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Uval (No. 138) Ltd v National Fisheries Authority [2017] PGNC 206; N6872 (7 September 2017)

N6872

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS NO 700 of 2017

UVAL (No. 138) Limited
Plaintiff

V

NATIONAL FISHERIES AUTHORITY
First Defendant

AND

MARIGOLD LIMITED
Second Defendant

Kimbe: Miviri AJ
2017 : 7^th September

PRACTISE & PROCEDURE - Notice of Motion – Ex parte application -preservation of property-reverting property to original location-to be dealt according to law - Originating Summons on substantive matter pending.
Cases cited:
Mussau Timber Development Pty Ltd v Mangis [1994] PNGLR 1 (24 August 1990)
Wanduma v Geng [2000] PNGLR 386 (17 January 2000)

Counsel:

Josephine Waiwai, for the plaintiff
No appearance, for defendants

RULING

7^th September, 2017

1. MIVIRI AJ: This is the ruling of the court in an ex tempore decision delivered today on a notice of motion, filed in a pending originating summons matter.
   

Background facts

2. The plaintiff seeks by motion to stop and retrieve from the vessel “Kweichow” voyage No 1713 from Kimbe to Lae Port Wharf. Upon arrival, a container marked TRLU 3762537 and for the National Fisheries Authority Manager in Lae to take possession of 143 bags of Bech-de-mer (119x30 kilograms in Chinese rice bags or 24x50kg) or the equivalent of 3,125.90 kilograms of Bech-de-mer. And for the matter to be sent back to Kimbe to be dealt with according to law.
   
3. The motion is supported by the affidavit of one Francisca Lamboku dated the 6^th September 2017 and filed the same day. She deposes that she is one of the three shareholders of the plaintiff attaching the company’s IPA certificate and a licence from the NFA and the Kimbe Urban Local Level Government.
   
4. She also attaches an order dated the 30^th August 2017 issued by the Kimbe District Court forfeiting the subject 143 bags of Bech-de-mer to the NFA. She deposes that the court had not yet ordered forfeiture and on the 28^th August 2017, NFA approved Marigold as the successful bidder and allowed purchase to it prior to the District court order. She pleads that this is an abuse by the National Fisheries Authority because the order was two days later.
   
5. This is not the same scenario as was discussed in Mussau Timber Development Pty Ltd v Mangis [1994] PNGLR 1 where it stated:
   

“It is well settled that if “A” proves that his proprietary rights are being wrongfully interfered with by “B”, and that B intends to continue his wrong, then “A” is primae facie entitled to an injunction, and he will be deprived of that remedy only, if special circumstances exist, including the circumstance that damages are adequate remedy for the wrong that he has suffered”

6. Given these facts, I grant leave to dispense with the requirements for service as the subject of the motion is on transit on vessel departed from the shores of Kimbe for Lae at 11.00pm last night. It is the same subject which is by court order forfeited to the first defendant who has passed it onto the second defendant, but it is such that the subject product will be out of the country if not granted.
   
7. The applicant has also filed an undertaking as to Damages and would indemnify should any party be affected by the operation of this interlocutory order.
   
8. It is a temporary order for preservation of property in accordance with Order 14 Rule 10 (1) of the National Court Rules, and the requirements are satisfied as there is an undertaking as to damages being filed. It is also tied in with the substantive matter the Originating Summons. The balance of convenience and the maintenance of the status quo arises and there is merit in the motion filed Wanduma v Geng [2000]PNGLR 386 (17 January 2000) accordingly, I grant the orders in accordance with the terms sought in accordance with Order 14 and Rule 10 (1) of the National Court Rules that:
   
   • (a) The National Fisheries Authority shall immediately make its Lae manager available at the Lae wharf upon arrival of a vessel called “Kweichow” voyage no. 1713 at the Lae Port, arriving from Kimbe, West New Britain Province.
     
   • (b) The National Fisheries Authority’s Lae Manager, shall immediately off load from the vessel called “Kweichow” voyage no. 1713 at the Lae Port arriving from Kimbe, West New Britain Province, a container marked as TRLU 3762537 belonging to Marigold Limited.
     
   • (c) The National Fisheries Authority’s Lae Manager shall immediately remove the container marked as TRLU 3762537 belonging to Marigold Limited loaded on the Swire Shipping vessel called Kweichow, voyage no. 1713. The concerned 143 bags of Bech-de-mer (119x30kilograms in Chinese Rice Bags or 24x50Kg)or the equivalent of 3, 125.90 Kilograms of Bech-de-mer
     
9. I Order that the proceedings return to court on the 21^st September 2017 at 9.30am.
   
10. The costs of this proceeding be borne by the defendants.
    

Ordered Accordingly

Emam Lawyers: Lawyer for the Applicant

No legal representation for the Defendant