N9374
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 272 OF 2018

DAN SALMON RICH KAKARAYA
Plaintiff/Cross-defendant

-V-

MURRAY JAMES BENN
First Defendant

KONAN NO. 18 LINITED t/a ABBEY’S CARS
Second Defendant/Cross-claimant

TELITAH JENNIFER PATTERSON BENN
Third Defendant

CAROLYN HIEWELEI CHOLAI
Fourth Defendant

FRANCIS POHENHELAN
Fifth Defendant

Waigani:  Kariko, J
2021: 10th June & 12th July

PRACTICE & PROCEDURE – application to set aside interim injunction – change in circumstances – whether order still in force – minute of order inconsistent with court record  

Cases Cited

Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853
Mainland Holdings Ltd v Stobbs (2003) N2522
Mark Ekepa v William Gaupe (2004) N2694

Counsel

Mr B Mol, for the Plaintiff
Mr S Gor, for the Defendants

RULING 

12th July, 2021

1.	KARIKO, J: The late Katherine Kakaraya (the Deceased) filed this proceeding seeking specific performance by the defendants of a purported oral agreement she made in 2013 with the late Ruby Patterson Benn, the then shareholder of the second defendant, Konon No.18 Limited (Konon No.18). The alleged agreement concerns a property owned by Konon No.18 and described as Section 77 Allotment 19, Hohola, National Capital District (the Property) to be sold to the late Katherine Kakaraya. 

2.	It is claimed that the agreement constitutes a license under contract and a lease purchase arrangement. This is said to be reflected in a letter dated 15th March 2014, from the late Ruby Patterson Benn to the Deceased, who was renting the Property at the time. Katherine Kakaraya has since passed on and the administrator of her estate, Dan Kakaraya (the plaintiff), has been substituted as the claimant in this case. 

3.	The first and third defendants are joint administrators of the estate of the late Ruby Patterson Benn.  The fourth and fifth defendants are shareholders of Konan No. 18.   

4.	After filing this proceeding on 22nd March 2018, the Deceased obtained interim injunctive orders on 18th April 2018 against the defendants, their servants and agents, restraining them from evicting her from the Property.

5.	This is my ruling on applications by the defendants: 

(1)	to have those interim orders set aside; and instead 
(2)	for interim orders to be issued against the Plaintiff, his servants and agents, from occupying and entering the Property.

CONSIDERATION

6.	In the course of hearing arguments, I noted that the minute of the orders of 18th April 2018, did not accurately reflect the corresponding endorsement recorded on the court file at the relevant time. This is critical, and I will come back to it a little later.

7.	The application to set aside the restraining order is based on two grounds:

(1)	the plaintiff presented false and misleading evidence.
(2)	There is no utility in the restraining order continuing as the executor does not reside on the property.
	
8.	Of these grounds, I consider the second to have obvious merit. The interim injunction was obtained for the sole reason of preventing the defendants from evicting the Deceased from the Property she was then residing at. She is now deceased, having died on 8th June 2020. While this proceeding survives her death pursuant to s.34(1) of the Wrongs (Miscellaneous Provisions) Act, and the Plaintiff has substituted her as the claimant, he does not live on the Property. 

9.	In exercising its discretion whether or not to set aside interim restraining orders, there are a number of matters for this court to consider, including whether there has been a material change in circumstances; (Mainland Holdings Ltd v Stobbs (2003) N2522; Mark Ekepa v William Gaupe (2004) N2694).

10.	There is no question that the basis for the Deceased to continue to reside on the Property as argued on 18th April 2018, no longer exists. That ceased when she died. I would therefore exercise my discretion in favour of setting aside the interim injunction, that is if it is still in effect.

11.	I consider it highly questionable that the interim injunction continues to be in force. As noted earlier, the minute of the orders of 18th April 2018, contrasts with the file notation. The minute relevantly reads:

1.	The matter is adjourned to 9.30am on 11th May 2018 for the Plaintiff’s Notice of Motion filed 23rd March 2018 to be heard.
2.	The Defendants and their servants and agents are restrained from evicting the Plaintiff from the property described as Section 77 Allotment 19, Hohola, National Capital District.

12.	On the other hand, the file endorsement states:

1.	Matter further adjourned to 9.30am on11.05.2018 for hearing of the plaintiff’s notice of motion filed 23.03.2018.
2.	Until the return date, the defendants their servants and agents are restrained from evicting the plaintiff from the property described as section 77 allotment 19, Hohola, National Capital District.
(My emphasis)

13.	After adjourning to consider this ruling, I consulted my notes of 18th April 2018 and they are consistent with the court file endorsement. What this means is that the interim injunctive orders lapsed on 11th May 2018, but the parties have continued to rely on the minute which is incorrect and misleading. In fact, the file endorsements show that the matter was not mentioned in court again after the interim orders were obtained, until August of 2019 (over a year later) when the defendants filed a motion to dismiss the proceeding for disclosing no reasonable cause of action. 

14.	It is apparent that the incorrect minute unfairly benefited the Deceased and allowed her undisturbed occupation of the property for two years until her death. The bottom line is that there is in effect no interim injunctive order in force now. 

15.	I now turn to Konan No. 18’s motion for interim injunctive orders. 

16.	The legal principles for the grant of an interlocutory injunction are settled; see for example Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853. An applicant must show that: 

(1)	There are serious questions to be tried and that an arguable case exists; 
(2)	An undertaking as to damages has been given; 
(3)	Damages would not be an adequate remedy if the interim order is not granted; 
(4)	The balance of convenience favours the granting of the interim order; and 
(5)	The interests of justice require that the interim order be made.

17.	The second defendant’s cross-claim is for rental payments owed by the deceased Katherine Kakaraya, that are alleged to be due and outstanding since 2016. 

18.	I am not persuaded by any of the arguments by the plaintiff in opposing the application. It is not disputed that Konon No. 18 owns the Property. There is an abundance of evidence that all manner of unidentified persons have resided on or have been entering or using the Property at different times since the passing of the late Katherine Kakaraya. These persons may be related to the Deceased but that cannot be ascertained by the defendants. However, I consider it likely that those persons may be relying on the previous right of occupation of the late Katherine Kakaraya before her passing, to enter the property. It is clear to me that the plaintiff can pursue the claims in this action without the need for him or his servants and agents to have access to the Property in any form. 

19.	Based on all the material before me, I am satisfied that the considerations favour the defendants’ application, and I would therefore grant the interim orders sought by the defendants. 

ORDERS

20.	The formal orders of the Court are:

(1)	A declaration that the interim injunction ordered 18th April 2018 lapsed on 11th May 2018.
(2)	Until further order of the court, the plaintiff, his relatives, servants and agents are restrained from interfering with and occupying the property described as Section 77 Allotment 19, Hohola, National Capital District.
(3)	The defendants’ costs of and incidental to these applications shall be paid by the plaintiff, to be taxed if not agreed. 
(4)	Time for entry of these orders shall be abridged to the date of settlement by the Registrar, which shall take place forthwith.
________________________________________________________________
Warner Shand Lawyers:		Lawyers for Plaintiff 
Fiocco & Nutley Lawyers:	Lawyers for the Defendants