SC2586

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 47 OF 2022

BETWEEN:
UNUNG-SIGITE LIMITED
Appellant

AND:
GILFORD LIMITED
Respondent

Waigani: Mogish, Makail & Purdon-Sully JJ
2024: 26th April, 7th June

SUPREME COURT – appeal against refusal to enforce two mediation agreements – whether the primary Judge erred in determining that the agreements did not co-exist and that the first agreement ceased to exist on making of the second agreement – whether the primary Judge erred in determining that the only parties to the mediated agreements were the appellant and the respondent - doctrine of privity of contract discussed – whether the primary Judge erred in finding that enforcement was not warranted for asserted breaches with respect to a non-party to a contract – no error established – appeal dismissed 

Cases Cited:
Papua New Guinean Cases

MVIT -v- John Etape [1994] PNGLR 596
Hargy Oil Palm Limited v Ewasse Landowners Association Incorporation [2013] PGNC 188; N5441
Mase (trading as Issac Mase Trading) v Gab [2021] PGNC 67; N8714
Maoko v Ling [2008] PGNC 19; N3293
Toligai v Sir Julius Chan & Anor [2012] PGNC 133; N4842
Papua New Guinea Banking Corporation v Amevo and Bari Investments [1998] PNGLR 240 
Lennie Aparima and Orita Aparima [1998] N1726
Christian Life Centre v Associated Mission Churches of PNG & Ors [2002] N2261
Clinton Capital Partners Pty Limited v Kumul Petroleum Holdngs Limited & Ors [2020] N8668

Overseas Cases

Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd (1915) AC 847

Legislation

Supreme Court Act (Chapter No. 37), s 6
ADR Rules 2010, Rules 3(2), 12
National Court Rules, s 1
Constitution, s 184
National Court Act, ss.7B(6) and 7E 

Counsel
 
S. Ketan, for the Appellant
W. Frizzell, for the Respondent 

REASONS FOR JUDGEMENT

 7th June 2024

1.	 BY THE COURT: This an appeal from a decision of the National Court of 9 March 2022 in OS 935 of 2019 (OS 935) dismissing the appellant’s application for enforcement of two mediated agreements.
BACKGROUND
2.	Before turning to the grounds of appeal and the issues for decision, it is appropriate to explain the background facts. 
3.	The respondent is an oil palm developer and the operator of an agricultural or oil palm project called Sigit-Mokus Palm Project on West Pomio of East New Britain Province (the project).
4.	On 29 November 2010, the respondent entered project agreements and sub-leases with each of Pomata Investment Ltd, Ralopal Investment Ltd and Nakiura Ltd (the 3 landowner companies) in respect of their state lease and the commencement and operation of the project.
5.	On 22 July 2011 the respondent also entered into identical agreements with the appellant, a landowner company.
6.	All of the agreements were expressed to be the subject of review fifteen (15) years from their date.
7.	The respondent gave effect to the project agreement and sub-leases on the state leases owned by the three landowner companies but neither the appellant nor the respondent took steps to give effect to those agreements on the relevant portion of land owned by the appellant.
8.	On 24 November 2016 the 3 landowner companies, the appellant and Memalo Holdings Ltd (Melamo), an umbrella company for the landowner companies commenced proceedings against the respondent in WS 1562 of 2016 (WS 1562) in which allegations were made in respect of entry of the project agreements and in relation to the operation of those agreements by the respondent.
9.	On 4 September 2017 the 3 landowner companies and Melamo as First, Second, Third and Fifth Plaintiffs in WS 1562 were granted leave to withdraw their claims and discontinue WS 1562.  
10.	On 27 March 2018 mediation was ordered by consent between the remaining parties in WS 1562. On that date a Mediated Process Agreement (2018 agreement) was entered by the appellants and respondent with a mediator’s certificate filed in WS 1562. 
11.	The Mediator’s Certificate dated 28 March 2018 inter alia provided that the parties had reached agreement in good faith, the parties identified at the commencement of the certificate as the appellant and the respondent.
12.	On 18 February 2019 a Notice of Discontinuance was filed in WS 1562.
13.	On 3 March 2019 a second mediation was conducted by the same mediator who conducted the first, Mr Greg Jones, and a further agreement was reached (2019 agreement).  Unlike the earlier mediation, this mediation was not Court ordered and no mediator’s certificate was filed.  The proceedings WS 1562 had been discontinued and there was no other proceeding on foot.  
14.	On 19 December 2019 the appellant filed the proceedings OS 935 seeking the following relief:
a.	That pursuant to Rule 12(b) & (3) of the ADR Rules of the National Court Rules, the Mediated Agreement reached between the Parties our of Proceedings WS No. 1562 of 2016 on 27 March 2018 which was merged into a Court Order on 17 May 2018 and the subsequent Reviewed mediation Agreement reached on 3rd March 2019 be enforced.
b.	That pursuant to Rule 14 of the ADR Rules the Court issue Directions as to the Enforcement of the Mediated Agreements and the Mediation of the Issues in this Proceedings (sic).
c.	That the Costs of this Proceedings (sic) be paid by the Defendants (sic) on an Indemnity Basis.
d.	Any further or other orders that this Honourable Court deems fit.

15.	The matter proceeded to trial on 11 October and 9 November 2021.  The appellant sought detailed directions at [89] of its final written submissions which by reason of length do not require recording here but which are detailed at pages 582 to 584 of Appeal Book.

16.	On 9 March 2022 the primary Judge, in published reasons, made the following orders:

a.	The enforcement proceeding is dismissed in its entirety.
b.	The plaintiff shall pay the defendant’s cost of the proceeding on a party/party basis to be taxed if not agreed.
c.	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 MEDIATION AGREEMENTS

17.	We set out the mediation agreements in full.

18.	The 2018 agreement provided as follows:

IN THE NATIONAL COURT			WS NO 1562 of 2016 (CC 2)
AT WAIGANI					
BETWEEN
							
UNUNG-SIGITE LTD
							Plaintiff
							
AND
		
							GILFORD LIMITED
							Defendant

1.	All Parties agree that the Development Project proceeds.
2.	All Parties agree to peaceful coexistence and accordingly agree to conduct all dealings with each other, present & future, with transparency, fairness, and respect. 
3.	Parties agree to rescind Unung Sigite Limited (USL) sublease and project Agreement both dated the 22 July 2010. 
4.	USL to forward Development Proposal to Gilford Ltd (GL) by 31 May 2018. 
5.	GL to respond by 30 June 2018. 
6.	A negotiation will be commenced by the parties by 30 July 2018.
7.	The negotiation will be conducted at a venue to be agreed between the parties. 
8.	The negotiation referred to above will be facilitated by Mediator Craig Jones, subject to availability. 
9.	Any Agreement as a result of the negotiation above will take the form of a sublease Agreement and development Agreement.
10.	USL will conduct an AGM by 30 July 2018.
11.	Parties expect that the other Landowning Companies (Pomata Investment Limited, Ralopal Investment Limited, Nakiura Investment Limited) in the Project will address Governance issues including conduct of AGMs as necessary and GL will assist where requested and agreed. 
12.	In order for negotiations to commence it is necessary that appropriate Governance processes will be conducted in each of the Landowner Companies. 
13.	In relation to Pomata, Ralopal and Nakiura, the relevant Landowner Companies can be at liberty to send proposals to GL in anticipation of review and renegotiation of the sub-lease agreement and project development agreements in 2020. 
14.	GL can respond to the above proposals within a reasonable time.
15.	The negotiation referred to herein and above should also include the following: -
i.	Benefits 
ii.	Operation of Project 
iii.	Scope 
iv.	Conduct of Parties
v.	Communication 
vi.	Social & Economic Impact
vii.	Environment 
16.	GL will provide relevant project information between the parties lawyers to assist the process of negotiation.
17.	In consideration of this mediated agreement Parties agree to discontinue WS No 1562 of 2016.

Dated the 27th of March 2018
Simon Keaton						Bill Frizell
Lawyer for the Plaintiff					Lawyer for the Defendant
19.	The 2019 agreement is in the following terms:

Mediation agreement between USL and Gilford Ltd 3 March 2019 at Port Moresby

1.	Mediated agreement of 27/3/18 is concluded.
2.	Parties agree to peaceful coexistence and agree to conduct all dealings with respect, transparency, clarity and no violence.
3.	Parties understand that the Land Owner Companies will complete their governance processes by 3 June 2019.
4.	Gilford shall communicate with the Landowners with respect including the following: 
1.	Will only deal with Land Owner Company directors with respect to the project 
2.	Will respect and maintain conservation areas as per agreements and law
3.	Shall assist in the completion of the governance processes in clause 3 where agreed.
5.	That the parties will not interfere with any Land Owner Company governance processes. 
6.	Once the Land Owner Company governance processes are complete as per Clause 3, Gilford may continue or commence renegotiation of agreements with Land Owner Companies as necessary including exchange of documents as necessary.
7.	Negotiations between Gilford and Land Owner Companies shall include the following: benefits, operation of project, scope, conduct of parties, communication, social and economic impact and environment.
8.	Gilford will provide project information to support negotiations with land owner companies as appropriate.
9.	Any negotiation between Gilford and USL will be based on documents exchange under the previous mediation agreement of 21/3/18. 
10.	The arrangements for the negotiation between Gilford and USL will include agreement on venue and timing of the negotiation process.
11.	Parties propose that mediator Mr. Craig Jones facilitate negotiations subject to availability. 
12.	Parties commit to prompt and effective communication. 
13.	Parties support the ongoing development of the project. 
14.	USL and Gilford to meet at a location near Pomio and at a date to be agreed but after 3 June 2019.

Dated 3 March 2019
Signed
Simon Ketan			Bill Frizzell

[Underlining for discussion purposes]

20.     The lawyers who endorsed the agreements are the lawyers for the appellant and respondent.
LEGISLATION
21.    Before we turn to the reasons of the primary Judge we set out the relevant rules under which the appellant sought orders by way of enforcement to which the primary Judge had regard in the Judgment. 
22.     The applicable Rules governing mediation at the times the parties entered into the 2018 and 2019 agreements are contained in ADR Rules 2010 (ADR Rules). The ADR Rules are to be read in conjunction with the National Court Rules (s 1).  The purpose of the ADR Rules, made pursuant to s 184 of the Constitution and ss.7B(6) and 7E of the National Court Act as amended, was, as stated in the preamble, inter alia to provide for the ‘…proper conduct of mediation….’. 
23.     On completion of a mediation the mediator was required by Rule 9(5) to file a certificate in the prescribed form within seven business days of completion of the mediation.
24.     Rule 3(2) in Part 1 and headed Interpretation relevantly defines the following words:
…..
“mediation” means the process a mediator uses to help the parties in a dispute to identify their disputed issues, develop and evaluate options, and enable them to make their own decisions about how to move forward and or enhance their communication in a way that addresses their mutual needs with respect to their individual interests with future actions and outcomes and enable them to reach their own agreement or make a decision based on self-determination and included blended processes and customary forms of mediation;
……
“participants” includes mediators, parties and all other persons present and participating in the mediation;
“party or parties” means the parties to any proceedings in Court or a dispute;
…..
“proceedings” means proceedings out of which mediation or another form of ADR has been ordered. 
25.    The appellant sought orders pursuant to Rule 12 of the ADR Rules that the mediated agreements be enforced.  
26.     Rule 12(3) of the ADR Rules 2010 provides:

12. Enforcement. 

(1)	Where in the course of a mediation, the parties agree on a resolution of all or part of the proceedings, the agreement shall be written down and signed by or for each party. 

(2)	Any party to a mediation conducted by a mediator may apply to the Court for an order giving effect to an agreement reached during the mediation by: 
(a) notice of motion if the proceedings are current; or 
(b) Originating Summons if the proceedings have been concluded. 

(3)	Subject to sub rule (2) an agreement reached during the mediation shall have the same force and effect, and may be enforced in the same manner, as if it were an agreement reached otherwise than during a mediation.
LEGAL PRINCIPLES ON APPEAL
27.      The appeal to this Court is by way of rehearing of the evidence given before the primary Judge, pursuant to s. 6 of the Supreme Court Act (Chapter No. 37).
28.      Section 6 is in these terms:

6. Appeal to be by way of rehearing.

1)	An appeal to the Supreme Court shall be by way of re-hearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court – (a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it, and (b) to draw inferences of fact.

2)	For the purposes of hearing and determining the appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.
29.      By virtue of this provision, this Court can exercise the powers, authority and the jurisdiction that would have been exercised by the primary Judge.  To that end, this Court can revisit the evidence given before the primary Judge, make findings of facts which may or may not be the same as those found by the primary judge and correct errors of law (MVIT -v- John Etape [1994] PNGLR 596). 
REASONS OF THE PRIMARY JUDGE
30.      We now turn to what we view as the salient findings of the primary Judge relevant to this appeal.
31.     At [7] of the Judgment the primary Judge identified the following two issues as preliminary issues which he proposed to address first and subject to his determination proceed to consider the merits of the claim and the enforcement proceedings:
a.	whether the 2018 and 2019 agreements exist or co-exist together or whether the 2019 agreement superseded the former;
b.	the parties dispute in relation to the relief and consequential relief sought. 
32.     The primary Judge firstly concluded that the 2018 agreement was superseded by the 2019 agreement.  At [19] of the Judgement the primary Judge said:
So, we now come to this pressing question which is this. “Was the 2018 mediated agreement concluded or whether it still exists or co-exists with the 2019 agreement?” The straight and obvious answer is this. The 2018 mediated agreement was concluded. It ended or ceased to exist, by a separate agreement, that is, the 2019 agreement. Clause 1 of the 2019 agreement is express. It reads Mediation agreement of 27/3/18 is concluded.
33.     The primary Judge then went on to consider whether the 2019 agreement was one that was within the terms and jurisdiction of the ADR Rules such that it could be enforced under Order 12(2)(b) of those Rules in circumstances where it was not in dispute that there were no pending Court proceedings at the time of the 2019 mediation (at [20]). 
34.     After considering the definition of the term, ‘mediation’ and the term “mediator’ under the ADR Rules he concluded at [24] – [25] as follows:

24.	The provisions and jurisdiction of the ADR Rules covers a wide area of matters that may be resolved by alternative means outside of the normal court process. Its vast application and limitations within its provisions were highlighted in Able Construction Ltd v W.R.Carpenter (PNG) Ltd (2014) N5636. On the same token, ADR Rules appears to focus mainly on Court sanctioned or ordered mediation (Rules 4, 5 and 6). That is, mediation in cases where proceedings have been filed and are pending hearing. But the extent of the definition of ADR, in my view, extends to mediation that may be conducted by parties with a duly accredited mediator without or before filing of Court proceedings. Parties that follow this method are of course required to appoint an accredited mediator whose credentials are approved or certified under the relevant provisions of the ADR Rules. And mediation conducted in this manner, like a Court sanctioned mediation, are required or obligated to observe the provisions of the ADR Rules. The only difference it seems in my view, apart from those highlighted above, is that the mediator does not get to fill in an order form or certificate as required to in a Court sanctioned mediation. But like a Court sanctioned mediated agreement, any agreement that is reached between the parties would be binding and enforceable. And an aggrieved party may seek its enforcement under Rule 12 of the ADR Rules.

25.	So, my answer to the question is this, "a mediated agreement that is entered between the parties without any Court proceeding being filed but that complies with or observes the provisions of the ADR Rules, is valid and enforceable within meaning or jurisdiction of the ADR Rules.” In the present matter, the latter agreement was mediated in that manner, which resulted in the 2019 agreement. It was a mediated agreement.
35.     Having so concluded the primary Judge then went on to find that as a binding agreement, notwithstanding that it had not been Court ordered, it was open to the appellant to invoke the enforcement provisions under Rule 12(2)(b) and (3) of the ADR Rules.  At [28]-[29] of the Judgement the primary Judge said:

28.	Given my preliminary findings that the 2018 mediated agreement has concluded, it means that the only agreement that remains is the 2019 agreement. The 2019 agreement, as I have determined, is separated mediation agreement which is binding between the parties to it, namely, the plaintiff and the defendant. The 2019 agreement was entered into by the parties, it appears, by abiding to the rules and jurisdiction of the ADR Rules. I say this because Craig Jones being a certified external mediator under the ADR Rules had been appointed by the parties to conduct the mediation. Mediation was conducted in 2019 whereby the 2019 agreement was reached and signed off by the parties. There was no requirement under the ADR Rules for a mediator to issue a certificate, like in a Court ordered mediation, so I note that no such certificate was issued in regard to the 2019 mediated agreement. But of course, that has no effect or relevance to the 2019 agreement which remains binding and enforceable upon the parties. No material arguments have been raised against that, apart from those raised which I have determined herein, so, I will presume for this purpose that mediation proceeded by observance of the rules as prescribed under the ADR Rules. 

29.	I also find, as a preliminary matter, that the plaintiff has correctly invoked Rule 12(2)(b) and (3). The original claim, proceeding WS 1562 of 2016, ended and there was no pending Court proceeding where the plaintiff could have sought enforcement by way of a notice of motion. I find that the plaintiff has correctly filed this originating process pursuant to Rule 12(2)(b) of the ADR Rules.
36.      Having concluded that the appellant had correctly invoked the relevant Rule the learned primary Judge then concluded at [30] of the judgment that the 2018 agreement had ceased to exist by the consent of the parties on 3 March 2019 and as a consequence that the enforcement of the agreement was baseless and without merit.  
37.      With respect to the 2019 agreement, being the only mediated agreement he found to exist between the appellant and the respondent, the appellant pleading breaches of that agreement, the primary Judge went on to make the following findings at [31]:
31.	This then leaves behind the 2019 agreement which I have found to be the only mediated agreement that exists between the plaintiff and defendant. However, I note that the plaintiff’s claim and relief is premised on the 2 agreements on the basis that they both co-exist or that the latter mediated agreement was a revived mediated agreement.  And the plaintiff has pleaded various allegations of breaches of the terms of the 2 mediation agreements in its statement of claim. This firstly and in my view, makes the entire claim partly and directly dismissible in view of my finding that the 2018 mediated agreement ceased to exist. Not only that but secondly, it also makes the entire claim vague and untenable, I say this because the pleadings herein are premised on both agreements being enforceable when that is not the case. The third reason is this. The plaintiff’s pleadings, evidence and submissions, as I have observed, were premised on his misconceived assumption or perception that both agreements were entered into by not just the plaintiff and the defendant, but by the plaintiff and the 3 companies or 3 other landowners of the project area and the defendant. The argument by the plaintiff in this regard is not supported with the backing of law and evidence. All I see and if I am to accept the plaintiff’s evidence at its highest is evidence of persons who say that everyone had shown up in regard to both mediate forums and that therefore is or should be sufficient for this Court to accept and as a consequence enforce the 2 agreements and grant the relief and consequential relief.  As I have stated above in my findings, the argument is simply flawed and has no merit whatsoever. It is made without regard to the basic principles or elements of a legally binding contract. It is also made without regard to the already existing project agreements and sublease agreements that these 3 landowner companies have with the defendant where the plaintiff is not a party to.
[Underlining ours]
38.     At [34] the primary Judge referred to the final consideration of interest of justice or common sense as follows:
….. The Plaintiff’s area is yet to be developed by the defendant. Development or planting or oil palm trees has yet to be developed by the defendant. Development or planting of oil palm trees has not reached its area. The second factor is this. From the 4 companies or groups of landowners the project area, the plaintiff is the only person or group who has rescinded its agreements with the defendant. The other 3 companies or group of landowners continue to have their respective agreements intact with the defendant and its operation of the project. And their agreements contain express provisions The including provisions for review of their terms and conditions or benefits. They are the ones directly affected by the project area and the ones receiving the benefits, not the plaintiff. With these considerations on the one hand and given the uncertainty or vague clarities in the pleadings and also taking into account the findings of the Court on the other legal preliminary matters, interest of justice requires that this proceeding should end or be dismissed on the preliminary basis without proceedings further.
39.     The primary Judge then dismissed the enforcement proceedings in its entirety summarising the basis for doing so at [35] – [36] of the Judgment in these terms:
34.	… I find the pleadings and relief sought substantially flawed, untenable and the relief sought unattainable. I find the proceeding filed based on a misconceived view regarding the 2 agreements and who the parties were and what relief should be obtained. I also find on the balance of probabilities, that the plaintiff fell short of establishing a case where the enforcement may be warranted this requiring a response from the defendant.
35.	I find that the 2019 agreement binding agreement the parties to it. However because of the unfounded, improper and vague manner in which the pleadings and relief are set out herein including consequential orders proposed, I am not minded to proceed further for the reasons that I have stated in my judgement. In my view the plaintiff may have to reconsider its position and recommence proceeding after this. Should that occur the claim just be properly thought through and it must also be properly pleaded which should be limited to the plaintiff’s interest and rights over the matter and must not involve or include parties that are not privy to the 2019 agreement.
SUBMISSIONS OF THE PARTIES
40.      At the hearing of the appeal, the appellant was represented by Mr Ketan and the respondent by Mr Frizell.  Both relied on filed written submissions and addressed the Court by way of oral submissions.
41.     The submissions on behalf of the appellant can be summarised as follows:
a)	The trial Judge erred in applying privity of contract, one unfairly raised given the proceedings involved enforcement, Counsel for the respondent raising no issue about that focus at the commencement of the proceedings.
b)	The 2018 mediation agreement had merged into a Court Order on 17 May 2018 and was an enforceable order.
c)	The 2018 agreement was replaced and extended by the 2019 mediation agreement which was binding and enforceable. 
d)	There was undisputed evidence that the mediation involved all four (4) land owning companies who participated in the 2018 mediation conference, all represented by the appellant’s lawyer Ketan Lawyers, the 2018 mediation agreement creating obligations on all four and creating obligations which applied to them all.
e)	The primary Judge failed to consider relevant historical context to the proceedings.
f)	The appellant acted to its detriment on undertakings of the respondent given in  binding mediation agreements, the respondent estopped from reneging on the undertakings.
g)	The mediation agreements were entered into in good faith and were breached by the respondent, good faith a principle set out in the ADR Rules.
h)	The evidence of two witnesses should not have been introduced, the primary Judge making no ruling on the objections to evidence, a failure that was in breach of the ADR Rules and the Evidence Act leading to an injustice. 
42.      The submissions on behalf of the respondent in summary are:
c.	The 3 landowner companies and Melamo having on 4 September 2017 withdrawn their claims against the respondent and discontinued in proceedings WS 1562, the appellant was left with claims in WS 1562 with respect to its agreements with the respondent in which neither party had performed anything and as a result had no cause of action in respect of the agreements between the 3 landowner companies and the respondent in the operational area of the oil palm project.
d.	The only parties to the 2018 and 2019 mediation agreements were the appellant and respondent. As the primary Judge found, the 3 landowner companies were not privy to the 2018 and 2019 mediated agreements.
e.	The pleadings and the appellant’s evidence concern alleged breaches of the agreements between the respondent, the 3 landowner companies and related matters.  The appellant is not a party to those agreements and the identical agreements which it did have with the respondent were mutually rescinded. 
f.	The 2019 agreement could not be linked to the earlier order as the 2018 mediation agreement was concluded, that is finished by agreement, and as such was superseded by the 2019 mediation agreement, a circumstance confirmed by Counsel for the Plaintiff in his opening address before the primary Judge.
NOTICE OF APPEAL
43.     In its Notice of Appeal filed 12 April 2022 the appellant sought the following orders:
a.	That the Appeal herein be upheld.
b.	That the National Court’s Order of 9 March 2022 in proceedings OS (CC2) No, 925 of 2019 be quashed.
c.	Proceedings OS (CC2) No.925 of 2019 be reinstated at the National Court for determination by the National Court.
d.	In the alternative to (c) above the Mediated agreements of 2018 and 2019 be enforced.
e.	The Respondents pay the Appellant’s cost of the Appeal herein and the Appellants cost of the National Court Proceedings OS(CC2) No.935 of 2019.
f.	Such further or other orders this Honourable Court deems appropriate.
44.     The appellant relied upon numerous and detailed grounds of appeal which we outline in full:

3.1 	His Honour erred in both law and Fact in summarily dismissing the proceedings in its entirety on the basis of his finding [at para 7 of written Decision (Decision)] that there were disputes as to the currency of the 2018 and 2019 Mediated Agreements and as to the Relief and consequential Relief sought by the Plaintiff which were preliminary in nature and he considered them first rather than considering the merits of the enforcement proceedings contrary to His Honour's finding [at para 9 of Decision] that the proceedings were enforcement proceedings pursuant to Rule 12(b) & (3) of the ADR Rules of the National Court Rules of Mediated Agreements entered into on 27th March, 2018 and 3rd March, 2019.
 3.2 	The Trial Judge erred in law in considering [at para 11 of Decision] as a preliminary consideration and applying the principles of Privy of Contract when the issue before him was the enforceability of Mediated Agreements and whether the Respondent (Defendant) had breached it.
 3.3 The Trial Judge erred in law in considering and applying the principle of Privy of Contract and considered the evidence and submissions of the Respondent [Para 12 of Decision] when:
i.	His Honour failed to consider and rule on the appellant's objections to parts of the Affidavits of the Respondents witnesses Andrew Tiong (AT) and Kanawi Pouru (KP) exhibits D2 and D3.
ii.	His Honour accepted Affidavit and oral evidence of the Respondents witnesses AT & KP which were in clear breach of the confidentiality and admissibility provisions of the ADR Rules, being Rules 11 and 13.
iii.	The Respondent was estopped by both Deed and Conduct from disputing the terms of the two Mediated Agreements, the terms of which had been agreed to, accepted and not disputed by the Respondent (Defendant).

 3.4 	The Trial Judge erred in law and in fact in finding [at para 13 of Decision] that the -26 Appellant (Plaintiff) was acting on its own in bringing this action and the Parties to the agreements were the Appellant (Plaintiff) and the Respondent (Defendant) when the undisputed evidence was that all four land owner companies namely Pomata Investments Ltd (PIL), Ralopal Investments Ltd (RIL), Nakiura Investments Ltd (NIL) and, the Appellant were represented at the Mediation Conference and Ketan Lawyers represented all four landowner Companies in the Mediation conference in Kokopo and the Mediated Agreements applied to all of them.
 3.5 	The Trial judge erred in law and in fact in applying the principle of privy of Contract to the Mediated Agreements and finding [at para 14 of Decision] that the three other landowner companies (PIL, RIL & NIL) were not included in the Agreements and-were not bound by them, that the Agreements were express or precise between the parties and the Defendants, that the agreements, their terms and the Parties to them were deliberate and must speak for themselves when:
i.	There was undisputed evidence that the mediation involved all four landowner companies representatives and there were express terms creating obligations on the Respondent (Defendant) to all four landowner companies. 
ii.	The issue before the court was whether or not the terms of the Mediated Agreements were breached.
iii.	there was no challenge to the enforceability or the Applicability of the Agreements by the three other landowner companies PIL, RIL and NIL.
iv.	The trial Judge failed to consider the merits of the case which was whether the Mediated Agreements had been breached by the Parties.

3.6 	The Trial Judge erred in law and fact in finding, concluding and determining [at Para 15 of s Decision] that:
i.	the three Landowner companies are not privy to the 2 Agreements and that the only two parties who are privy to the 2 Agreements are the Appellant (Plaintiff) and () Respondent (Defendant).
ii.	It was not proper for the Appellant (Plaintiff) to table the 2 Mediated Agreements before the court and argue that the agreements were actually agreed or consented to by all the landowners of the 4 companies or groups within the project area when the written agreements say otherwise.
iii.	there is no valid legal argument here that is worth considering.
iv.	at the same time the appellant (plaintiff) tries to seek to enforce the 2 agreements which may have significant consequences against the 3 landowner companies and the Respondent (defendant) when they all have existing legally binding project and 2 sublease agreements over the project area between themselves to which the Appellant (Plaintiff) is not privy and 
v.	as such it cannot include them into the Mediation Agreements and then seek to enforce the Mediation Agreements which would have significant consequences upon the 3 landowner companies and their business dealings and agreements which they have with the Respondent (defendant) where the Appellant (Plaintiff) is not a party to which the trial Judge said demonstrates how flawed or untenable this enforcement proceedings may appear to be when:

a.	it was not open to the trial Judge to consider and determine whether the other three landowner companies were privy to the Mediated Agreements given that the proceedings concerned the enforcement of the mediated agreements and all that the trial judge should have considered was the issue of whether the terms of the Mediated Agreements were breached by the Respondent (Defendant)
b.	the Issue of whether or not the three other landowner companies were party to the Mediated Agreements was not the issue for Determination before the court. 
c.	The issue before the court was whether the Defendant breached the Mediated Agreement. 
d.	the Respondent (Defendant) was estopped by Deed (The Mediated Agreement) and conduct (Participating at the Mediation Conferences agreeing to the terms and conditions and signing the Mediated Agreements) from disputing the terms of the Mediated Agreements and adducing evidence about the subleases and project development Agreement and making submissions relating to them.

3.7 	In applying the principle of privy of contract to the enforcement proceedings the trial Judge erred in law and fact when:
i.	He failed to appreciate and consider the background to the Proceedings, including:

a.	the Landowner problems with the Respondent (Defendant) over the Sigite-Mukus Oil Palm Project in West Pomio, East New Britain Province which prompted the commencement of Proceedings WS No. 1562 of 2016 seeking a Declaration that the Project Agreements were unconscionable, null and void and seeking a Review of the Agreements
b.	the Discontinuation of the Proceedings by PIL, RIL, NIL due to influence by the Respondent (Defendant) which then necessitated 20 an application by the Real Landowners through their respective ILGs to the Proceedings by Notice of Motion filed on 29th September, 2017 in the face of which the Respondent (Defendant) agreed to the matter being mediated resulting in the Court ordered mediation so the landowners and the Project Developer (Respondent/Defendant) can negotiate in good faith and find a resolution culminating in the 27th March, 2018 Mediation in Kokopo involving all landowners of the Project area and the Project Developer (Respondent/Defendant). 

ii.	He failed to consider the totality of the evidence and appreciate the background to the circumstances under which the Mediation and the two Mediated Agreements arose given:

a.	the special large scale project involving 58,000 hectares of customary land and 70,000 landowners represented by the four landowner companies
b.	emergence of problems with the Respondent (Defendant) developer prompting, the commencement of proceedings WS. No 1562 of 2016 seeking review of the Project Agreements out of which Mediation was ordered by the court to find an amicable resolution in which all four landowner companies, were represented culminating in Mediated Agreements in which the Respondent (Defendant) agreed to clauses and references to and obligations applicable to the other three landowner companies of PIL, RIL and NIL.

iii.	By applying the principles of privy of contract, the trial Judge erroneously allowed the Respondent (Defendant) to evade clear legal obligations in the Mediated Agreement to PIL RIL and NIL including an obligation created by Clause 13 of the 2018 Agreement for the review and renegotiation of the Project Agreement in 2020.

3.8 	The trial Judge erred in law in finding (at Para 17 of Decision) that the Appellant (Plaintiff) had intended to exit the Project and sub-lease Agreement it had with the Respondent (Defendant) and the 2018 Mediated Agreement ensured of that and that the Appellant (Plaintiff) had no legally binding project agreement and sub-lease agreement with the Respondent (Defendant) when:
i.	such findings and conclusion was irrelevant and not open to the court in so far as enforceability of the Mediated Agreement was concerned.
ii.	Upon a proper construction of the Mediated Agreement of 2018 it would have occurred to the Trial Judge that the recission of the Project and sub-lease Agreement between the Appellant (Plaintiff) and the Respondent (Defendant) pursuant to the 2018 Mediated Agreement was to facilitate for renegotiation of the Project and sub-lease Agreements.
iii.	The Relevant issue before the court was whether the obligations created by the 2018 Mediated Agreement for the renegotiation and execution of the Project and sub-lease agreements were breached by the Respondent (Defendant).

3.9 	The Trial Judge erred in law and fact in finding [at para 19 & 20 of Decision] that the Mediated Agreement of 27th March, 2018 was discontinued on 28th March, 2018 and the Appellant (Plaintiff) had its project and sublease agreements with the Respondent (defendant) terminated when:
i.	He failed to appreciate clear evidence that the reason for the second Mediation was that the Respondent (Defendant) was blatantly breaching the terms and conditions of the first Mediated Agreement. necessitating replacement by the 2019 Agreement which is clear in that the terms and conditions relating to the other three landowner companies are very much the same as the first Agreement whereby the Respondent (Defendant)

a.	acknowledged that there were obligations to the other three landowner companies. 
b.	acknowledged that the Respondent (Defendant) acknowledged that there were outstanding obligations from the first Agreement that had not been fulfilled such that the second agreement was an extension of the first Agreement. 

3.10 	The Trial Judge erred in law and fact in finding [at para 30 of Decision] that the 2018 Mediated Agreement ceased to exist by the consent of the parties on 3rd March, 2019 and as such seeking its enforcement is baseless and without merit when:
i.	The 2018 Agreement had merged into a court Order on 17th May 2018 and was enforceable as a court order.
ii.	The 2018 Agreement was replaced or extended by the 2019 Agreement which the trial judge found and determined [at paras 24, 25 & 28 of Decision] as binding and enforceable.

 3.11 The trial Judge erred in law in his finding and determination at Para 31 of Decision] that notwithstanding his finding that the 2019 Agreement is a Mediated Agreement and binding, the claim must fail because:
a.	the pleadings of the breaches of the terms and Relief are premised on the two Agreements co-existing making the claim vague and untenable and 
b.	the pleadings, evidence and submissions were premised on the- assumption and perception that both agreements were entered into by all the four landowner companies with the Respondent (Defendant) which is without regard to the basic principles or elements of a legally binding contract without any regard to the already existing project agreement and sub-lease agreements that the other three landowner companies have with the Respondent (Defendant) to which the Appellant (Plaintiff) is not privy to when: 

(i)	the Trial Judges finding and conclusions contradicts his finding [at Para 29 of Decision] that the Appellant [Plaintiff] correctly filed the proceedings pursuant to Rule 12 (2) (b) of the ADR Rules and his findings [at Para 28 of Decision] that the 2019 Agreement remains binding and enforceable upon the parties.
(ii)	The 2019 Agreement was enforceable against the Respondent (Defendant).
(iii)	The trial Judge failed to appreciate that the Agreements were Mediated Agreements aimed at finding a resolution of disputes between Project Site Landowners and Developer and the issue was one of whether the Respondent (defendant) breached the terms of the Mediated Agreement that it has agreed to and acknowledged.
(iv)	The Trial Judge wrongly allowed the Respondent (Defendant) to introduce Project Agreements and Sub-lease Agreements evidence pertaining to the Project and faking them into Account to influence his of the Decision by irrelevant material.
(v)	The 2019 Mediated Agreement could properly be enforced out of proceedings OS 935 of 2019 
(vi)	Any pleadings or Relief that could not be enforced could have been struck out by the Trial Judge and allow the balance of pleadings and the Relief to remain and be enforced.
(vii)	The dismissal of the entire proceedings was unwarranted unfair and unjust.

3.12 	The trial Judge erred in law in finding or determining that the Mediated Agreements and their terms and conditions were not enforceable to Pomata, Ralopal and Nakiura when:
i.	The terms and conditions relating to these three landowner companies were set out in the Mediated Agreement and that there were representatives of the three companies at both Mediated conferences and the terms of the Agreements are binding on the Parties.
ii.	the Trial Judge did not appreciate and ignored the central principle of Mediations which is always to act in good faith and thereby overlooking the overwhelming evidence of unconscionable and illegal conduct on the part of the Respondent (Defendant)

 3.13 The Trial Judge erred in law and fact in finding [at Para 32 & 33 of Decision] that the Relief 2 Sought in the Proceedings is totally flawed as it incorrectly relies on Rule 14 of the ADR Rules when it sought Directions for enforcement of the Mediation Agreements out of the Mediation Enforcement Proceedings.
 3.14 The Trial Judge erred in law and fact in proceeding to consider and find what he termed as interest of Justice or common sense consideration at [Para 34 of the Decision] and said:
i.	The Plaintiffs area is yet to be developed by the defendant from the 4 Companies or groups of landowners of the project area. 
ii.	The plaintiff is the only person or group that has since rescinded its agreements with the defendant.
iii.	The other 3 companies or group of landowners continue to have their respective agreements intact with the defendant and its operation of the project, and their agreements contain express provisions including provisions for review of their terms and conditions or benefits. They are the ones who are directly affected in the project area and are the ones who are receiving benefits, not the plaintiff.
iv.	With these considerations on the one hand and given the uncertainty or vague clarities in the pleadings and also taking into account the findings of the Court on the other legal preliminary matters, interest of justice requires that this proceedings should end or be dismissed on the preliminary basis without proceeding further, when:

a.	Such consideration and finding was not open to the Trial Judge as the issue before the court was whether the written terms Of the Mediated Agreement had been breached. by the Respondent (Defendant) yet the Trial Judge wrongly took into account irrelevant matters and evidence and allowed his Decision to be influence by them.
b.	The recissions of the Agreement of the Appellant (Plaintiff) with the Respondent (Defendant) was a term and condition of the Mediated Agreement which the Trial Judge failed to consider and take into account.
c.	Clause 13 of the 2018 Agreement expressly stated in relation to Pomata, Ralopal, and Nakuira, the relevant landowner companies can be at liberty to send proposal to the Respondent (Defendant) in anticipation of Review and renegotiation of the sub-lease Agreement and Project in 2020 which the trial judge overlooked and the date 2020 is missing in the restated version in the Decision at Para 16.
d.	The Trial Judge failed to consider the enforcement proceedings on the merits.

3.15 The Trial Judge erred in law and in fact in his finding and determining [at Para 35 of the Decision] in saying:
i.	I am therefore inclined to dismiss this enforcement proceeding in its entirety.
ii.	The preliminary findings in my view, favours dismissal
iii.	I find the pleadings and relief sought substantially flawed, untenable and the relief sought unattainable.
iv.	I find the proceeding filed based on a misconceived view regarding the 2 agreements and who the parties were and what relief should be obtained. 
v.	I also find on the balance of probabilities, that the plaintiff fell short of establishing a case where enforcement may be warranted thus requiring establishing response from the defendant.

and in summarily dismissing the proceedings on that basis when serious issues of breaches of the Mediated Agreement verging on illegal and unconscionable conduct on the part of the Respondent (Defendant) had been raised backed by credible evidence from witnesses representing all four landowner companies which issues required proper determination by the court on the merits.
3.16 The trial Judge erred in law in finding [at Para 36 of the Decision] when he said:
i.	I find that the 2019 Agreement binding between the Parties to it.
ii.	However, because of the unfounded, improper and vague manner in which the pleadings and relief are set out herein including consequential orders proposed I am not minded to proceed further for the reasons that I have stated above in my judgement.
iii.	In my view, the plaintiff may have to reconsider its position and recommence proceedings after this. 
iv.	Should that occur, the claim must be properly thought out though, and it must all be properly pleaded which should be limited to the plaintiffs interest and rights over the matter and must not involve or include parties that-are not privy to the 2019 Agreement" when: 

a.	given his findings that the 2019 Agreement was binding the trial Judge should have proceeded to consider the merits of the matter and make a determination as to whether or not the terms were breached instead of dismissing it and suggesting that the Appellant (Plaintiff) may have to recommence proceedings.
b.	the trial Judge should have found that the 2019 Agreement can be enforced out of proceedings OS (CC2) 935 of 2019.

 3.17 The Trial Judge erred in law in dismissing the Proceedings by taking into account matters in the Respondents cross-claim when the trial Judge [at Para 37 of the Decision] found that the cross claim had been abandoned 
3.18 The Trial Judge erred in awarding costs of the Proceedings to the Respondent when the Proceedings were summarily dismissed by considering matters such as privy of contract which were irrelevant to the Real issues before the Court. 
3.19 For all and any of the reasons stated in the foregoing grounds of Appeal, His Honour the learned trial Judge erred in law and in fact in summarily dismissing the proceedings.
[Highlighting and underlining as appears in original document]
CONSIDERATION  
45.      Enforcement is the legal process that ensures that terms agreed upon by parties to a contract are met and executed as intended.   While the appellant raises a number of grounds of appeal, in our view, the critical issue for consideration and the starting point for our discussion is what agreements existed that created enforceable rights and obligations and what parties were bound by the terms of any agreement.  Counsel for the appellant identified the contest at [39] and [41] of written submissions filed 12 April 2024 as follows:
39. 	The Respondent denied it had breached the Mediated Agreement and said that the 2019 Mediated Agreement was not enforceable, and that the Agreement did not extend to the three (3) other Landowner companies ….
41.	There was no contest between the Parties of the Mediated agreements. The only contest was that the Mediated Agreements were only between he Appellant Unung-Sigite and Respondent Gilford Ltd and do not apply to the three other Landowner companies…..
46.     It is not in issue that unless nullified or invalidated, all agreements reached at mediation have the same effect as legally binding and enforceable contracts (see Rule 12(3) of the ADR Rules; Hargy Oil Palm Limited v Ewasse Landowners Association Incorporation [2013] PFNC 188, N5441). 
47.     Nor is in dispute that at the time they were entered into both mediation agreements were binding and created contractually enforceable obligations for the parties to those agreements. 
48.     However, only a party to a contract can sue to enforce the rights and obligations created under the contract.  A contract does not confer rights (or impose obligations) on a stranger (Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd (1915) AC 847). 
49.     The appellant is accordingly only entitled to seek relief by way of Court order to enforce contractual rights or obligations created under a legally enforceable agreement against parties to the contract (Mase (trading as Issac Mase Trading) v Gab [2021] PGNC 67; N8714 at [20]; Maoko v Ling [2008] PGNC 19; N3293 at [6]-[10]; Toligai v Sir Julius Chan & Anor [2012] PGNC 133;  N4842 at [5]-[6])).  
50.     This legal principle, known as the doctrine of privity of contract, is a common law principle that has been adopted as part of the underlying law of Papua New Guinea (Papua New Guinea Banking Corporation v Amevo and Bari Investments [1998] PNGLR 240; Lennie Aparima and Orita Aparima (1998) N1726; Christian Life Centre v Associated Mission Churches of PNG & Ors (2002) N2261). 
51.      While there are exceptions to the principle, none are pleaded or raised in submissions (Clinton Capital Partners Pty Limited v Kumul Petroleum Holdngs Limited & Ors (2020) N8668 at [15]).
52.     The issue then is whether the appellant is able to show that the two mediated agreements were legally enforceable agreements, that the 3 landowner groups were a party to one or both agreements creating rights in their favour which the respondent breached.  If it is unable to do that, then it cannot avail itself of orders by way of enforcement. In that regard, we do not accept that the respondent was raising a ‘strictly legalistic argument’ (AB 2 Page 776). It was asserting a fundamental principle of the common law.  Whether the contractual obligations came about as a result of a mediation, negotiation, arbitration or Court order matters not and does not detract from the principle. 
53.     Further, and it is trite to observe, the Court cannot enforce an agreement that does not exist. 
54.     Before the learned primary Judge could consider the arguments advanced on behalf of the appellant in support of the orders it sought by way of enforcement against the respondent based on its asserted breach of obligations to the 3 landowner companies, it was necessary for the primary Judge to consider who were the parties to the agreements; and whether the 2018 agreement continued in force on the making of the 2019 agreement.
55.     We find no error in the learned primary Judge identifying as a preliminary issue whether the two mediated agreements co-existed or whether the 2018 agreement was superseded by the 2019 agreement and, based on those findings, who were the parties to the agreement/s before he could consider whether the terms of such agreement or agreements had been breached and what relief by way of enforcement the appellant could claim as a consequence.
56.      Nor are we able to discern any error in approach or in the reasoning of the learned primary Judge, by reference to the evidence before him or established legal principle in his concluding that the 3 landowner companies were not parties to either mediated agreement and as such did not acquire rights under the terms of those agreements that created obligations on either the appellant or the respondent. 
57.     The attendance of representatives of the 3 landowner companies at the mediations in 2018 and 2019 or reference to the landowner companies in the agreements does not permit a contrary conclusion.  The various representatives may have been participants in the mediation process.  That participation did not, however, make them parties to the agreements ultimately reached and signed off by the appellant and respondent. The 3 landowner companies did not sign either mediation agreement.  The lawyers for the appellant and the respondent on behalf of their clients were the only parties who signed the 2018 and 2019 agreements. 
58.     In the case of the 2018 mediation the appellant and respondent attended the mediation pursuant to a Court order issued under the ADR Rules in proceedings in which they were the only parties. The Court Order giving effect to the 2018 agreement made no reference to anyone other than the parties to the proceedings entering into the agreement, such agreement having been endorsed by lawyers for the parties to WS 1562.  On reaching the 2018 agreement the proceedings WS 1562 were then ended.  
59.    The fact that the terms of both mediated agreements made reference to the expectations of the appellant and respondent with respect to the 3 landowner companies did not make those companies a party to the agreements or create enforceable obligations on the appellant or respondent with respect to them.  
60.     The submissions on behalf of the appellant as to interpretation of the word ‘party’ vis a vis ‘all parties’ was not persuasive. 
61.    At [15] and [31] of the Judgment the primary Judge found that the 3 landowner companies were not privy to the two agreements and parties therein, the only parties privy to the agreements being the plaintiff and the defendant. We find no error in the conclusion of the primary Judge to that end and that only the appellant and respondent were bound by the terms of those agreements.  The submissions advanced on behalf of the appellant to the contrary are, respectfully, flawed, being contrary to established legal principle and the evidence. 
62.      Relevantly the primary Judge noted at [13] of the Judgment that Counsel for the appellant Mr Ketan had confirmed to the Court that at all material times during the mediation he was acting for the appellant only.  The landowner companies were not parties to the proceedings before the primary Judge.  At the setting down for trial on 3 September 2021 and again at trial on 5 October 2021, Mr Ketan, Counsel for the appellant, announced his appearance on behalf of the appellant only (AB 2, pages 606, 607, 614). 
63.     We agree with the observation of the primary Judge at [14] of the Judgment that it is highly unlikely that the appellant and respondent would leave out the 3 landowner companies if they were meant to be bound by the terms of the agreements.  If it was intended that they be a party they should have been identified as such and the agreements signed by a person with authority to do so on behalf of each entity as clear evidence signifying agreement to and an intention to be bound by the terms.  Given the appellant’s legal representation at both mediations, it is difficult to accept that had that been the intention the appellant would not have been alert to the need for a well drafted contractual agreement to ensure clear expectations between the parties to the contract were recorded to avoid ambiguity, reduce misunderstandings and enhance communication, a circumstance heightened by the history of dispute that quickly emerged following the 2018 mediation. The need for that clarity is not one at odds with the process of mediation, rather a tenet of it. 
64.    We further find that it was open on the evidence for the primary Judge to find that the 2018 agreement ceased to exist by the consent of the appellant and respondent on 3 March 2019 when they entered into the second agreement and that the appellant was unable to enforce the terms of a contract that was no longer in existence.  We are unable to discern any error in the primary Judge’s reasoning to that end. That the 2018 agreement ceased to exist and did not co-exist with the 2019 agreement is clear from Clause 1 of the 2019 agreement which is in these terms:
1.	Mediated agreement of 27.3.18 is concluded.
65.     There was no evidence before the primary Judge, nor persuasive submissions advanced before us, to suggest that those words should not be given their plain and ordinary meaning, namely, that the 2018 agreement had come to an end.  
66.       Indeed, in his opening address before the primary Judge when referring to second mediation agreement, Counsel for the appellant informed the primary Judge “… the previous mediation agreement was concluded and replaced by this agreement” (AB 2 page 622 line 30).  He agreed, when asked by the primary Judge, that the second mediation agreement superseded the first mediation agreement (AB 2 Page 623 line 17).  
67.     It was accordingly open to the primary Judge to find as he did at [14] of the Judgment:
…that the agreements, their terms, and the parties to them were deliberate, and I also find that the 2 agreements are express and that their terms and conditions must speak for themselves. 
68.     The 2018 agreement having concluded, the parties then went on to record the terms of the 2019 agreement, its terms enforceable against the two parties to it, namely the appellant and respondent. 
69.      We accept the submissions by Counsel for the respondent before the primary Judge at trial and on appeal, that the appellant’s concerns on the evidence related to the operational areas of the project operated by the respondent on state leases owned by the 3 landowner companies sub-leased to the respondent and the subject of project agreements in which the appellant had no legal, equitable or other interest.  The appellant is not a party to those project agreements.  The agreement between the appellant and the respondent, in mirror terms to that of the 3 landowner companies, had been mutually rescinded in 2018.  The appellant’s complaints then about performance obligations related to contracts and projects to which it had no interest at law and where it had otherwise failed to demonstrate on the evidence any material breach on the part of the respondent arising on the terms of the 2019 agreement to which he and the appellant only were parties.  
70.      Having then found that:
a)	the 2018 agreement had concluded on the making of the 2019 agreement, it being the only current agreement capable of enforcement;
b)	the only parties to the 2019 agreement were the appellant and the respondent, and the 3 landowner companies are not parties; and 
c)	the pleadings and evidence of the appellant concerned alleged breaches between the respondent and other entities not a party to the 2019 agreement, 
it was open to the primary Judge to dismiss the enforcement proceedings in their entirety, having concluded at [35] of the Judgment that the pleading sought was “substantially flawed, untenable and the relief sought unattainable.” 
71.    We now turn to the grounds of appeal.
Grounds 3.1 to 3.2 and 3.4 to 3.16
72.     It is convenient to consider these grounds as grouped as they concern the enforceability of the 2018 and 2019 agreements. We repeat and rely upon our earlier discussion and conclusions in this regard. For the reasons given we are unable to find error in the primary Judge’s reasoning and conclusions, his careful approach to the issues clear, logical and considered and his conclusions open on the evidence and in accordance with legal principle.  
73.     We find no contradiction between the findings of the primary Judge at [29] and [31] of his Judgment where the primary Judge found that the appellant had correctly involved the provisions of Order 12 (2)(b) and (3) of the ADR Rules.  Having found that the appellant had procedurally initiated the proceedings in a proper way under the Rules, the primary Judge then went on to find that the application for enforcement was without merit, the reasons for reaching that conclusion detailed at [31] of the Judgment.  We find no error demonstrated.
74.     We are similarly unable to discern error on the part of the trial Judge in his consideration at [34] of the Judgment of the interest of justice and common sense factors.  We again set out that paragraph in full:

There is a final consideration which is interest of justice or commonsense consideration 
which takes into account the following factors or facts. The plaintiff's area is yet to be developed by the defendant. Development or planting of oil palm trees has not reached its area. The second factor is this. From the 4 companies or groups of landowners of the project area, the plaintiff is the only person or group that has since rescinded its agreements with the defendant. The other 3 companies or group of landowners continue to have their respective agreements intact with the defendant and its operation of the project. And their agreements contain express provisions including provisions for review of their terms and conditions or benefits. They are the ones who are directly affected in the project area and are the ones who are receiving benefits, not the plaintiff. With these considerations on the one hand and given the uncertainty or vague clarities in the pleadings and also taking into account the findings of the Court on the other legal preliminary matters, interest of justice requires that this proceeding should end or be dismissed on the preliminary basis without proceeding further.
75.      No submission was made on behalf of the appellant that the factors detailed at 3.14 (i) to (iii) of its Notice of Appeal were factually incorrect on the evidence.  We are unable to conclude the primary Judge misapplied his discretion in considering those factors as relevant to the circumstances of the case such as to suggest identifiable error or a conclusion on those matters that was unreasonable or plainly unjust such that error could be inferred.
76.      It is not necessary to otherwise address the submissions on behalf of the appellant with respect to the failure of the primary Judge to take into account the historical context or the submissions on estoppel, confidentiality, admissibility, unconscionability and scandalous material. They are, respectfully, not relevant to our consideration of the principal issue that required determination, properly identified by the primary Judge and that was whether the mediated agreements, the terms of which were not in dispute, were enforceable against the respondent by reason of the 3 landowner companies being asserted parties to them.  As we observed earlier, Counsel for the appellant identified that contest at [39] and [41] of written submissions filed 12 April 2024 as he did before the primary Judge in his closing submissions (AB 2 pages 784-785) as follows:
The issues for trial your Honour are whether the 2018 mediated agreement is or has been – is enforceable is concluded or is enforceable. Whether the 2018 mediated agreement is binding on the parties. Whether the parties are in breach of the 2019 agreement….. 
77.      We have concluded that there is no merit in the submissions advanced in support of these grounds. As such the grounds fail.
Ground 3.17
78.     At [37] of the Judgment the primary Judge said:
This proceeding will be dismissed. I note that the defendant has filed a cross-claim. The main relief sought is injunctive in nature, and damages. I note that these have not been addressed by the defendant in its written submission, so I presume that the claim has been abandoned. I therefore will make no further order nor addressed (sic) that herein. 
79.    This ground also fails.  
80.     The primary Judge raised a cross-claim by the respondent which was before him.  There is nothing to suggest that in doing so it influenced his overall findings.  He did not take it into account.  He did not address it. He made no orders with respect to it.  In the penultimate paragraph of his Judgment the primary Judge was doing nothing more than ensuring that he had addressed all applications before him.  It was proper for him to do so. On the submission of the respondent, not challenged by Counsel for the appellant in oral submissions, the cross-claim was not pursued before or at the hearing.
Ground 3.18
81.     With respect to this ground no error is demonstrated, costs following the event.
Ground 3.19
82.      It is not necessary to address this ground. It is in the form of a concluding submission as opposed to identifying the whole or part of the judgment that is appealed from and addressing same.
CONCLUSION AND ORDERS
83.     For the above reasons we are unable to conclude that there are clear grounds to disturb or overturn the decision of the primary Judge.
84.     The appeal should be dismissed with costs to be paid by the appellant.
85.     In the result the following orders are made:
1.	The Notice of Appeal filed 12 April 2022 is dismissed.
2.	The appellant to pay the respondent’s costs of and incidental to the appeal as agreed or taxed.
3.	Time is abridged.
________________________________________________________________
Ketan Lawyers: Lawyers for the Appellant
Warner Shand Lawyers: Lawyers for the Respondent