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Kupiane Investment Ltd (1-27629) v PNG Recoveries Pty Ltd [2025] PGNC 474; N11599 (20 November 2025)

N11599

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]


OS (COMM) 72 OF 2024 (IECMS)


IN THE MATTER OF AN APPLICATION UNDER THE COMPANIES ACT 1997


AND
IN THE MATTER OF AN APPLICATION BY KUPIANE INVESTMENT LIMITED (1-27629)
Plaintiff


AND:
PNG RECOVERIES PTY LTD
First Defendant


AND
DAVID KIL, REGISTRAR OF COMPANIES
Second Defendant


WAIGANI: CAREY J
12, 20 NOVEMBER 2025

COURT ORDERS — Whether motion to be granted or refused — Dismissed for want of prosecution – Plaintiff’s failure to provide reasonable explanation for absence from Court proceeding


In the Originating Summons filed the Plaintiff sought declaratory orders pursuant to Section 142(1) and (2) of the Companies Act 1997. The Plaintiff and First Defendant filed motions for hearing. The First Defendant entered appearance and the Motion was heard. The Court made a determination in relation to how the proceedings were to be dealt with in accordance with the National Court Rules.


Held:

  1. The Plaintiff has failed to prosecute the matter with no reasonable explanation.
  2. Pursuant to Order 10 Rule 9A (15) (1) (a) (2)(a) and (b) of the National Court Rules this matter is summarily determined.
  3. The proceedings are therefore dismissed in its entirety.
  4. The Plaintiff shall pay the First Defendant’s cost to be taxed if not agreed.
  5. Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

Cases cited
Monogenis v O’Brien trading as O’Briens Lawyers [2022] SC2754
National Airports Corporation Ltd v Abel [2020] unreported
Wakerkwa v Zongonau & Ors [2024] SC2649
William Papau v Tokom Jeffrey and Kaut Kilang (2019) N8110


Counsel
Non – Appearance, for the plaintiff
Mr. J Simbala, for the first defendant
Non – Appearance, for the second defendant


JUDGMENT


  1. CAREY J: This is the decision in relation to the Notice of Motion filed on 10th April 2025 (the Motion) by PNG Recoveries Pty Ltd (the First Defendant). There was non-appearance by Kupiane Investment Limited (1-27629 (the Plaintiff) and David A. Kil – Registrar of Companies (the Second Defendant).
  2. All parties were informed of the hearing date and time.
  3. The First Defendant provided written submissions and made oral arguments supporting the Motion.
  4. Further the First Defendant relied on five affidavits in support of the Motion which are as follows:
    1. Affidavit of Defence of Kelvin Bennett, document 10 sworn and filed on 30th January 2025;
    2. Affidavit of Defence of Kelvin Bennett, document 13 sworn on 12th February 2025 and filed on 14th February 2025;
    1. Affidavit of Joe Kale, document 14 sworn on 12th February 2025 and filed on 17th February 2025;
    1. Affidavit of Jeffrey Kapia, document 15 sworn on 12th February 2025 and filed on 27th February 2025; and
    2. Affidavit of Defence of Kelvin Bennett, Document 18 sworn and filed on 5th March 2025.
  5. The Plaintiff and the Second Defendant provided no submissions to the Court.

BACKGROUND


  1. On 23rd December 2024, the Plaintiff filed an Originating Summons in which it sought as follows:
    1. Pursuant to section 142 (1) and (2) of the Companies Act 1997, and the inherent powers of the National Court under section 155(4) of the National Constitution, the actions of the Second Defendant to authorize the removal of Kupiane Gold Resources Limited and to include the First Defendant as a shareholder in place of Kupiane Gold Resources Limited, alterations made on the 16th December 2024, is unlawful and therefore null and void.
    2. All or any shares deemed to have been transferred to the First Defendant, is in breach of section 65 of the Companies Act 1997, and is therefore unlawful and null and void.
    3. Alterations made to the Certificate of Good Standing of the Plaintiff Company, made on the 16th December 2024, in the office of the Second Defendant, be removed and records prior to 1st April 2024 be restored forthwith.
    4. In the interim and pending proceedings, the First Defendant be restrained from carrying out the roles of Shareholders of the Plaintiff Company and holding themselves out as shareholders of the Plaintiff Company.
    5. Costs of the proceedings.
    6. Any further orders the Court deems appropriate.
  2. The Plaintiff filed a Notice of Motion on 1st April 2025 and the First Defendant filed its Motion before this Court.
  3. The First Defendant’s Motion sought as below:
    1. Pursuant to Order 12 Rule 1 of the National Court Rules, leave be granted to the First Defendant to withdraw the following-
      • (a) Notice of Motion filed on 30th January 2025 [doc.#9]
      • (b) Notice of Motion filed on 14th February 2025 [ doc. #12]
      • (c) Notice of Motion Filed on 5th March 2025 [doc. #17] and
      • (d) Notice of Motion filed on 7th March 2025 [doc. #19].
    2. Pursuant to Order 12 Rule 1 of the National Court Rules in conjunction with Section 71(1)(a) & (2)(a) of the Companies Act 1997 and Section 155(4) of the Constitution –
      • (a) an order by way declaration that the entries and alterations effected and entered on the records of Kupiane Investment Limited on or about 4th March 2025, is illegal, null and void and of no effect
      • (b) an order by way of declaration that the changes and entries effected by the Second Defendant as at 4th December 2024 pursuant to the Court Order, dated 28th June 2024 in proceeding OS No. 14 of 2024- Kelvin Bennett v Kupiane Gold Resources Limited (KGRL) – is the correct record of Kupiane Investment Limited held at the office of the Second Defendant
      • (c) an order that the second Defendant restore or reinstate the records of Kupiane Investment Limited (KIL) prior to 4 March 2025 and as at 4 December 2024 forthwith
      • (d) restraining Orders are issued against any person, entity or third party from transferring, selling or otherwise dealing with the shares lawfully held by the First Defendant in Kupiane Investment Limited, Unless the order is specifically against the first Defendant and expressly authorised by an order of this Honourable Court.
    3. Pursuant to Order 12 Rule 1 of the National Court Rules in conjunction with Section 104(1)(b) of the Companies Act 1997 –
      • (a) an order that the First Defendant and the Board of Kupiane Investment Limited shall call a Board Meeting of directors and shareholders or special shareholders meeting in accordance with Section 102 and Schedule 2 of the Companies Act, within 40 days from the grant of these Orders
      • (b) the date, time and venue shall be fixed by the First Defendant and the Board of Kupiane Investment Limited
      • (c) the agendas for the meeting shall be to –
        1. resolve any issues regarding enforcement of the Consent Orders, dated 28th June 2024 in proceeding OS No. 14 of 2024- Kelvin Bennett v Kupaine Gold Resources Limited (KGRL); and
        2. resolve all critical management issues of or concerning Kupaine Investment Limited (KIL)
      • (d) the cost of conducting the meeting shall be met by the First Defendant
      • (e) the Second Defendant or his authorized officer shall attend the special shareholders meeting as per (a) & (b) hereinabove.
    4. The matter shall return to Court after the Board has resolved within the specified (40 days) or soon after for endorsement of the meeting minutes.
    5. Costs shall be in the cause.
    6. Time be abridged.
    7. Such further or other orders as the Court deems fit.

ISSUES


  1. (a) Whether the National Court should dismiss the proceedings on its own Motion for want of prosecution.

(b) Whether the Motion filed by the First Defendant should be granted or refused.

DETERMINATION

  1. There was non-appearance by the Plaintiff on 12th November 2025 and 12th June 2025, which raises the question as to whether the matter should be dismissed for want of prosecution.
  2. It is important that the party who brought the case to the National Court demonstrate commitment to comply with Court Orders and prosecute the matter.
  3. In this case it is clear that the Plaintiff failed to attend Court on two consecutive occasions to prosecute the matter.
  4. The National Court Rules states as follows:

SUMMARY DISPOSAL

(1) The Court may summarily determine a matter:

a. on application by a party; or

b. on its own initiative; or

c. upon referral by the Registrar under (3) below.

(2) The Court may summarily dispose of a matter in the following situations:

a. for want of prosecution since filing the proceedings or since the last activity on the file; or

b. for a failure to appear at any of the listing or directions hearing by a party or his lawyer; or

c. for non-compliance of any order or directions previously made or issued by the Court at any of the listing processes.

d. under any of the grounds set out in Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules.

e. on any competency ground relating to non-compliance with the National Court Rules or any other relevant rules of Court.

  1. It follows that Order 10 Rule 9A (15)(1)(a)2(a) and (b) of the National Court Rules would be applicable should the court exercise its discretion in this regard.
  2. Further, applying Wakerkwa v Zongonau & Ors [2024] SC2649, where it was held:

“Appeal dismissed for want of prosecution with costs to be paid by the appellants. There was a plain failure to continue to prosecute the matter and no reasonable explanation provided by the appellants....”, the matter may be summarily determined.

  1. The Plaintiff’s right to be heard is relevant for consideration and so I turn my attention to whether this right would be infringed if this matter is dismissed.
  2. Section 59 of the Constitution indicates:

Principles of natural justice.

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.


  1. I am satisfied that in this regard that the principles of natural justice have been observed and adhered to and none of the parties rights would be breached as a result of the matter being dismissed.
  2. In William Papau v Tokom Jeffrey and Kaut Kilang (2019) N8110 it states:

“7. ... The reason why an adjournment application should be justified is because judicial time is a national resource that must be used prudently.”


  1. The Courts’ time is precious and should not be arbitrarily dismissed as so unimportant that parties without reasonable excuse ignore Court attendance.
  2. The First Defendant’s motion sought orders which would not necessarily bring resolution to this matter.
  3. Further, the First Defendant contends that dismissing the proceeding will result in status quo which does not resolve the dispute between the parties.
  4. In Monogenis v O’Brien trading as O’Briens Lawyers [2022] SC2754 it was indicated that,

“In, Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes [2007] SC 853 the Supreme Court, adopting the principle in Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399 made that clear when it held:


"It is settled law that, the Courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that is always open to the court at any stage of the proceedings. As such, it does not matter whether a party appearing before the Court is raising it, because it goes into the competence of the very proceedings brought before the Court.


  1. It is relevant for me to consider whether in taking into account what is being sought by the First Defendant and in recognition that the Plaintiff has not progressed this matter to demonstrate a commitment to prosecute whether it would be an abuse of the Court process to decide on the Motion.

25 . The Courts’ power to dismiss proceedings is discretionary and should be exercised when applicable and necessary to do justice in the case.


26. In National Airports Corporation Ltd v Abel [2020] unreported, it states:

“19. Further, it has been held to be an abuse of process to seek declaratory relief that will not resolve all of the issues between the parties or relief that will not finally settle the real dispute between the parties (see TS Ten vs. Elcom [2002] SC683 and NCDIC vs. Bogibada Holdings Pty Limited [1987] PNGLR 135.”
27. I find that the granting of the Orders sought in the Motion would not be of any utility in resolving the dispute.


28. The substantive issue in the Originating Summons exist and in the absence of the matter being prosecuted it should follow that the proceeding should be dismissed for the Plaintiff’s failure to prosecute.


29. It follows that I refuse to grant what is sought in the Motion.


30. In the exercise of my discretion, I dismiss the proceeding for want of prosecution by the Plaintiff.


31. Therefore, this is the end of the matter for this proceeding.


ORDERS

  1. The proceedings are dismissed in its entirety.
  2. The Plaintiff shall pay the First Defendant’s costs to be taxed if not agreed.
  3. Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

Ordered accordingly.


Lawyers for the plaintiff: Yallon & Associate Lawyers
Lawyers for the first defendant: VIJAY & Co Lawyers

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