DC254

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DC NO 192, 3157 OF 2005

BETWEEN

Nauna Pond’rilei Tau
Complainant

V

Robin Seeto, Manager & Executive
Agent Otees Pty Ltd
First Defendant

Judy Seeto Share Holder Of
Otees Pty Ltd
Second Defendant

Duntan Seeto Shareholder Of
Otees Pty Ltd
Third Defendant

Otees Pty Ltd
Fourth Defendant

Port Moresby: Bidar
2005: 28th November, 12th December

District Court – Practice and Procedure- Applications on Notice of Motions -
Two applications by defendants seeking to set aside ex parte orders of 30th September 2005 in DC 192/05 and to strike out First, Second and Third Defendants as parties in proceedings DC 3157/05
General Principles – Applications granted -

There are no cases cited in the Ruling

Counsel
L.N. Drekali, for Complainant/Cross Defendant
M. Jajoga for Defendants/Cross Claimants

RULING

12th December 2005

BIDAR, PM: On the 6th October 2005 the defendant’s lawyers filed a Notice Of Motion seeking the following orders:

"1. The ex parte Judgment of 3oth September 2005 be set aside
2. That the complainant shall within 24 hours from the date of the order return all the items that were removed from the defendants property under the ex parte order of 30th September 2005.
3. The complainant and her relatives, friends, and associates be restrained, from entering the defendant’s office and properties at all times.
4. The complainant and her relative, friends and associates be restrained from removing chattels from defendants office and property.
5. The complainant and her relatives, friends, and associates be restrained from attending the complainants office and properties and harassing and threatening the defendant’s employees.
6. Time of entry be abridged forthwith 
7. Costs of this proceedings
8. Any or such other orders that the court deems fit."

On the 17th October 2005, the defendant’s lawyers filed second Notice of Motion seeking these set of orders:

"1. The first, second and third defendants be struck out as parties to this Proceedings
2. This proceedings be stayed until the complainant fully settles the outstanding costs of K581.00 in accordance with the Court Order of 21 June 2005 (in proceedings complaint DC No. 1591 of 2005).
3. In the alternative, the complainant pay into Court the sum of K3, 000.00 as security for Defendant’s costs.
4. The Complainant pays the costs of this application
5. Such further or other orders the Court deems fit."

In support of the orders sought in these applications, the defendants rely on affidavit of Harvey Nii sworn and filed on 17th October 2005 and affidavit of Melissa Jajoga sworn and filed on 6th October 2005 and annexures to the respective affidavits.

To understand the orders sought by the defendants it is necessary to state in brief the background to these proceedings.

The initial proceedings filed was between Pondrilei Recycling Ltd as the complainant and Manager Otees Properties Ltd, Robin Seeto, Chief Executive Otees Properties Ltd and Otees Properties Ltd as the defendants. This proceedings was filed on 22nd April 2005.

On the 21st June 2005, this court struck out the proceedings and awarded cost to the defendants.

Subsequently new proceedings instituted by default summons was filed by complainant Nauna Pondrilei Tau against the same Defendants in this court. Whilst these proceedings was on foot. Complainant filed yet another proceedings in the Central Court by summons upon information bearing case No. CPC 192/05. This was filed on or about 30th September 2005 and on the same date an ex parte order was entered where defendants were ordered to hand over complainants properties, namely power wiring, air conditions and office materials. This was unknown to the defendants, as it was done ex parte.

In my view, this latest proceedings was improper and process by which it was instituted was improper and an abuse of process of court, when the proceedings commenced by default summons was still pending. In my view this proceedings should be struck out, which is misconceived and abuse of process of court.

I have pursued the affidavit material and have heard submissions by counsel, and in relation to proceedings DC 3157/05, I grant the motion.

I order that the First, Second and Third Defendants be struck out as parties to this proceedings. These defendants have no capacity to be sued in their personal names. The proceedings DC3157/05 be stayed until complainant pays outstanding costs of K581.00 as ordered by this court on 21st June 2005, in proceedings DC1592/05. Complainant pays the costs of this application.

Case is adjourned to the Registry.

In relation to the other motion, I grant the motion partly. The ex parte order of 30th September 2005 is set aside. In relation to return of properties I refuse to grant such an order but I grant rest of the orders sought as per the Notice of Motion with costs to the Defendants.

Court rules accordingly.

Patterson Lawyers: Complainant
Harvey Nii Lawyers: Defendant