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Mendepo v Bora [2004] PGNC 234; N2535 (14 April 2004)

N2535

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

OS NO. 592 OF 2003

Between:

STEVEN MENDEPO
as Managing Director of KIMA HIRE CAR LIMITED
- First Plaintiff-

And:

KIMA HIRE CAR LIMITED
-Second Plaintiff--

And:

SAMSON BORA as Chairman of Imawe Bogasi Clan ILG comprising of
Toale Hongiri, Wolutau, Kesono, Ya’apu, Kapisapiro, Yendidou
Bogasi, Ipipome Hongiri, Kewa and Tiasapi Sub-Clans
-First Defendant--

And:

JOSEPH GABUT as Secretary for Department of Petroleum & Energy
-Second Defendant-

Waigani: Injia, DCJ
2004: April 14

CIVIL LAW – Practice and Procedure – Consent order – Action by service provider of services provided to the representatives of Incorporated Land Group – - Administrative services rendered to representatives away from resource development area – Charge on funds held in trust for benefit of landowners of resource development area – Action compromised by representatives of Incorporated Land Group and service provider- Duty of landowner representatives to keep administrative expenses to a minimum

No cases cited in the judgement.

Counsel:
P. Yalal for the Plaintiff
J. Abone for the First and Second Defendant
J. Kil for the Third Defendant

14 April 2004

INJIA, DCJ.: In Amended Originating Summons filed on 5/12/03, the Plaintiffs sought the following orders:

1. That the Memorandum of Agreement entered into between the First and Second Defendants on the 01st April, 2003, is binding.
   
2. Judgement is entered in favour of the Plaintiffs in the sum of K1,110,000.00 against the First Defendant.
   
3. The Judgement sum be settled by the Second Defendant from the funds of the First Defendant held in Trust to settle Incorporated Land Groups (ILG) Common Creditors.
   
4. The Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.
   

On 20/11/03, the Second and Third Defendants gave notice of their intention to defend the claim. The First Defendant did not file any Notice to Defend the claim. Various affidavits were filed in support of the claim. On 13/01/04, the parties submitted a Consent Order, for my approval, the terms of which are the same as the orders sought in the Amended Originating Summons.

At the hearing, I raised various queries in relation to the documents such as invoices which supported various amounts constituting the settlement amount. I directed the Plaintiffs to file further affidavits explaining or supporting some of the amounts. The reason for this was that I felt I should satisfy myself that the money held in trust for the benefit of landowners of the Oil Rich Gobe Oilfields, should be protected from the actions of "their representatives’ who it seems to me, tend to procure services away from home, in outside locations like Port Moresby, from service providers in those outside locations, and incur expenses, with or without the knowledge or approval of the landowners and which may or may not be of real benefit to the landowners, which are then charged on the trust funds and the landowner beneficiaries of those funds miss out. All too often, we hear of the plight of aggrieved, dissatisfied or disgruntled landowners, unsatisfied at not being paid at all or being lowly paid. Projects get interrupted. Many landowners incur their own expenses in making the long journey themselves to Port Moresby to check on payments. Their representatives must conduct themselves in such a way that they do not abuse the trust placed on them by the landowners by keeping administrative costs at a minimum.

In the present case, I am now provided with further affidavits which respond to some of the questions I raised. On the whole of the evidence, I am not entirely certain if my queries have been fully answered. Be that as it may, the weight of the evidence and the Consent Order, certainly favour the exercise of my discretion to endorse the Consent order. If any landowner is not satisfied with the terms of the Consent order, then it is up to them to take the appropriate action; it is not for this Court to interfere with the compromise unilaterally.

For these reasons, I endorse the Consent Order.
______________________________________________________________________
Lawyer for the First and Second Plaintiffs : Yalal & Associate Lawyers
Lawyer for the First Defendant : Parkil Lawyers
Lawyer for the Third Defendants : Kil Lawyers