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Minig v Minig [2013] PGNC 136; N5327 (2 April 2013)

N5327

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

W.S. NO. 1617 OF 2011

BETWEEN:

BUI MINIG
Plaintiff

AND:

JOYCELYN MINIG
Defendant

Waigani: Kariko, J
2013: 22nd March & 2nd April

DAMAGES – application claiming damages pursuant to undertakings as to damages filed by plaintiff in previous District Court proceedings – claim for damages also based on unlawful use of motor vehicle by defendant's lawyer – defendant also applied to have plaintiffs claim dismissed for not disclosing a reasonable cause of action and for abuse of process - enforcement of an undertaking does not give rise to a cause of action in law - application to enforce an undertaking must be made in the proceedings in which that undertaking is given - The plaintiff's claims based on enforcement of an undertaking as to damages is dismissed - balance of the plaintiff's claim adjourned until determination of pending appeal

Cases cited:

Papua New Guinea cases:

White Corner Investments Ltd v Regina Waim Harro (2006) N3089
Lee & Song Timber (Png) Co LTD v Nathanael Burua (2005) N2836
Wei Xiang Cheng & Anor v Agmark Ltd & Anor (2008) N3338

Overseas cases

Cheltenham Gloucester Building Society v Ricketts & Ors [1993] 1 WLR 1545

Counsel:

Mr R Pokea, for the plaintiff
Mr J Abone, for the defendant

RULING

2nd April, 2013

1. KARIKO, J: Since their marriage breakdown, the parties have been preoccupied with bitter disputes over various matters but mostly over matrimonial property and this has seen them involve in various legal proceedings in different Courts. One such action concerned ownership of three motor vehicles and this was filed by Mrs Minig on 12th September 2011in the District Court at Port Moresby (DC No. 966 of 2011). She also filed an undertaking as to damages in support of her application for interim restraining orders against her husband from dealing with the vehicles and removing them. The orders were granted on 13th September 2011 and discharged when the case was finally determined on 24th November 2011 in favour of Mr Minig.
   
2. Mrs Minig filed an appeal in the National Court against the District Court decision on 25th November 2011(CIA No. 158of 2011).
   
3. Mr Minig with assistance from police and relatives tried to immediately recover the vehicles from his wife but was unable to do so until 28th November 2011.
   
4. On 22nd October 2012, Mr Minig filed a suit in this Court against his wife's lawyers (Pokea & Associates) for unlawful use of the motor vehicles (WS No. 1116 of 2012).
   
5. Then on 13th December 2012, he filed this proceeding claiming damages based on two grounds:
   
   • (1) The undertaking as to damages, whereby he seeks to recover loss suffered from the interim injunction; and
     
   • (2) The wrongful refusal by Mrs Minig to return the vehicles after the District Court decision.
     
6. Mrs Minig has in turn applied to have the proceeding dismissed on grounds that:
   
   • (1) no reasonable cause of action is disclosed; and
     
   • (2) it is an abuse of process.
     

Issues

7. In determining whether a reasonable cause of action is disclosed, the pertinent question to answer is whether the enforcement of an undertaking as to damages is a cause of action in law? A related question is whether such an application can be made in a court other than the court to which the undertaking was given?
   
8. In relation to the issue of abuse of process the relevant questions to address are:
   
   • (1) Whether this proceeding is proper given the appeal against the decision in DC No. 966 of 2011is pending?; and
     
   • (2) Whether this proceeding constitutes duplicity of the claim in WS No. 1116 of 2012?
     

Enforcement of an undertaking

9. In the case of White Corner Investments Ltd v Regina Waim Harro (2006) N3089 Gabi, J offers a very instructive discussion on the relevant guidelines and principles in relation to undertaking as to damages given for an injunction by referring to the principles established by a number of English and Australian case authorities.
   
10. One of those references is the case of Cheltenham Gloucester Building Society v Ricketts & Ors [1993] 1 WLR 1545 where Neill, L.J. at p.1551 listed guidelines concerning the enforcement of an undertaking as to damages, which guidelines have also been approved and applied in this jurisdiction in a number of cases; see for example Lee & Song Timber (Png) Co LTD v Nathanael Burua (2005) N2836; and Wei Xiang Cheng & Anor v Agmark Ltd & Anor (2008) N3338. His Lordship Neill, L.J. stated that: "...The undertaking though described as an undertaking as to damages does not found any cause of action. It does, however, enable the party enjoined to apply to the court for compensation if it is subsequently established that the interlocutory injunction should not have been granted." (My underlining)
    
11. It is clear then that an undertaking as to damages does not give rise to a cause of action in law.
    
12. Other principles noted by Gabi, J in White Corner Investments Ltd v Regina Waim Harro (supra) are that:
    
    • (1) if at the end of the trial the defendant is found to be right and the interim injunction ought not have been granted, the defendant will be entitled to damages; and
      
    • (2) an application to enforce an undertaking must be made in the proceedings in which that undertaking is given.
      
13. Based on these principles, Mr Minig should have made his application to enforce the undertaking in the District Court. His counsel argued that the reason why he did not do so was that the amount of damages he claims exceeds the jurisdiction of that Court. To my mind, this is no reason to depart from the relevant legal principles. The plaintiff could have applied for damages to be assessed. The entitlement to damages is a matter of discretion of the Court and amount of damages payable would very much depend on its proof.
    
14. Given the foregoing, that part of the Statement of Claim that pleads enforcement of the undertaking as to damages must be dismissed.
    

Abuse of process

15. This then leaves the claim for loss resulting from Mrs Minig's refusal to give the vehicles to her husband after the District Court decision of 24th November 2011.
    
16. In proceeding WS 1116 of 2012, Mr Minig claims that Pokea & Associates used the vehicles without lawful authority for the period 15th October to 18th November 2011, which occurred before the decision in DC No. 966 of 2011.
    
17. I do not find the present claim to be duplicity of the claim in WS No. 1116 of 2012.
    
18. Neither do I find that it is an abuse of process. Counsel for the defendant urged me to find otherwise because the appeal against the decision in DC No. 966 of 2011 is yet to be heard. If the orders of that decision have been stayed pursuant to the appeal having been entered as submitted by counsel, then the appropriate course would be for the present proceeding to be adjourned until determination of appeal CIA No. 158 of 2011.
    

Orders

19. Accordingly, this Court orders:
    
    • (1) The plaintiff's claims based on enforcement of an undertaking as to damages and in particular pursuant to paragraphs 3-5 and 8 of the Statement of Claim is dismissed.
      
    • (2) The balance of the plaintiff's claim pursuant to the Statement of Claim is adjourned to the Registry until determination of the proceeding CIA No. 158 of 2011.
      
    • (3) Costs to be in the cause.
      

______________________________________
Pokea & Associates: Lawyers for the Plaintiff
Parkil Lawyers: Lawyers for the Defendant