which details an invoice that was issued to NC Resource Limited and that remained outstanding as at the date of the statutory demand, a total amount of K283,561.78, being debt due and owing to Monier Limited.
    
49. A copy of the creditor's statutory demand which is attached as an attachment to Tau Uamaki's affidavit, has on the last page, the signature of the director or secretary of the creditor. A clause at the bottom of the Creditor's Statutory Demand reads;
    

"This notice must be signed by the Creditor, or where the creditor is a company, a director or secretary of that company."

50. I note further that the person who signed that statutory demand as the creditor is "Sir Theo G. Constantinou" and dated 1st July, 2013. I may be wrong but would he not be related to George Nicholas Constantinou, the Director of NC Resources Limited?
    
51. I have not heard any submissions on that but it is obvious they are related. None of the lawyers pointed this out to me in the Court. Clearly, I have not heard everything and it may be that the parties, more particularly the Petitioning Creditor and the Liquidator, have deliberately held back some very crucial facts from this Court.
    
52. Mr Bradshaw and Mr Baniyamai referred me to several affidavits in support of their submissions that the statutory demand and petition were served on a different property and not upon Portion 749.
    
53. The company extract before me states the principle place of business and registered address as;
    

"Portion 749, Sogeri Road, Hiri Central Province, Papua New Guinea"

54. It does not state whether portion 749 is located at 18 mile or 16 mile. I note that the properties Mr Bradshaw and Mr Baniyamai are referring me to are separate and different properties which are located at 16 mile and 18 mile.
    
55. In Mr George Nicholas Constantinou's affidavit sworn on 19th December, 2013 and filed on 20th December, 2013, he deposes the following;
    
    1. That he is the sole shareholder and one of the directors of NC Resources Limited. He also deposes that he is the Managing Director of NC Resources Limited. That he was responsible for the overall management and control of the company until the Company was placed into liquidation by order of the Court.
       
    2. That the registered office of NC Resources Limited is located at Portion 749, 18 mile, Sogeri road, Port Moresby.
       

c. That portion 749 remains the only registered office for NC and is its principal place of business.

d. That because of the nature of its work as a construction company, that NC Resources sets up site offices from time to time in and around the city or the site at which the work is being conducted.

e. That management and administration of all their work is conducted at those work sites and those offices are manned until the completion of project when these site offices are then demobilized and moved to the next project site.

f. That because NC Resources Limited is a civil construction company, that its method of operations is very mobile with the exception of the registered office and main workshop which remains fixed at portions 749, 18 mile, Sogeri road where all process on the company are to be served.

g. That Peter Koai, the person authorized to accept service of the documents at the registered office of NC Resources Limited, never received any documents on 3rd July, 2013 and 24th September, 2013, the dates the Petitioning Creditors' lawyers claim to have served the Statutory Demand and Petition respectively.

h. that he is aware that he was not served with any documents in relation to the winding –up until after the winding-up order had been obtained and when the liquidator moved in to take over NC Resources Limted.

i. it was at that time that he then spoke to his staff who informed him that nobody had attended at Portion 749, but had attended at Portion 2173 located at 16 mile along Sogeri road. The security guards had informed him that lawyers from Gadens Lawyers were there and that after necessary security checks, were allowed entry into the project site office.

i. that portion 2173 is owned by Margaret Noga and is currently being developed after some arrangements were entered into with NC Properties Limited, which is a separate entity from NC Resources Limited. That portion 2173 16 mile is not the same as Portion 749, 18 mile. A true copy of the State Lease over Portion 2173 is attached to that affidavit.

j. that the Statutory Demand and Petition may have been served upon Portion 2173 which was why it was not brought to his attention until after the liquidation orders were advertised.

56. The affidavit of Leith Goga sworn on 19th December, 2013 and filed on 20th December, 2013 by Williams Attorneys, deposes the following;
    

a. he is a security guard employed by NC located at project site portion 2173, 16 mile, Sogeri road, Central Province.

b. that as a security guard, he is always stationed at the gate to Portion 2173 at all times and that it is part of his duty to check and inspect visitors coming onto the project site. He finds out the nature of their business and the reasons for their attendance at the project site including the project site office. He asks them which employee or person they wish to see, he informs those persons and then gives the visitor security clearance before allowing them entry onto the project site.

c. He recalls that during the months of July to October, 2013, that on a couple of occasions, he did attend on representatives from the law firm Gadens Lawyers at the gate and did allow them entry into the project site Portion 2173, 16 mile, Sogeri road.

57. The affidavit of Steven Warite sworn on 19th December, 2013 and filed on 20th December, 2013 by Williams Attorneys deposes the following;
    
    1. he is employed by NC as a security guard stationed at portion 749, 18 mile, Sogeri road, Central Province and is there at all times, when on duty.
       

b. that as a security guard, he is stationed at the gate to portion 749 at all times. His duties include ensuring that the premises are well secured and safe and that the properties and employees of NC are protected. It is also part of his duties to check and give security clearance to visitors entering the premises.

c. that when he attends to visitors at the gate, he asks for their names and identity and enquires about the nature of their business at the premises. He also enquires on who these people are visiting after which he will then allow them entry into the premises.

d. he recalls that during the months of July to October 2013 at Portion 749, 18 mile, that he had never seen or received visitor's from Gadens Lawyers or any other persons seeking to serve Court documents.

58. The affidavit of Tom Goga sworn on 19th December, 2013 and filed on 20th December 2013 by Williams Attorneys deposes the following;
    

a. that he is employed by NC as a senior security guard stationed at NC's principal place of business at portion 749, 18 mile, Sogeri road, Central Province.

b. that as part of his duties, he is stationed at the gate to portion 749 at all times. His duty is to ensure that the premises are well secured and safe. He is also required to check and inspect visitors entering the premises, to find out the nature of their business at the premises and then to give the visitors the required security clearance into the premises.

2. he requests from these visitors, their names and identity, enquires about the nature of their business at the premises, finds out who they want to see and upon being satisfied, he then allows them entry onto the premises.
   

d. he recalls to the best of his knowledge, that he had never seen or received anybody from Gadens Lawyers at Portion 749, during the periods July to October, 2013, more particularly, persons attending at the premises to serve Court documents.

59. The affidavit of Peter Koae sworn on 19th December, 2013 and filed on 20th December, 2013, by Williams Attorney, deposes to the following;
    

a. that he is employed by NC as a senior procurement officer.

b. As the procurement officer, he is responsible for all of NC's procurement needs and as such, is always stationed at portion 749, 18 mile, Sogeri road, Central Province.

c. He is authorized to receive correspondence, documents or processes served on NC or upon its Directors, at that property. These documents will include Court documents.

d. He deposes that had he been informed, that liquidation related Court documents were to be served at the premises by persons from Gadens Lawyers, that after receipt, he would have then immediately referred these to Directors Nicholas Constantinou and/or Beatrice Geita.

60. The affidavit of John Malabag, sworn on 19th December, 2013 and filed on 20th December, 2013 by Williams Attorneys, deposes to the following;
    

a. he is employed by NC as the Workshop Manager.

b. he is stationed at all times at portion 749, 18 mile, Sogeri road, Central Province.

100. that apart from the security manager, he is the most senior employee with NC and the assigned custodian of NCs workshop and office at the premises,
     

d. that he is also in charge of the workshop and is always the first person to be informed by security guards of any attendances by persons at the company premises at Portion 749, 18 mile.

e. if the nature of work by the persons attending upon the premises, is to do with NC's workshop, machinery, etc, then he deals with them and where their business is management, financial or administrative in nature, then they are referred to Mr Nicholas Constantinou and/or Ms. Beatrice Geita.

f. that he has been constantly at work during July to October, 2013 between the hours of 8am to 5pm every week and did not receive anybody from Gadens Lawyers nor has he sighted documents including Court document concerning NC. That if persons from Gadens Lawyers had attended at the premises, that he would have immediately referred them to the above-named directors.

61. The affidavit of Leith Goga sworn on 19th December, 2013 and filed on 20th December, 2013, by Williams Attorneys, deposes to the following;
    

a. that he is employed by NC as a security guard stationed at project site located at Portion 2173, 16 Mile, Sogeri Road, Central Province.

b. that he is stationed at portion 2173 at all times and as part of his duties, checks and inspects visitor's entering the project site, finds out the nature of their business, the reasons for their attendance at the project site including the project site office, finds out who the visitor/s wish to see and then gives them security clearance for their entry into the project site.

c. that in or about the months of July to October, 2013, that on "a couple of occasions", he did "attend on representatives from the law firm Gadens Lawyers at the gate and allowed them entry to the project site", located at "Portion 2173, 16 mile, Sogeri Road". (par. 3)

IV. The Law on Setting Aside

62. The application to wind up was made ex parte. Ms Tepu of Gadens Lawyers appeared for the Petitioning Creditor. According to the endorsement on the Court file, orders made were in accordance with paragraphs 6(a) to (e) of the Petition.
    
63. Mr Bradshaw and Mr Baniyamai's submissions are basically that the wind up orders of 7th October, 2013 be set aside and discharged because they are irregular.
    
64. On review of the affidavits referred to above, together with the extract from the company registry, it is clear that the property is described only as Portion 749. It does not state whether it is located at 16 mile or 18 mile.
    
65. However, it is undisputed that portion 749 is located at 18 mile. This is confirmed in the affidavits of Nicholas Constantinou and the security guards and other workers, affidavits filed by Williams Attorneys, which I reviewed above.
    
66. The affidavit of service relied on by Gadens Lawyers when moving the Petition to wind up is that of Rocky Madi sworn on 30th September, 2013 and filed on the same date by Gadens Lawyers. He deposes that he served the Petition and supporting affidavits at "Portion 749 16 mile, Sogeri road, Hiri Central Province". This obviously is incorrect because Portion 749, is located at 18 mile, an undisputed fact.
    
67. Portion 2173 which is located at 16 mile, is NC's project office and is the venue of a development which NC had been contracted to develop. It is 2 kilometers away from Portion 749. This is deposed to in the affidavit of George Constantinou sworn on 24th December, 2013 and filed on 7th January, 2014, at paragraph 11. Annexure 'C', a map of Portion 2173, also confirms this. This fact is not disputed by the Petitioning Creditor and the Liquidator.
    
68. A copy of the title deed before me shows that Portion 749 was transferred to Nicholas Constantinou and Thomas Constantinou on 1st March, 2007 which transfer was entered on 8th March, 2007.
    
69. Portion 2173, according to the map that is before me in evidence attached as annexure 'C' to the affidavit of George Constantinou sworn on 24th December, 2013, is located about 2 kilometers away from Portion 719. (par. 11)
    
70. Although I do not have the transcript of the hearing of 7th October, 2013 before me, I can safely say that when the application was moved on 7th October, 2013, that the documentation before the Judge on 7th October, 2013 were the following;
    

- Petition filed by Gadens Lawyers on 30th August, 2013

- Affidavit Verifying Petition sworn by Herman Hengeveld on 30th August, 2013 and filed by Gadens Lawyers

- Affidavit of Service of Tau Uamaki sworn on 29th August, 2013 and filed on 30th August, 2013 by Gadens Lawyers.

- Consent of Official Liquidator filed on 6th September, 2013 by Gadens Lawyers and which is signed by James Kruse, the Liquidator and witnessed by lawyer of Gadens Lawyers, Ms Lisa-Marie Tepu.

- Advertisement of Petition filed on 6th September, 2013 by Gadens Lawyers.

- Affidavit of Service of Rocky Madi sworn on and filed on 30th September, 2013 by Gadens Lawyers.

- Affidavit of Compliance sworn on 1st October, 2013 and filed on 2nd October, 2013 by Gadens Lawyers

- Certificate Under Section 45 of the Companies Rules filed on 3rd October, 2013 by Gadens Lawyers

71. Of course, with these documents before it, the Court at that time, would obviously have formed the view that all requirements under the Companies Act requiring that a Liquidator be appointed and that NC Resources Limited be wound up, had been complied with, which of course, prompted the Judge to make the orders that he did.
    
72. I should also state for the record that the affidavit of Rocky Madi sworn and filed on 30th September, 2013 deposes and which is confirmed by the annexure attached to his affidavit as 'RM1', that he did serve the Petition at Portion 749, 16 Mile, Sogeri road. The evidence now before me is that Portion 749 is located at 18 Mile and not 16 mile. (my emphasis)
    
73. Case authorities in this jurisdiction have made it specifically clear that where an order is irregularly entered, that it must be set aside as of right. In Fraser v. MVIT (1992) N1089 dated 6th July, a case where the defendants sought to set aside default judgment and for leave to file and serve a defence, the Court noted that it had the power to correct errors. The defendant argued that the affidavit of service of the Originating Process was defective and that consequently the default judgment based as it is on the fact of service should not be allowed to stand, that it is void and of no effect and not merely voidable. (Fraser v. MVIT (supra) at page 3).
    
74. In that case, the Court critically scrutinized the affidavit of service deposed to by a clerk employed at Messrs Henao Priestly, then, lawyers for the plaintiff. In that affidavit of service, the plaintiff had deposed that the writ of summons and statement of claim had been served on one Mary Mataneopa, a person over the age of 18 years and that she was authorized to accept service. The trial Judge noted that it was clear from that affidavit of service that there was no assertion that the defendant trust had been served, rather Mary Mataneopa was. The trial Judge also noted that there is an assertion that she is authorized to accept service. The trial Judge said;
    

"...but there is no evidence and consequently no weight should be given to such an assertion when the result has such a serious effect on a defendant. That is the only evidence of service on the defendant trust."

75. Counsel for the defendant/applicant in that case, referred to and relied on Order12, Rule 34 which provides for when judgment can be entered, more particularly, service on a corporation, which is provided for under order 6 rule 3 of the National Court Rules.
    
76. Counsel for the defendant/applicant also referred to and relied on section 3 of the Motor Vehicles (Third Party Insurance) Act which states that the Motor Vehicles Insurance Trust is a corporation and has perpetual succession. Counsel for the defendant/applicant then submitted that since the MVIT Act is silent on service on the Trust, that service must be in accordance with order 6 rule 3 (1) (2) (3) of the National Court Rules. Counsel then referred to paragraph 559 Volume 23 of Halsbury Laws of England (4th Edition) to support his submissions in relation to setting aside for lack of proper service. It reads;
    

"where a judgment in default of appearance or defence has been entered before the proper time or where there has been no service or no sufficient service or it has been entered for a greater amount than is due or there has been a breach of good faith, it will be set aside exdebito justitae, apart from any considerations as to whether there is a good defence on the merits and the plaintiff is usually ordered to pay their costs occasioned by the judgment or order".(pg.4)(my emphasis)

77. Although having heard arguments from the plaintiffs' lawyers that the defendant had not raised any irregularity in its notice of motion and also the fact that the plaintiff sought to proceed in default of appearance of the defendant, the trial Judge in Fraser v. MVIT (supra) said;
    

"there is a strict obligation on the registrar to satisfy himself before granting interlocutory judgment, that rules of court permitting interlocutory judgment, have been strictly complied with. Those rules, of course, include the necessity to strictly prove service" (pg 5)(my emphasis)

78. The trial Judge noted that whilst the motion did not touch on the irregularity, that the defendant was not precluded from raising the issue. The trial Judge also noted that the default judgment may be flawed where, on the face of the record, it appears the rules have not been sufficiently complied with.
    
79. The trial Judge held that the onus does not shift to the defendant to establish proper service rather the plaintiff must, in its affidavit of servce, strictly prove service in accordance with the rules and the law.
    
80. The provision on service in the Companies Act is Section 431. It reads;
    

"431. SERVICE OF DOCUMENTS ON COMPANIES IN LEGAL PROCEEDINGS

(1) Notwithstanding the provisions of any other Act, a document, including a writ, summons, notice, or order in any legal proceedings may be served on a company as follows;

(a) by delivery to a person named as a director or the secretary of the company on the register;

(b) by delivery to an employee of the company at the company's head office or principal place of business;

(c) by leaving it at the company's registered office or address for service;

(d) by posting it to the company's registered office, or address for service, or postal address;

(e) by serving it in accordance with any directions as to service given by the court having jurisdiction in the proceedings;

(f) in accordance with an agreement made with the overseas company.

(2) The methods of service specified in Subsection (1) are the only methods by which a document in legal proceedings may be served on a company in the country."

81. In Fraser v. MVIT (supra), the trial Judge reviewed the manner in which the affidavit of service was drafted. He said this;
    

"while he asserts that Mary Mataneopa is "authorized to accept service", no authorisation has been shown. The deponent has recounted no conversation in the first person to confirm her employment, her status, whether she was able to accept service for instance on the Trusts' behalf or whether the process server gave notice of the nature of the document which he sought to serve on her. She may well have been a stranger in the waiting room at that time. We have no idea. It must be remembered that service must be strictly proved and the rules of evidence apply. The commonly accepted method of service is for the process server to recount the conversation with the person personally served.

He should introduce himself and recount the nature of his business, to serve the Trust with a Writ of Summons, before asking who the person sought to be served, on the Trust's behalf, is, her position with the Trust and whether she is able to accept service on the Trust's behalf. Her authority should be produced. All this should be recounted in the first person in the affidavit." (pg 6) (my emphasis)

82. In this case, it is clear that the Petitioning Creditor's lawyers have not properly complied with process in relation to service of the Statutory Demand and the Petition. I say this because;
    

i. the Petitioning Creditor's affidavit of service sworn by Tau Uamaki on 29th August, 2013, deposing to service of the Petition, contains erroneous information/evidence in relation to the proper location of NC's registered office;

2. that service upon NC Resources Limited was not done in accordance with Section 431 of the Companies Act;
   
3. that Tau Uamaki's affidavit of service does not contain the necessary information to prove that service was properly effected, as held in Fraser v. MVIT (supra) which is;
   
   • - Tau Uamaki did not recount his conversation with the person he served upon,
   • - That this conversation would include his introduction to the person served and the nature of his business,
   • - That he did not ask whether the person receiving the Petition is authorized to accept service on behalf of NC,
   • - That he did not to ask for the production of this authority.
     

The same could be said for service of the Statutory Demand.

83. In relation to the service of the Statutory Demand, attached to the affidavit of Tau Uamaki sworn on 29th August, 2013 and filed on 30th August, 2013 by Gadens Lawyers is a letter from Gadens Lawyers to the Company Secretary NC Resource Limited trading as NC Civil Works.
    
84. The address on that letter reads;
    

"Company Secretary, NC Resource Limited trading as NC Civil Works, Portion 749, 16 Mile, Sogeri, Hiri Central Province". (my emphasis)

85. That letter enclosed the Creditor's Statutory Demand, Form 42. It was received at 16 mile, Sogeri by the company accountant and is dated 3rd July, 2013.
    
86. Section 337 of the Companies Act is the provision on Statutory Demands. It reads;
    

"337. STATUTORY DEMAND

(1) A statutory demand is a demand by a creditor in respect of a debt owing by a company made in accordance with this section.

(2) A statutory demand shall-

(a) be in respect of a debt that is due and is not less than the prescribed amount; and

(b) be in the prescribed form; and

(c) be served on the company; and

(d) require the company to pay the debt, or enter into a compromise under Part XV, or otherwise compound with the creditor, or give a charge over its property to secure payment of the debt, to the reasonable satisfaction of the creditor, within one month of the date of service, or such longer period as the Court may order."

87. The aggrieved person can apply to set aside the Statutory Demand under section 338 however, that will be done only after the applicant has been properly served.
    
88. Section 337 (2) (c) states that a Statutory Demand shall be served on the Company. Which means then that service on the Company will be in accordance with section 431 of the Companies Act. In this case, it is clear that service was at 16 mile, meaning service was not effected on Portion 749, rather service was effected on Portion 2173 at 16 mile.
    
89. Additionally, the affidavit does not contain the detailed facts I have just referred to above and confirmed by Fraser v MVIT (Supra). Additionally, the affidavit contains very scanty information on who accepted service and therefore, in my view, is not proof of proper service.
    
90. I find, upon review of all the evidence that it is clear that the Statutory Demand and Petition were not served on the registered office of NC Resource Limited. Therefore the orders in relation to the Winding-Up were irregularly entered and must be set aside. It means also that the Liquidator's powers will be relinquished by these orders.
    
91. Another matter that is quite intriguing is that all counsel have not submitted on who "Sir Theo Constantinou" is because he signed the Creditor's Statutory Demand for Payment of Debt as a Creditor. Could it be that this is a matter that involves family members? Of course, in my view, this is very relevant towards the issue of the parties meeting of 8th November, 2013, where the Liquidator and major creditors met and where an understanding was reached between the parties for the liquidation to be terminated in November or December, 2013. (see supplementary affidavit in support George Nicholas Constantinou sworn on 9th January, 2014 and filed on 9th January, 2014 at pars. 10 and 12).
    
92. As to delay, I note also Mr Constantinou's evidence as deposed in paragraph 13 of that affidavit that;
    

"as to the delay in making this application, the same was due to the understanding reached between the parties at the first appearance in Court that the matter would be amicably resolved between the parties and liquidation terminated accordingly. Whilst the meeting of 8th November, 2013 was fruitful and all parties agreeing to terminate the Liquidation upon myself making provision for settlement of other creditors, the Liquidator has persisted with the Liquidation and eventual wind-up of the Company."(my emphasis)

93. I find there is no delay. But why did the Liquidator persist with the Liquidation? He has not filed an affidavit explaining? Which reaffirms the earlier statement I made that the Liquidator and the Petitioning Creditor have not been open and transparent with this Court.
    
94. Indeed, no evidence has been brought by the Petitioning Creditor and the Liquidator responding to this evidence and all other evidence.
    
95. This Court finds that because service of the Statutory Demand and Petition were not properly effected or not effected at all, the order to liquidate must be set aside. It means that the Statutory Demand and the Petition are irregular meaning there is no cause of action on foot. The whole proceedings must be dismissed.
    
96. As to costs, it follows that the Petitioning Creditor and the liquidator must pay N C Resources Limiteds costs which will include Beatrice Geita and George Nicholas Constantinou's cost of the application, the proceedings and the liquidation.
    

Formal Orders

The Court's formal orders are;

1. The Creditors Statutory Demand dated 1st July, 2013 and Petition filed on 30th August, 2013 by Gadens Lawyers are set aside as being irregular;
   
2. The whole proceedings MP 15 of 2013, are dismissed; and
   
3. The liquidator is discharged from the liquidation and the liquidation is terminated forthwith.
   
4. The Petitioning Creditor and the Liquidator will pay the costs of this application, these proceedings, and the liquidation for N C Resources Limited, Beatrice Geita and George Nicholas Constantinou, which costs will be taxed, if not agreed.
   

_____________________________---______________
Gadens Lawyers: Lawyers for the Petitioning Creditor
Ashurst Lawyers: Lawyers for Liquidator James Kruse
Bradshaw Lawyers: Lawyers for Director of NC Resource Limited, George Constantinou
Williams Attorneys: Lawyer for Director of NC Resource Limited, Beatrice Geita