Tambua v First Investment Finance [2007] PGDC 74; DC622 (11 May 2007)

DC622

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 436 of 2006

BETWEEN

DICKSON TAMBUA
Plaintiff

AND

FIRST INVESTMENT FINANCE
Respondent

Goroka: G Vetunawa
2007: February 22; March 22, 29,
May 02, 11

Cases Cited
Nil

References
Nil

Counsel
Plaintiff: Present in Person
Respondent: Koiya J. Peri of Warner Shand Lawyers

JUDGMENT

G Vetunawa: The plaintiff sued the respondent seeking a restraining order to restrain the respondent company and its agents and servants from repossessing a motor vehicle a white Toyota Hiace 15 seater bus Registration No. P.0143A.

2. The background of the dispute is that the plaintiff entered into commercial loan and chattel mortgage agreement in which the plaintiff paid thirty one thousand kina cash and loaned the other thirty one thousand kina from the respondent in a complex agreement term. One of the terms is that the respondent would repossess the vehicle if the plaintiff defaults in repayment of the loan. It happened that the motor vehicle got involved into a serious accident which caused serious damages to it. This has caused the plaintiff to default in the repayment of the loan and the respondent repossessed the vehicle as agreed upon by both parties. The plaintiff instituted this proceeding seeking to restrain the respondent company from repossessing the motor vehicle. Whilst this proceeding was pending the respondent repossessed the motor vehicle. The plaintiff then filed a motion seeking the same remedy of restraint, but the court was never told that the vehicle had already been repossessed by the respondent. The plaintiff acted as if the vehicle was still with him. This could be a deceitful behaviour before the Court. The plaintiff was granted the restraining order thinking that the vehicle was still with the plaintiff.

3. In this proceeding the respondent company argued that this case has no substance on the basis that the plaintiff was already granted the remedy he is seeking here. Secondly there was no need for the plaintiff to seek the remedy of restraint because the respondent had already repossessed the vehicle four days before the restraining order was granted in the motion application.

4. I would uphold the argument by the respondent that the remedy of restraining order is not necessary because the motor vehicle is not with the plaintiff. It had already been repossessed by the respondent and therefore the plaintiff should seek other remedies that may be available to him in law. A restraining order would only be relevant if the motor vehicle was still in the possession of the plaintiff. As well the plaintiff had deceived the court in the motion application when he deliberately failed to inform the Court that the vehicle had already been repossessed by the respondent company. Even if the motor vehicle was still in the possession of the plaintiff at the time he filed the motion seeking restraining order, which was granted to him, this proceeding would still be not necessary because plaintiff would have got the remedy already. On the basis of the above arguments this case be dismissed and parties pay their own costs.

Plaintiff: In person
Respondent: Koiya J. Peri of Warner Shand Lawyers