N10897

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 12 OF 2024 (COMM)

BETWEEN: 
MINERAL RESOURCES DEVELOPMENT COMPANY LIMITED
Plaintiff

V
KUMUL PETROLEUM HOLDINGS LIMITED
First Defendant

AND
KUMUL PETROLEUM (KROTON) LIMITED
Second Defendant

AND
KROTON LAITEPO EQUITIES LIMITED
Third Defendant

Waigani: Anis J
2024: 2nd & 15th July

APPLICATION FOR MAREVA INJUNCTION & APPLICATION TO DISMISS – Applications heard together – whether interim orders should be granted – consideration and ruling - whether proceeding abuse of process premised on multiplicity of proceedings – consideration and ruling

PRACTICE AND PROCEDURES – whether the plaintiff has sufficient interest or standing – consideration and ruling

Cases Cited:
SCR No. 4 of 1980; the Petitioner M T Somare [1981] PNGLR 265
Mamun Investments v. Ponda and Kombo [1995] PNGLR 1
Talita v. Ipatas [2016] SC1603
PNG Air Pilots Association v Director of Civil Aviation [1983] PNGLR 1
Pais Wingti-v-Kala Rawali, Electoral Commission & Tom Olga (2008) N3285
Namo’aporo Landowners Association Inc. v. Kerenga Kua and Ors (2021) N9267
Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959
Vanimo Jaya Ltd v. East New Britain Provincial Government [2018] SC1734
Paul Paraka v. Eastern Highlands Provincial Government (2005) SC809

Counsel:
JR. Renwick with Dr. Katter, for the Plaintiff
N Pilamb, for the First and Second Defendants
M. K. Kambao, for the Third Defendants

DECISION

15thJuly, 2024

1.	ANIS J:  On 2 July 2024, I dealt with 3 motions.  The first was filed by the third defendant where it sought leave of the Court to file its defence out of time.  Leave was granted by consent of the parties except cost which was contested.  I awarded cost of the third defendant’s motion in favour of the plaintiff, and I would refer to the transcript of proceedings of 2 July 2024 for my reasonings.

2.	The remaining 2 motions were as follows:  The plaintiff’s motion seeks, amongst others, interim injunctive orders or Mareva injunction, against any dealings on a sum of K22.7 million that had been paid by the first defendant or caused to be paid by the second defendant, to the third defendant on or about 22 August 2022.  The other motion was filed by the first and second defendants (2 defendants).  They allege that the proceeding is an abuse of the court process and should be dismissed.  They claim that the matter and issues raised in this proceeding had been dealt with in prior court proceedings with one which is still pending before the Supreme Court.

3.	I heard submissions from the parties on the 2 motions.  I reserved my ruling to a date to be advised.

4.	This is my ruling.

BACKGROUND

5.	Briefly, the plaintiff seeks various declaratory orders against the defendants.  Its complaint which has led to this proceeding is this.  In 2022, the plaintiff learnt that on or about 22 August 2022, the first defendant paid or caused to be paid by the second defendant, the sum of K22.7 million to the third defendant.  The plaintiff alleges that the third defendant was not entitled to receive the money.  It claims that the K22.7 million was supposed to be paid by the first and second defendants to an established trust that is managed by its corporate trustee that it wholly owns, for the beneficiaries who are the Hides PDL 7 Landowners.  The plaintiff claims that the process for this payment is governed by legislation and agreements, as follows:

•	Oil and Gas Act 1998; ss.175(2), 176(1)(2) and (3);
•	Mineral Resources Development Company Limited Authorisation Act 2020; s.11(1);
•	Hides 4 Gas Trust Deed; Clause 3.3(g);
•	The Vendor Finance Facility.

6.	The 2 defendants deny the claims by the plaintiff in their filed defence.  They claim, amongst others, that the K22.7 million was paid and received by the third defendant under an arrangement known as Kroton Equity Option which they claim is a separate commercial arrangement which is outside the purview of a benefit, interest or grant pursuant to ss.165, 166, 167, 175 and 176 of the Oil and Gas Act 1998 (O&G Act).  They allege that none of the provisions and agreements referred to by the plaintiff is appliable or may be involved to restrain or deprive the third defendant from receiving the K22.7 million.

PRELIMINARY ISSUE - STANDING

7.	I begin by addressing a preliminary issue that was raised in the 2 defendants’ motion to dismiss, which is the issue of standing.

8.	Of relevance to the issue, in my view, is s.176 of the O&G Act.  It states:

176.  PROJECT BENEFITS TRUSTS.

(1)  The equity benefit granted by the State in accordance with Section 167 and royalty benefit granted by the State in accordance with Section 168 to project area landowners, and any additional participating interest in a petroleum project acquired by project area landowners in accordance with Section 175, shall be received and held upon trust for those project area landowners by a corporate trustee which is wholly owned by MRDC.

(2)  Where by an act or agreement the State grants to project area landowners or other customary land owners any other benefit in relation to the petroleum project, whether by way of a beneficial interest in a licence or assets attributable to a licence, or payments based on production or profits of the petroleum project, or otherwise, that benefit shall be received and held upon trust for those persons by a corporate trustee which is wholly owned by MRDC.

(3)  Where a benefit referred to in Subsection (1) or (2) is held by a trustee upon trust pursuant to Subsection (1) or (2)–
(a)	the terms of the trust shall be set out in a deed approved by the Minister; and
(b)	the board of directors of the trustee shall be comprised in the majority by representatives of the State (including the managing director of MRDC) and in the minority by representatives of the grantees of the benefit; and
(c)	any equity interest or equivalent in a petroleum project held by the trustee shall not without the consent of the State be sold or transferred or charged, mortgaged or otherwise encumbered other than for the purpose of financing the activities of the trustee in that petroleum project or securing its joint venture obligations in that petroleum project; and
(d)	the trustee and the trust funds and any assets held by the trustee shall be managed by MRDC; and
(e)	the trustee and MRDC shall enter into a management agreement on terms approved by the Minister which agreement shall govern the management of the trustee and its assets and the amounts charged to the trustee for those management services; and
(f)	unless otherwise agreed between the State and the grantees of the benefit or prescribed by law, the beneficiaries of the trust shall be incorporated land groups on behalf of the grantees; and
(g)	where project area landowners entitled to an equity benefit in accordance with this section and who are equally entitled amongst themselves to share in that benefit are represented by more than one incorporated land group (or other representative if permitted in accordance with Paragraph (f)) the incorporated land groups or other representatives shall be allocated the benefit in proportion to the number of project area landowners each represents; and
(h)	the terms of the trust shall prescribe:
(i)	that 30%, or such greater proportion as may be agreed between the State and the project area landowners, of the net income of the trust fund after payment of all costs and expenses shall be held upon trust for future generations of project area landowners; and
(ii)	subject to the terms of any agreement between the State and project area landowners in force at the commencement of this section, that 30%, or such greater proportion as may be agreed between the State and the project area landowners, of the net income of the trust fund after payment of all costs and expenses shall be accumulated in investments in accordance with the terms of the trust and, together with the income from those investments, applied by the trustee for the benefit of project area landowners existing during the term of the trust for any one or more of the following purposes:–

(A)	the general health, welfare, education and well being of the project area landowners;
(B)	the provision or maintenance of community projects in the area of the petroleum project;
(C)	such other purpose for the benefit of the project area landowners as is approved by the Minister; and
(i)	the grantees of the benefit shall be at liberty to share or distribute income received by them from the trust in accordance with any customary arrangements or agreements they have entered into with the customary land owners outside of the area of the petroleum project, but such other customary land owners shall have no entitlement to or claim upon any part of the trust funds.

(4)  The equity benefit granted by the State in accordance with Section 167 of this Act to affected Local-level Governments or affected Provincial Governments, and any additional participating interest in a petroleum project acquired by an affected Local-level Government or an affected Provincial Government in accordance with Section 175, shall be received and held upon trust for those grantees by a corporate trustee which is wholly owned by MRDC.

(5)  Subject to Subsection (6), where by an act or by agreement the State grants to a Local-level Government or Provincial Government any other benefit in relation to the petroleum project, whether by way of a beneficial interest in a licence or assets attributable to a licence, or payments based on production or profits of the petroleum project, or otherwise, that benefit shall be received and held upon trust for that government by a corporate trustee which is wholly owned by MRDC.

(6)  Subsection (5) shall not apply to–
(a)	monetary grants made by the State to a Local-level Government or Provincial Government; or
(b)	any interest in buildings or other infrastructure provided to a Local-level Government or Provincial Government where the buildings or infrastructure are not dedicated project facilities of the petroleum project.

(7)  Where a benefit referred to in Subsection (4) or (5) is held by a trustee upon trust pursuant to Subsection (4) or (5)–
(a)	the terms of the trust shall be set out in a deed approved by the Minister; and
(b)	the board of directors of the trustee shall be comprised in the majority by representatives of the State (including the managing director of MRDC) and in the minority by representatives of that government; and
(c)	any equity interest or equivalent in a petroleum project held by the trustee shall not without the consent of the State be sold or transferred or charged, mortgaged or otherwise encumbered other than for the purpose of financing the activities of the trustee in that petroleum project or securing its joint venture obligations in that petroleum project; and
(d)	the trustee and the trust funds and any assets held by the trustee shall be managed by MRDC; and
(e)	the trustee and MRDC shall enter into a management agreement on terms approved by the Minister which agreement shall govern the management of the trustee and its assets and the amounts charged to the trustee for those management services.

(8)  Notwithstanding any other provision of this Act, the royalty and equity benefits granted by the State to project area land owners who have been identified as grantees of such benefits in petroleum projects which were at the commencement date of this Act are in production or have commenced development, shall be received and held upon trust for those project area landowners by a corporate trustee which is wholly owned by MRDC in accordance with this section.

(Underlining and increase in fonts mine)

9.	I note the submissions of the parties in this regard.  I also note the case law on standing including SCR No. 4 of 1980; the Petitioner M T Somare [1981] PNGLR 265, Mamun Investments v. Ponda and Kombo [1995] PNGLR1, Pais Wingti-v-Kala Rawali, Electoral Commission & Tom Olga (2008) N3285, Talita v. Ipatas [2016] SC1603, PNG Air Pilots Association v Director of Civil Aviation [1983] PNGLR 1, Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959 and Vanimo Jaya Ltd v. East New Britain Provincial Government [2018] SC1734.  In Vanimo Jaya, Batari J gives what I believe is a good summary of cases that interpret standing as well as His Honour’s interpretation, which I adopt herein.  His Honour said:

13.  Whether a party has sufficient interest in the matter before the court essentially, depends on the degree of the relationship between the plaintiff and the subject matter of his complaint. The plaintiff has the onus to show standing if he can demonstrate a reasonably arguable claim, that some rights whether private or public has been affected or he has suffered some prejudice from an excess administrative or judicial decision making process. A useful guide is found in, Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959, where Sheehan, J stated;

“Generally a Plaintiff will have standing if he can show that he has a reasonably arguable claim that by an invalid exercise of statutory power, some private rights in law has been affected or that he has suffered some prejudice. But the right to invoke the Court’s supervisory jurisdiction is not restricted to protection of personal right only. It can extend to more public issues.”

14.  A person having sufficient interest in the matter before the court is entitled to be heard. In Sandy Talita v Peter Ipatas (2016) SC1603 the Supreme Court stated;

“The issue of standing or locus standi is concerned with the right of persons having sufficient interest in the matter before the court to be heard and being given the opportunity to be heard. An applicant must have sufficient interest in that to which the application relates. The test of sufficient interest is an objective one based on the facts of each case: SCR 4 of 1980; the Petitioner M.T Somare [1981] PNGLR 265.”

15.  The right to be heard is an essential element of natural justice. It is settled, that any person whose rights or interests are likely to be affected by an administrative decision or judicial decision has a right to be heard by the decision-maker prior to making the decision: Pais Wingti-v-Kala Rawali, Electoral Commission & Tom Olga (2008) N3285.

16.  It is also settled that the nature of injury or damage suffered, whether actual or perceived can be wide-ranging. In PNG Air Pilots Association v. Director of Civil Aviation and Air Niugini [1983] PNGLR 1, the Supreme Court stated at page 3;

“The plaintiff will have locus standi where he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests and, perhaps, to his social or political interests.”

10.	The plaintiff, in response, raised a preliminary objection.  It submits that the issue of standing does not arise because it was not pleaded in the Statement of Claim (SoC).  I dismiss this objection.  The claim or defence of want of standing is pleaded at para. 1 of the 2 defendants’ Defence.  It reads:

1.	The First and Second Defendant (hereinafter the Defendants) cannot admit or deny paragraph 1 of the Statement of Claim, but say the Plaintiff has no locus standi, in that:
(a)	it is not an entity capable of or entitled to receive any equity or other benefit or interest pursuant to s.176 of the Oil and Gas Act 1998) (hereafter OG Act);
(b)	it is not a corporate trustee within the meaning of s.176 of OG Act;
(c)	it does not have the authority of such a corporate trustee or other such lawfully entitled entity, to institute current action.

(Underlining mine)

11.	In addressing the matter, I find the 3 pleaded reasoning under para. 1 of the defence contentious or arguable as part of the substantive issues that may be trialed.  And because this may require interpretation of various provisions under s.176 and other related sections of the O&G Act, that, in my view, may be reserved for substantive hearing.  Attempting to make detailed findings now will require considering and interpretating various provisions of various sections of the O&G Act including ss.165, 166, 167 and 176.  Therefore, or given the very fact of these contentious matters, which should be properly addressed at trial, it affirms, in my view, that the plaintiff does have sufficient interest in the matter.  The status of the K22.7 million, that is already paid to the third defendant, is under dispute at this juncture premised on the filed pleadings.  The plaintiff, who by legislation or under s.176(3)(d) appears (i.e., subject to final determination at the trial proper) as the ultimate manager of trust monies that are derived under ss.165, 166, 167, 175 and 176(1)(2), is filing this proceeding to secure or protect the K22.7 million which it claims, amongst others, may be subject to its overall management and control or control through its designated trustee.

12.	Let me make the following observations in closing or to summarise:

(i)	The creation of trust and corporate trustee to hold funds derived from s.176(1) and (2) appears to be by legislation, that is, the O&G Act;
(ii)	Corporate trustee under s.176 appears to refer to a trustee company;
(iii)	Funds that are derived under s.176(1) and (2) for the designated beneficiaries appear to be expected to be paid into the trust account or trust for each of the said beneficiaries to be managed by appointed corporate trustees;
(iv)	And it appears that each corporate trustee appointed will not personally receive the funds per se or to its name, but rather, that the funds is to be deposited into the trust fund that the corporate trustee or trustee company is responsible for, to manage and distribute to the beneficiaries;
(v)	s.176(3)(d) which says, the trustee and the trust funds and any assets held by the trustee shall be managed by MRDC, appears to suggest that express legislative provision is given to the plaintiff to manage or have overall control over a corporate trustee or a trustee company which may suggest that the plaintiff may be the overall trustee or has the overall role of a trustee for beneficiaries that are entitled to benefits that are derived under s.176 of the O&G Act;
(vi)	this may raise a fundamental question for trial, that is, on who is really in charge or in control over trusts or the trust accounts that are established for the benefit of the beneficiaries, from proceeds that are derived under s.176(1) and (2) of the O&G Act;
(vii)	the preamble of the Mineral Resources Development Company Limited Authorisation Act 2020, reads in part:

Being an Act to -

“(a)	recognise the incorporation of Mineral Resources Development Company Limited as an entity that, together with its subsidiaries, holds on trust interests in petroleum, mining and unconventional hydrocarbons projects for beneficiaries including project area landowners, affected Provincial Governments and Local-level Governments;”

13.	The above are not findings, but rather, they show the plaintiff’s interest in the matter, and they also suggest or highlight some of the matters or issues that should at best be reserved for arguments at a trial proper.

ABUSE OF PROCESS

14.	I turn to the main issue raised in the 2 defendants’ motion to dismiss.  They allege abuse of the Court process premised on the ground, multiplicity of proceedings. 

15.	I note the submissions of the parties in this regard.

16.	The defendants refer to 3 proceedings, namely, OS No. 10 of 2021 - Petroleum Resources Moran Limited v. Kumul Petroleum Holdings Limited and Ors (OS 10 of 2021), SC Rev. No. 33 of 2022 - Petroleum Resources Moran Limited v. Kumul Petroleum Holdings Ltd and Ors (SCR 33 of 2022), and OS No. 10 of 2023 - Gas Resources PNGLNG Pipeline Limited and Or v. Kumul Petroleum Holdings Limited and Ors (OS 10 of 2023).  They claim that the plaintiff had or has made identical or similar claims in these earlier proceedings.  

17.	OS 10 of 2021 was dismissed for being time-barred.  The Court therein found that the plaintiff’s cause of action was not a specialty but was for breach of contract and dismissed it for being out of time of 6 years.  The plaintiff therein, which is not the plaintiff herein, had sought declaratory or equitable relief claiming that it was entitled to receive additional 5 percent participating interest referred to as the Somare commitment.  After OS 10 of 2021 was dismissed, the plaintiff applied for leave to file a review against the decision, in SCR 33 of 2022.  On 21 April 2023, the Supreme Court (single judge) dismissed SCR 33 of 2022 for want of prosecution.  The proceeding was conducted ex-parte.  On 23 June 2023, the plaintiff therein applied for and was granted permission by the Supreme Court to apply to set aside the ex-parte order that summarily dismissed SCR 33 of 2022.  This proceeding is pending before the Supreme Court.

18.	First, I would dismiss the claims made by the defendants in reference to OS 10 of 2021 and SCR 33 of 2022, in support of their argument, multiplicity of proceedings.  There are many obvious reasons, but the main ones are as follows:  First, the cause of action and facts in the 2 proceedings are different to the present claim.  The present case relates to the K22.7 million that was transferred by the first and second defendants to the third defendant, on 22 August 2022.  The plaintiff is seeking declaratory orders on whether the actions of the first and second defendants in paying the K22.7 million to the third defendant, breached the mandatory requirements under s.176 and related provisions of the O&G Act, and if so, whether K22.7 million should be paid into the trust that is managed by the plaintiff and or its appointed corporate trustee.  Its cause of action or the equitable relief sought are premised on alleged breach of statutory provisions, unjust enrichment and constructive trust.  Secondly, the present proceeding and the primary facts relied on, have not been dealt with or decided by a court of competent jurisdiction.  The same can be said in regard to the material issues that are being raised in the present proceeding.  And this. I note that even if say SCR 33 of 2022 is successful and the review is upheld, whatever final orders the Supreme Court or the National Court may make in those proceedings, will not answer or resolve the factual issues and relief that are being sought by the plaintiff in the present proceeding.

19.	I now turn my attention to OS 10 of 2023.  Copies of the court documents including the originating summons have been adduced into evidence, that is, through the affidavit of Darren Ninkama filed 24 May 2024.

20.	I note the submissions of the parties on this.

21.	I make these observations.  The declaratory relief sought in OS 10 of 2023 appear similar to some extent.  The plaintiffs therein which included the plaintiff in the present matter, sought declaratory relief, amongst others, regarding the interpretation or application of various provisions of the O&G Act including s.176, questions such as whether funds that are derived under s.176(1)(2) or pursuant to the Kroton Equity Option arrangements, should be paid into trusts for the grantees to be held by the plaintiffs or its appointed corporate trustees.

22.	However, that said, I observe that the detailed facts and cause of action in OS 10 of 2023, when compared to the present case, are also different.  Secondly, the legal issues that had arisen in OS 10 of 2023, some of which may be similarly raised herein, had not been decided on their merits by a court of competent jurisdiction.  OS 10 of 2023 was pre-maturely or summarily dismissed premised on the reasoning that the proceeding was time-barred.  Thirdly, I note that time-bar was not raised as an issue in the present motion to dismiss.  And fourthly, I observe a material fact which is pleaded in para. 30 of the SoC, that the alleged breach of statutory provisions complained of for the payment of K22.7 million, was alleged to have occurred on or about 22 August 2022.

23.	In summary, and in answer to the 2 defendants’ motion to dismiss, I also find that the present proceeding is not without merit, meaning that it does disclose reasonable cause of action or meritorious issues of law that should require determination by the Court at a full hearing.  I refer to the reasonings and observations made earlier in this decision.  I also do not find the proceeding frivolous, vexatious, or that it amounts to abuse of court process.

24.	With that, I dismiss relief 1, 2, 3, 4 and the entire relief sought in the 2 defendants’ notice of motion filed 24 May 2024, that was premised on Order 12 Rule 40(1)(a)(b) and (c) of the National Court Rules.  For clarity, and for the same stated reasons, I refuse all the alternative relief sought in the motion to dismiss.  There is no basis to permanently stay this proceeding or stay this proceeding pending the outcome of SCR 33 of 2022.

MAREVA INJUNCTION

25.	In regard to the plaintiff’s motion, it seeks the following main relief:

“……
2.	Pursuant to Order 12 Rule 1 and/or Order 10A Rule 16 and/or Order 14 Rule 10(1) and (3) of the National Court Rules and the National Court’s inherent power under sections 155(4) and 166(1) of the Constitution, the third defendant, including by its directors, employees, servants or agents, or whosoever, be:

(a)	restrained from mortgaging, assigning, dissipating, disbursing or otherwise dealing with, the sum of K22.7 million or any residual balance thereof other than into the National Court Trust Account; and

(b)	directed to pay the sum of 22.7 million or any residual balance thereof into the National Court Trust Account forthwith, 

pending further order or the determination of this proceeding.

3.	Pursuant to Order 12 Rule 1 and/or Order 14 Rule 10(1) and (3) of the NCR and the National Court’s inherent power under sections 155(4) and 166(1) of the Constitution, the first and second defendants, including by their directors, employees, servants or agents, or whosoever, be:

(a)	restrained from mortgaging, assigning, dissipating, disbursing or otherwise dealing with, any further or future Kroton Equity Option Benefit payments (as pleaded in paragraphs 5-18 of the Statement of Claim filed 20 March 2024) as and when they fall due and payable to the PNG LNG Project Area Landowners (as pleaded in paragraph 5 of the Statement of Claim filed 20 March 2024), other than into the National Court Trust Account; and

(b)	directed to pay any further or future Kroton Equity Option Benefit payments (as pleaded in paragraphs 5-18 of the Statement of Claim filed 20 March 2024) as and when they fall due and payable to the PNG LNG Project Area Landowners (as pleaded in paragraph 5 of the Statement of Claim filed 20 March 2024) into the National Court Trust Account,

pending the determination of this proceeding.

4.	The Defendants pay the Plaintiff’s costs of and incidental to this Notice of Motion.
......”

26.	I note the submissions of the parties on the tests for granting interim injunction or Mareva injunction. The Supreme Court in Paul Paraka v. Eastern Highlands Provincial Government (2005) SC809 sets out the guidelines for deciding whether to grant a Mareva injunction as follows:

“(i)	The plaintiff should make full and frank disclosures of all matters in his knowledge which are material to the Judge to know....
(ii)	The plaintiff should give particulars of his claim against the defendant fairly stating the ground of his claim and the amount thereof, and fairly stating the points made against it by the defendant.
(iii)	The plaintiff should give some grounds for believing that he (the defendant) has assets within the jurisdiction.
(iv)	The plaintiff should give some grounds for believing that there is a risk of the assets being dissipated before the judgment.
(v)	The plaintiff must give an undertaking as to damages.”

27.	Applying these tests to the present matter, and in view of the supporting evidence including the affidavit of Augustine Mano filed 30 May 2024, that have been adduced by the plaintiff in support of its motion, including a valid Undertaking as to Damages which has been filed, I find that the plaintiff has met these requirements for me to grant the interim orders or Mareva injunction in the manner as requested.  The idea or proposal by the plaintiff to order any funds to be paid into the National Court Trust Account pending determination of the matter, in my view, is a better or neutral option for the parties given the circumstance of the case.

28.	I also note that there is no dispute that the K22.7 million has been paid by the first and second defendants to the third defendant.  This is also evident in the pleadings.  Thus, there is a real risk that the funds could be or may have been removed and paid out to third parties.  At this juncture, apart from the legal arguments that have been highlighted above for trial, the parties are at loggerheads on whether the K22.7 million constitutes funds that are mandated under s.176 to be paid into a trust account that is to be held or managed by a corporate trustee and the plaintiff, under s.176(3)(d) and related provisions.  The plaintiff contends in the affirmative whilst the defendants contend otherwise.  The defendants contend that monies received including the K22.7 million was premised on a private or separate commercial arrangement outside of the ambit of funds that fall under ss. 167, 168 and 176(1) and (2) of the O&G Act.

29.	In my view, these arguments have merit.  Thus, the plaintiff, in my view, does have a serious or meritorious claims that should go for a trial for proper consideration.

30.	But in the meantime, given the serious implications of what may be at stake after linking the K22.7 million as money that should be paid and held in a trust fund, and given the plaintiff’s legislative role which appears to include its mandatory role as the overall manager of trusts funds that are mandated under s.176, it is also in the public interest, in my view, that the money should be secured immediately without delay.  Also of relevance is the legislative interest.  The relevant legislative intention, based on which provisions were inserted into the O&G Act, was to, amongst others, create laws that would establish and secure benefits for resources owners in the country.  Thus, interim orders or Mareva injunction should be ordered in this case, including an order for the funds to be kept safe in the National Court Trust Account, until or pending the final determination of the matter.

SUMMARY

31.	In summary, I dismiss the 2 defendants’ motion to dismiss and grant the plaintiff’s motion for Mareva Injunction.

COST

32.	I will order the costs for the 2 motions to follow the event on a party/party basis to be taxed if not agreed.

ORDERS OF THE COURT

33.	I make the following orders:

1.	Pursuant to Order 12 Rule 1 and/or Order 10A Rule 16 and/or Order 14 Rule 10(1) and (3) of the National Court Rules and the National Court’s inherent power under sections 155(4) and 166(1) of the Constitution, the third defendant, including by its directors, employees, servants or agents, or whosoever, are:

(a)	restrained from mortgaging, assigning, dissipating, disbursing or otherwise dealing with, the sum of K22.7 million or any residual balance thereof other than into the National Court Trust Account; and

(b)	directed to pay the sum of 22.7 million or any residual balance thereof into the National Court Trust Account forthwith, 

pending further order or the determination of this proceeding.

2.	Pursuant to Order 12 Rule 1 and/or Order 14 Rule 10(1) and (3) of the NCR and the National Court’s inherent power under sections 155(4) and 166(1) of the Constitution, the first and second defendants, including by their directors, employees, servants or agents, or whosoever, are:

(a)	restrained from mortgaging, assigning, dissipating, disbursing or otherwise dealing with, any further or future Kroton Equity Option Benefit payments as and when they fall due and payable to the PNG LNG Project Area Landowners other than into the National Court Trust Account; and

(b)	directed to pay any further or future Kroton Equity Option Benefit payments as and when they fall due and payable to the PNG LNG Project Area Landowners into the National Court Trust Account,

pending the determination of this proceeding.

3.	The first, second and third defendants to pay the plaintiff’s cost of and incidental to the plaintiff’s Notice of Motion filed 30 May 2024, on a party/party basis to be taxed if not agreed.

4.	The Notice of Motion of the first and second defendants filed 24 May 2024 is dismissed.

5.	The first and second Defendants to pay the Plaintiff’s costs of and incidental to the first and second defendants’ Notice of Motion filed 24 May 2024, on a party/party basis to be taxed if not agreed.

6.	The time for entry of these orders is abridged to the date of settlement by the Registrar, which shall take place forthwith.

The Court orders accordingly.

_________________________________________________________
Geroro Lawyers: Lawyers for the Plaintiff
Mel & Hennry: Lawyers for the First and Second Defendants
Strategic Legal Services: Lawyers for the Third Defendant