N8345

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 487 of 2017

BETWEEN:
G. R. LOGGING LIMITED
Plaintiff

AND:
PULIE ANU TIMBER
COMPANY LIMITED
First Defendant

AND:
MATUFI (PNG) LIMITED
Second Defendant

Waigani: Hartshorn J
2020: 24th April
                                        
PRACTICE AND PROCEDURE – application seeking declaration to declare purported Deed of Assignment null and void and of no effect - Trial - plaintiff was removed from the register of companies - plaintiff did not exist at the time purported Deed of Assignment was executed – deed of assignment null and void – application granted 

Cases Cited: 

Ace Guard Dog Security Services Ltd v. Lindsay Lailai (2004) SC757
TW Transport Ltd v. Richard Maru (2012) N4934
Counsel:

Mr. I. Shepherd and Ms. C. Copland, for the Plaintiff
Mr. S. Phannaphen, for the First Defendant
Mr. J. Lome, for the Second Defendant
24th April 2020

1. HARTSHORN J: This is a decision on whether a declaration seeking that a purported Deed of Assignment is null and void and of no effect, should be granted.

Background

2. The plaintiff substantively seeks declaratory relief to the effect that a Deed of Assignment of a Timber Permit and any right in the Deed concerning the Pulie Anu Local Forest Area in Kandrian District, West New Britain Province, is null and void and of no force or effect. The plaintiff only seeks the relief sought in paragraph 1 of its Originating Summons.

Consideration

3. The first ground upon which the plaintiff relies for its claim that the purported Deed of Assignment is null and void and is of no force or effect is that the plaintiff on 17th May 2010 and at all material times had been removed from the register of companies under the Companies Act 1997.

4. Specifically on this issue, the second defendant submits that there is no sufficient proof that the plaintiff had been removed from the register of companies. Apart from submissions that declarations should not be granted in this proceeding on other grounds, the defendants did not submit that if the plaintiff was removed from the register of companies that the directors of the plaintiff still had authority to sign the purported Deed of Assignment on behalf of the plaintiff.

5. The evidence before the Court of the plaintiff's removal from the register of companies is the first page of a company extract from the Companies Office for the plaintiff as at 28th March 2014. This is annexure "G" to the affidavit of Paul Aivia sworn on 22nd May 2017. It records that the status of the plaintiff is, "Removed" and the cessation date is, "11 May 2006". Further, there is a letter dated 18th October 2016 from the Registrar of Companies in which, referring to the plaintiff, the Registrar states amongst others that: 

"In the (sic) case, as per your letter, the Deed of Assignment executed by the said two directors when the company was defunct, ... "

6. The Registrar states that the plaintiff was defunct. If the plaintiff had not been removed from the register of companies and at the time of the execution of the purported Deed of Assignment, the Registrar does not take the opportunity to inform the Managing Director of the plaintiff, to whom he was responding, of that fact. Further, there is no evidence filed on behalf of the defendants. The evidence of Paul Aivia is unrebutted.

7. Given this, I am satisfied that the plaintiff has proved on the balance of probabilities that the plaintiff was removed from the register of companies from 11th May 2006 and continued to be so removed up to at least 28th March 2014. 

8. The purported Deed of Assignment was made on 17th May 2010 and is described as being executed on the date first above written. It is purportedly signed on behalf of the plaintiff by Peter Mudio and Paul Sereng.

9. As I have found that the plaintiff was removed from the register of companies, the plaintiff did not exist at the time that the purported Deed of Assignment was executed: see generally Ace Guard Dog Security Services Ltd v. Lindsay Lailai (2004) SC757 and TW Transport Ltd v. Richard Maru (2012) N4934. This is also recognised in s. 372(1)(a), (b) and (2) Companies Act by references to a company which has been removed from the register, and, "if it still existed". The directors of the plaintiff did not have authority to sign the purported Deed of Assignment or any document on behalf of the plaintiff at that time as the plaintiff did not exist. Only the Registrar of Companies pursuant to s. 372 Companies Act may execute or sign, representing a removed company, in certain circumstances. There is no evidence that the Registrar of Companies did so sign the purported Deed of Assignment or that such circumstances under s. 372 existed.

10. Consequently, I am satisfied for the above reasons that the purported Deed of Assignment is null and void and is of no force or effect.

11. As to the submissions of the defendants that the declaration sought by the plaintiff should not be granted as it will not resolve all issues between the parties, as I have found that the Deed of Assignment is null and void, it follows that any rights of any party to the purported Deed which may have been granted, do not have any force or effect. As this proceeding is concerned with the purported Deed of Assignment and rights that flowed from it, the finding that the Deed of Assignment is null and void determines all rights between the parties that were thought to emanate from the Deed of Assignment. 

12. I am satisfied that the plaintiff has satisfactorily made out its claim for the declaration that it seeks in paragraph 1 of its Originating Summons. Given this it is not necessary to consider the other submissions of counsel.

Orders

13.   The Orders of the Court are:

a)	It is declared that the form of Deed of Assignment Purportedly Made on 17th May 2010 between the plaintiff as assignor, and the first 	defendant as assignee, assigning Timber Permanent No. LFA 14-04 	over Pulie Anu LFA project, located in Kandrian District, West New 	Britain Province is null and void, and is of no force or effect;

b)	Both defendants shall pay the plaintiff's costs of and incidental to this proceeding;	

c)	Time is abridged.
_____________________________________________________________
Simpson Lawyers:  Lawyers for the Plaintiff                         
Lhryn Lawyers:  Lawyers for the First Defendant             
Jeffersons Lawyers: Lawyers for the Second Defendant