N11438
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 146 OF 2025

BETWEEN:
TOTAL ENERGIES MARKETING ASIA-PACIFIC MIDDLE EAST PTE-PNG
Plaintiff

AND:
BERNARD MATAMBUAI
Defendant

LAE:   DINGAKE J
11, 15 AUGUST 2025

DECLARATORY ORDERS – application seeking declaratory orders confirming ownership of assets located at a fuel service station -  issues for determination - Whether a declaration should be made as to the ownership of the assets - Whether the Court should order for the delivery of the assets by defendant to plaintiff - Whether Court should order for plaintiff to attend at Service Station and remove assets - Plaintiff entered into Supply Contract with defendant for Plaintiff to provide fuel products to resell at defendant’s retail fuel located on the Service Station - express term of agreement state all equipment provided to defendant remain property of Plaintiff and must be returned at end of contract or in case of termination 

DISCRETIONARY ORDERS -  discretionary orders should be guided by criteria - there must exist a controversy between the parties, proceedings must involve a right, proceedings must be brought by a person who has a proper or tangible interest in obtaining the order, controversy must be subject to the court’s jurisdiction, defendant must be a person having a proper or tangible interest in opposing the plaintiff’s claim – all criteria met by plaintiff – plaintiff is owner of assets – defendant deliver up assets to the Plaintiff forthwith.

Cases cited
Ok Tedi Mining Ltd v Niugini Insurance Corporation (No2) [1988-89] PNGLR 425
Male v Yawii [2022] PGNC 243; N9730
Kariko v Nganagan [2022] PGNC 244; N9731
Larapa v Puluku [2022] PGNC 214, N9686

Counsel
Mr. Markwell Makap for the plaintiff
Mr. Sedrick Ju for the defendant

JUDGMENT

1.	DINGAKE J: INTRODUCTION: I heard this matter on the 11th of August 2025, as I was satisfied that the requirements of Order 4 Rule 26 of the National Court Rules (NCR) were satisfied.

2.	More significantly, I was satisfied that the substantive legal issues for determination are straightforward, and the circumstances of the case require immediate determination by the Court.

3.	The Plaintiff, in its Originating Summons filed on the 14th of July 2025, seeks the following relief from this Court:

1)	Pursuant to Order 4 Rule 2(3)(a) of the National Court Rules (the NCRs), a declaration that the Plaintiff is the owner of the following assets presently located on the property described as Allotment 1, Section 164, City of Lae – Taraka, Morobe Province (the Taraka Service Station or the property):

i.	Branding, Signage and Paint Work
ii.	4 x Multi Hose Product Pumps (Dual)
iii.	The Point-of-Sale System – i.e. specialized software and hardware setup that manages sales transactions, fuel dispensing, inventory, and customer interactions
iv.	22kVA Generator
v.	Lightspeed Internet Equipment
vi.	Totem
vii.	Tyre Inflator including hose
viii.	Canopy Cladding and Signage
ix.	Canopy downlights
(hereinafter referred to collectively as “the assets” or “the equipment”)

2)	Pursuant to Order 14 Rule 10(1) of the National Court Rules, that the Defendant deliver up the assets to the Plaintiff forthwith.

3)	Pursuant to Order 14 Rule 10(2) of the National Court Rules that the Plaintiff and/or its duly appointed agents be afforded access to the property of retrieving the assets.

EVIDENCE

4.	The Plaintiff relies on the following affidavits:

1)	The Affidavit of Jacob Tom filed 14 July 2025, Document No. 2;

2)	The Affidavit in Support of Staphanie Andoga filed 14 July 2025, Document No. 3;

3)	The Affidavit in Support of Anthony Roden-Paru field 14 July 2025, Document No. 4;

4)	The Affidavit of Service of Markwell Makap filed 31 July 2025, Document No. 6;

5)	The Further Affidavit in Support of Anthony Roden-Paru filed 5 August 2025, Document No. 7;

5.	The Defendant relies on Doc No. 8, the affidavit in response of Bernard Matambuai.

6.	The dispute between the parties revolves around the properties, mentioned below located on the property described as Allotment 1, Section 164, City of Lae, Taraka, Morobe Province:

1)	Branding, Signage and Paint Work
2)	4 x Multi Hose Product Pumps (Dual)
3)	The Point-of-Sale System – i.e. specialized software and hardware setup that manages sales transactions, fuel dispensing, inventory, and customer interactions
4)	22kVA Generator
5)	Lightspeed Internet Equipment
6)	Totem
7)	Tyre Inflator including hose
8)	Canopy Cladding and Signage
9)	Canopy downlights

7.	Having regard to the totality of the papers/evidence before me the legal issues that falls for determination can be framed as follows:

1)	Whether a declaration should be made as to the ownership of the assets?

2)	Whether the Court should order for the delivery of the assets by Mr. Matambuai to Total?

3)	Whether the Court should order for Total to attend at Taraka Service Station and remove the assets?

8.	It is common cause that on the 8th of November 2021 the Plaintiff entered into a Supply Contract with Chnada, in terms of which the Plaintiff would provide fuel products to Chnada to resell at its retail fuel located on the Taraka Service Station.

9.	Pursuant to the above the Plaintiff provided and installed, among others, the items reflected in paragraph 6 above.

10.	It was an express term of the agreement aforesaid that all equipment provided to Chnada remain the property of the Plaintiff and must be returned at the end of the contract or in case of termination unless the Plaintiff decides to sell them.

11.	The aforesaid contract was terminated by the Plaintiff on the 14th of April 2025.

12.	In terms of the Supply Contract, upon termination, the Plaintiff is or was entitled to remove and repossess all the assets.

13.	Upon termination of the Supply Contract the Plaintiff attempted to remove the assets, but to no avail, as a dispute as to the ownership of the assets - or some of the assets arose. The Plaintiff wrote, several letters/emails to the Defendant, pertaining to the removal of the assets, but the Defendant did not respond to the above correspondence.

14.	The Defendant in his affidavit in response (Doc. 8) avers that:

“All assets in the summons belong to Total Energies but I have a point to make regarding items (h) and (i) in the Originating Summons.”

15.	Items (h) and (i) are Canopy Cladding and Signage and Canopy Downlights.

16.	Essentially, the Defendant says with respect to item (h) that the Plaintiff can remove their signage, but he wants his original Canopy Signage lights to be put back as it was.

17.	With respect to Canopy Downlights the Defendant says that the canopy lights are items promised by Total Energies to improve his property facelift and therefore should not be removed. He says it should remain to compensate for the five (5) years of using his property to make money.

18.	On the evidence, I am satisfied that the Canopy Cladding and Signage and Canopy Downlights (paragraphs 13 & 16 of the Document No. 8) were part of the Supply Contract (Clauses 23.2, 23.5 (A), 23.6 and 28.5 (A)) and therefore belong to the Plaintiff.

THE LAW

19.	It is trite law that the discretion to grant discretionary orders should be guided by the following criteria:

1)	There must exist a controversy between the parties.

2)	The proceedings must involve a right.

3)	The proceedings must be brought by a person who has a proper or tangible interest in obtaining the order.

4)	The controversy must be subject to the court’s jurisdiction.

5)	The defendant must be a person having a proper or tangible interest in opposing the plaintiff’s claim. (Ok Tedi Mining Ltd v Niugini Insurance Corporation (No2) (1988-89) PNGLR 425, Male v Yawii [2022] PGNC 243; N9730, Kariko v Nganagan [2022] PGNC 244; N9731 and Larapa v Puluku [2022] PGNC 214, N9686)

20.	I am satisfied on the evidence, that all the above criteria have been met by the Plaintiff.

21.	In the result, the Plaintiff is entitled to the relief sought.

22.	The court orders that:

a)	Pursuant to Order 4 Rule 2(3)(a) of the National Court Rules, a declaration that the Plaintiff is the owner of the following assets:

i.	Branding, Signage and Paint Work
ii.	4 x Multi Hose Product Pumps (Dual)
iii.	The Point-of-Sale System – i.e. specialized software and hardware setup that manages sales transactions, fuel dispensing, inventory, and customer interactions
iv.	22kVA Generator
v.	Lightspeed Internet Equipment
vi.	Totem
vii.	Tyre Inflator including hose
viii.	Canopy Cladding and Signage
ix.	Canopy downlights

b)	Pursuant to Order 14 Rule 10(1) of the National Court Rules, that the Defendant deliver up the assets to the Plaintiff forthwith.

c)	Pursuant to Order 14 Rule 10(2) of the National Court Rules that the Plaintiff and/or its duly appointed agents be afforded access to the property for the purpose of retrieving the assets.

d)	The Defendant pay the Plaintiff’s costs of the proceedings, to be taxed if not agreed

e)	The Defendant shall pay the Plaintiff cost of this suit as may be agreed or taxed.

f)	Time shall be abridged.
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Lawyers for the appellant/applicant:	 Allens Linklaters	 
Lawyers for the first respondent:	Wang Dee Lawyers