Kopu Trading v Papua New Guinea Harbours Board [2005] PGDC 50; DC212 (2 September 2005)

DC212

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2454 OF 05

BETWEEN

Kopu Trading
Complainant

V

Papua New Guinea
Harbours Board
Defendant

Port Moresby: Bidar, Pm
2005: 24th August & 2nd September

District Court – Practice And Procedures – Application By Notice Of Motion To Set Aside Ex-Parte Order Of 12th July 2005 And Dismissal Of Proceeding - District Court Act, S.25

Counsel
H. Kila for Applicant/Defendant
T. Kirio for Respondent/Complainant

RULING

2nd September, 2005

BIDAR, PM: On 16th August 2005, the Applicant through its lawyers filed application by way of notice of motion seeking these orders:

"1. The ex-parte order of 12th July 2005, obtained by the respondent be set aside in its entity

2. The entire proceedings be dismissed as there is no reasonable cause of action.

3. The Complainant/Respondent bears the costs of and incidental to this application and the proceedings such further orders as the Court deems fit."

To understand the orders sought by the applicant/defendant, it is appropriate to state briefly the background to those proceedings.

On the 12th July 2005, Complainant filed summons upon Complaint against the defendant among other things breach of sub-lease agreement entered into between the Respondent and the applicant on or about 28th November 2001, over section 53 allotment 8 Vilinch of Granville, Port Moresby, for a period of three years.

Under clause 6 of the Sub-lease agreement which came into effect on 1 March 2001 and expired on 1st March 2004, Clause 6 (d) stipulated that in the event of Lessee holding over after the expiration of sooner determination of the term of the sub-lease with the consent of the lesser the lessee shall become a monthly sub-tenant only of the lesser at a monthly rental equivalent to a monthly proportion of the fatal annual rent payable.

Under clause 9.1 of the sub-lease it was the term of the agreement that if the lessee wishes to renew the sub-lease for a further term as specified under item 11 of the schedule, shall give to the lesser not late than three months notice paid to the expiration of the further term in item 6 of the sub-lease.

The sub-lease cause into force and effect on 1st March 2001 for three years and expired on 1st March 2004. If the complainant intended to renew the lease, he should have given notice to the Defendant on or about 1st December 2003, which is three months before the expiry of lease on 1st March 2004.

In this case complainant gave notice to the Defendant on 8th February, 2005, which was about eleven (11) months after the expiry of the lease. This accounted to the breach of the covenant of the lease. Complainant was also in breach of the covenant of the lease under clause 4(b) when he made improvements to the disused property

In support of the orders sought Defendant enters on the affidavits of the Vinyl sworn of 10th August 2005 and filed on 16th August 2005.

Upon reading the affidavits and terms of the lease agreement and listening to submissions by counsel I am firmly of the view that, Complainant has miscounted the terms of the lease agreement. First of all the option to renew under clause 6 of the agreement which is subject to agreement by both parties and cannot be a unilateral decision.

In this case, there is no agreement by defendant to renew the lease.

Secondly, Complainant had not given notice to renew lease three months prior to expiry of the existing lease. Even if the complainant did give notice three months paid to expiry of the existing lease. The defendant might not have agreed due to changes in the circumstances of PNG Harbours Board and the requirements of the International Supplying and Port Security Call (ISPSC) where ventures such as tucker shops are forbidden within a Port area.

In all the circumstances, I grant the motion by defendant. I make the following orders:

1. The ex-parte order of this Court dated 12th July, 2005 is set aside

2. Costs to be in the cause

3. The substantive matter is adjourned to 15th September 2005, at 9:30 am for mention.

Rules accordingly