N11280

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

MP NO. 23 OF 2024 (IECMS COMM)

IN THE MATTER OF THE COMPANIES ACT 1997

IN THE MATTER OF MABATA INVESTMENTS LIMITED (1128423) (IN LIQUIDATION)

WAIGANI: ANIS J
1, 12 MAY 2025

NOTICE OF MOTION TO DISMISS PETITION - s.300(1) and (2) – Companies Act 1997 – Order 12 Rule 40(1)(a)(b) and (c) – National Court Rules – s.155(4) – Constitution – whether the proceeding should be dismissed

PRACTICE AND PROCEDURES – preliminary issues – mode of proceeding - whether notice of motion equivalent to an application referred to under s.300(2) of the Companies Act 1997 –– or whether an application as referred to under s.300(2) means an application to be made by filing an originating summons using the standard form that is provided under the National Court Rules – considering applications or lack thereof of s.14 and s.48 of the Companies Rules - ruling

Cases cited
Kitogara Holdings Pty Ltd v. National Capital District Interim Commission [1988-89] PNGLR 346
Department of Works v. International Construction (PNG) Ltd (in Liquidation) (2009) SC1051
In the Matter of L & A Construction Ltd (2024) SC2595
PNG Air Ltd v. Custos Limited (2021) N8723
In the Matter of Piunde Ltd (2015) N5971
Re B-Mobile Ltd (2011) N4712

Counsel
J Kakaraya for the petitioner/liquidator
M Wangatau for an interested party/applicant

DECISION

1.	ANIS J:  I heard and reserved my decision on a notice of motion moved on 1 May 2025 by an interested person (Applicant) in relation to this matter.

2.	This is my ruling.

BACKGROUND

3.	The Applicant is Gaudi Rei.  He is a director and Chairman of Mabata Investments Ltd, which is the respondent.  The respondent company is presently under liquidation.  It was liquidated in this proceeding, under a final Court Order dated 21 February 2025 (Liquidation Order).  

4.	The Liquidation Order has not been appealed against and remains binding.

MOTION

5.	The Applicant’s notice of motion (filed 28 April 2025) (NoM) seeks the following main relief:

……
3.	Pursuant to Section 300 (1) and (2) of the Companies Act 1997 and/or Order 12 Rule 40(1)(a)(b) and (c) of the National Court Rules and Section 155(4) of the Constitution, the entire proceeding be dismissed on the grounds of:

(a)	Multiplicity of proceeding under the circumstances where the debt claimed to be owed by the petitioner is subject to an action for breach of contract in the proceeding styled as WS. (IECMS)-COMM) No. 66 of 2024 – Dekenai Constructions Limited v. Mabata Investments Limited and Ors.
(b)	Constructive Fraud between Dekenai .Constructions Limited and the Law Firm Mel & Henry Lawyers; and
(c)	Abuse of process where the petitioner seeks to unjustly enrich itself through this liquidation proceeding; and
(d)	The Applicant was never informed of this proceeding at any material time, resulting in a breach of natural justice.

4.	Alternatively, pursuant to Order 12 Rule 40(1)(c) and (d) of the National Court Rules, this entire proceeding is an abuse of process and should be stayed pending the determination of WS No. 66 of 2024 (IECMS)(Comm).
……

PRELIMINARY ISSUES

6.	The petitioner raised a number of preliminary issues to the NoM which I will deal with first.

7.	The petitioner first claims that the NoM is defective because it is not certain whether the Applicant is seeking to dismiss the proceeding or terminate the liquidation order that was made against the respondent company.

8.	I reject this assertion because I see no uncertainties in the NoM.  The Applicant expressly states the sources that he is relying on under relief 3 and 4, and he also expressly states what he intends to achieve or request from the Court.  

9.	However, the real question that I should ask myself following on from that is this; whether the Applicant, who is not a party to this proceeding, can make an interlocutory application by way of a notice of motion to try to dismiss this completed matter.  I note that I had put the Applicant’s counsel to task with this query at the hearing.

10.	I will answer the question, in the negative.  

11.	The petition that was filed in this proceeding by the petitioner Dekenai Construction Limited, was heard and determined on 21 February 2025.  Final Orders were issued to, amongst others, wind-up the respondent company, and Andrew Pini was appointed as its Liquidator.

12.	This proceeding has therefore concluded.

13.	The Applicant used a normal notice of motion form that is prescribed under the National Court Rules (NCR), to apply to dismiss this concluded proceeding.  The problem with the approach may be summarised with these observations:

•	the Applicant is not a party to this concluded proceeding;
•	the options that the Applicant may have under the circumstances may be:

(i)	to appeal under s.17 of the Supreme Court Act Chapter No. 37 (SCA); see case: Kitogara Holdings Pty Ltd v. National Capital District Interim Commission [1988-89] PNGLR 346; or
(ii)	to make an application under s.300(1)(2) to terminate the liquidation process.

•	if the Applicant chooses the latter option, which appears to be the case here, there is a further issue that arises which is that he is seeking as his primarily relief, to dismiss the completed proceeding when s.300(1)(2) of the CA does not provide for such a relief to be sought in the manner as instigated by the Applicant, that is, apart from the reason that this is a completed matter;
•	s.300(1)(2) reads:

(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.  [Underlining mine]

•	s.300(1)(2) applies in relation to termination of a liquidation process; it does not apply or give jurisdiction to the Court to dismiss the petition or the proceeding;
•	applications of Order 12 Rule 40(1) of the NCR and s.155(4) of the Constitution are inapplicable to achieve the purpose that the Applicant seeks in the NoM; there are various reasons but the main one is that the NoM is interlocutory when the matter is complete; after a matter is concluded, there is no basis for a non party to seek an interlocutory relief through a notice of motion;
•	the entire NoM is baseless and an abuse of court process, making the citation of Order 12 Rule 40(1)(a)(b) and (c) and s.155(4), inconsequential;
•	it appears that the NoM is therefore baseless and misconceived; it may also be regarded as an abuse of court process;
•	if the Applicant wishes to invoke s.300(1)(2) following its intended purpose, he may do so by filing an originating summons since none of the provisions under ss. 14 and 48 of the Company Rules apply where the Applicant may use to lodge his application;
•	The case law supports this practice and procedure, that is, that if no court forms for commencing proceedings are provided or referred to, in the CA or the Companies Rules, then an applicant may be entitled to adopt and use a civil originating summons that is prescribed under the NCR; see cases: Department of Works v. International Construction (PNG) Ltd (in Liquidation) (2009) SC1051 and In the Matter of L & A Construction Ltd (2024) SC2595;
•	I will add that this situation is somewhat similar like in the case where an applicant intends to apply under the CA to set aside a Creditor’s Statutory Demand under s.338.  For example, s.338(1) and (2) read:

(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.  [Underlining mine].

•	References made therein of making an application is achieved by filing an originating summons that is provided for under the NCR:  See cases:  PNG Air Ltd v. Custos Limited (2021) N8723, In the Matter of Piunde Ltd (2015) N5971 and Re B-Mobile Ltd (2011) N4712;

14.	When I weigh these observations and reasonings, I am minded to uphold the preliminary submissions of the petitioner.  I find the NoM misconceived and baseless.  The Applicant has used an incorrect mode or court process, which is an interlocutory application, to attempt to dismiss a substantive matter which has concluded.  

15.	Consequently, I also find the Applicant’s action to constitute abuse of court process. 

SUMMARY

16.	In summary, I will dismiss the NoM.

COST

17.	Cost for this type of application is discretionary.  I will order cost to follow the event on a party/party basis to be taxed if not agreed.

ORDERS

18.	I make the following orders:

1.	The Applicant’s Notice of Motion filed 28 April 2025 is dismissed.

2.	The Applicant Gaudi Rei shall pay the Petitioner’s cost of the application on a party/party basis which may be taxed if not agreed.

3.	Time for entry of these orders is abridged to the date and time of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly
________________________________________________________________ 
Lawyers for the petitioner/liquidator: O’Briens
Lawyers for the applicant: Ace