Magellan Properties Ltd v Steamships Trading Company Ltd [2012] PGNC 59; N4734 (24 July 2012)

N4734

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 421 OF 2012

BETWEEN

MAGELLAN PROPERTIES LIMITED
First Plaintiff

AND

BISMARK MARITIME LIMITED
Second Plaintiff

AND

STEAMSHIPS TRADING COMPANY LIMITED
Defendant

Waigani: Makail, J
2012: 20th & 24th July

PRACTICE & PROCEDURE - Application for interim injunction - Discretionary - Serious issue raised - Property dispute - Dispute over boundaries of land - Nuisance - Right to quite enjoyment - Interference with - Legal and commercial interests - Competing interests - Balance of convenience - Weighing of - Tipping of scale - Concession by one party - National Court Rules - O 12, r 1 & O 14, r 10.

Cases cited:

Ramu Nico Management (MCC) Limited & Ors -v- Eddie Tarsie & Ors (2011) SC1075
Louis Medaing & Ors -v- Ramu Nico Management (MCC) Limited & Ors (2011) N4340

Counsel:

Mr K Iduhu, for Plaintiffs
Mr G Poole, for Defendant

RULING ON APPLICATION FOR INTERIM INJUNCTION

24th July, 2012

1. MAKAIL, J: There are two applications before the Court for determination. They are:

1.1 The plaintiffs' amended notice of motion filed on 18th July 2012 seeking an interim injunction to restrain the defendant from removing and/or placing any vessel from within 20 metres of the front and 30 metres of the side of the first plaintiff's land and erecting, installing, placing or building any beams, wharf or structure in the water within 20 meters from the front or within 20 metres of the side of the first plaintiff's land at allotment 6, section 53, Granville, and contained in State lease Volume 28 Folio 6833; and

1.2 The defendant's notice of motion filed on 20th July 2012 also seeking an interim injunction to restrain the plaintiffs from interfering with its land at Portion 773 and interfering, harassing, or hindering it, its members, employees, agents or contractors in the construction of the water pilled parking structure on its land or building development on its land generally.

2. Both applications are made under O 12, r 1 and O 14, r 10 of the National Court Rules. According to the affidavit of Hamish William Sharp filed on 12th July 2012, supplementary affidavit of Hamish William Sharp sworn on 20th July 2012 and affidavit of Darren Young filed on 20th July 2012, the first plaintiff is the registered proprietor of a State lease described as allotment 6, section 53, Granville and the second plaintiff utilises the land for the purpose of loading and unloading cargoes from its vessels for nearly 20 years consecutively with no dispute as to ownership of the land or its boundaries by any person or corporation. The defendant is the lessee of a land described as Portion 773, Granville pursuant to a Special Purpose Lease dated 06th August 1991 for a term of 99 years from 19th April 1990 until 19th April 2089. These two portions of land are adjacent to each other and located at the waterfront along Stanley Esplanade in down town Port Moresby.

3. On Thursday 05th July 2012, the defendant started erecting steel pilings next to the land of the first plaintiff. On Saturday 07th July 2012, another piling was erected directly in front of the first plaintiff's land about 2 metres within the boundary fence and directly within the area the second plaintiff uses to bring vessels alongside the wharf. On Sunday 08th July 2012, a vessel called MV Hiri Chief anchored in front of the land and positioned 4 metres out from the wharf and within the boundary fence of the land. On Monday 09th July 2012, another vessel called OK Menga anchored alongside the pilings. As the second plaintiff's crane was positioned across the area, the vessel could not be put closer to the first plaintiff's wharf.

4. The defendant acquired its lease on 22nd September 2009. The plan on its lease is subject to survey. Subsequent to that, it made plans to develop it. It sought and obtained approval from all relevant government authorities for the development. The approvals were from the NCD Planning Board, NCD Building Authority and Environment Permit from the Director of Environment. On 17th May 2012, it also obtained a survey from Arman Larmer Survey Limited for the development. Part of the development plan includes an overwater piled parking structure on its land. It claims that the overwater piled parking structure is completely within its land boundaries for which it has building approval.

5. It concedes the structure may inhibit the second plaintiff's marine vessels from accessing their loading ramp, even though part of the first plaintiff's wharf is encroaching on its land. Attempts to reach an agreement between the parties failed and the defendant moved the MV Hiri Chief in place on its land on Saturday 07th July 2012. It remained in place for 2 days. Subsequently, on the evening of Monday 09th July 2012, the plaintiffs moved their MV Lihir Express over the defendant's land and it has remained there to date.

6. Counsel for the parties have canvassed the principles on injunctions in their submissions and I need not repeat them, suffice to say the Court's power to grant an injunction is discretionary and the onus is on the party seeking it to establish a case for the exercise of discretion in its favour. In the present case, it is clear there is a dispute in relation to the boundary of the two portions of land because they are adjacent to each other. Either party has alleged the other is encroaching on its land. There is the plaintiffs' interest to protect, their interest being a wharf for vessels to berth and there is the defendant's interest to consider, it being the proposed development of the water front by turning it into an overwater piled parking structure. These two interests have collided because as I said, either side says, its land has been encroached by the other.

7. The plaintiffs say they have a valid lease which gives them a right of quiet enjoyment. When the defendant started putting up or placing pilings on the water front next to their land, hence preventing or hindering their marine vessels free access to the wharf and loading ramp, it has interfered with their right of quiet enjoyment. Conversely, when the plaintiffs anchored one of their vessels alongside the pilings and positioned a crane across the area, hence preventing or hindering the defendant's vessel to berth and construction work to continue, they have interfered with its right of quiet enjoyment. In other words, either side say that the other's action is a nuisance and the Court should intervene and stop it.

8. I accept the defendant has planning permission, and related approvals, for the development of its land. It claims statutory authorisation as a defence to any claim for nuisance and therefore the plaintiffs have no right to restrain an activity that is expressly permitted and authorised by law: Ramu Nico Management (MCC) Limited & Ors -v- Eddie Tarsie & Ors (2011) SC1075. see also Louis Medaing & Ors -v- Ramu Nico Management (MCC) Limited & Ors (2011) N4340.

9. But it is also clear from the copy of the defendant's lease that the lease is subject to survey. According to the survey done by Arman Larmer Surveyors, the boundary of the defendant's land has been extended to the water (sea). As for the plaintiffs, according to the map of the first plaintiff's lease, its land area includes the wharf. The wharf is about 18 metres long. The distance from the western side of the wharf to the boundary of the defendant's land is about 14 metres. The area beyond the water (sea) is the subject of the dispute. Based on the survey of the boundaries of the defendant's land, the defendant proposes to construct the overwater piled parking structure which includes this area. The area is adjacent to the first plaintiff's wharf and the photographs show that the steel pilings are positioned near the wharf. This has created a narrow gap for the second plaintiff's vessels to move in to berth at the wharf.

10. The question is, is the defendant's action unreasonable, unwarranted, or unlawful given that the plaintiffs also use that part of the area to berth their vessels for loading and unloading of cargoes? In my view, this raises a serious issue in relation to the boundary of these portions of land. These competing interests raise a serious issue in relation to whose interest prevails.

11. With regards to the balance of convenience consideration, it is not disputed that the plaintiffs use the wharf for the second plaintiff's vessels to berth, unload and load their cargoes. It has been using the wharf for the past 20 years. If the defendant is allowed to put up or place the pilings within 20 metres from the wharf, they would prevent or hinder the vessels free access to berth, unload and load their cargoes. This will result in the plaintiffs losing money. The defendant also says that it will lose K15,000.00 per day if there is a delay as it has secured a contractor to construct the overwater piled parking structure and will be in breach of the contract if it is stopped from completing the work. To my mind, both parties have a commercial interest in each portion of land.

12. In my view, the plaintiffs' and defendant's legal and commercial interests are on equal footing but the factor that tips the scale in favour of the plaintiffs is that, they have made a concession by suggesting that if the Court is inclined to grant an interim injunction in their favour, the injunction should cover up to 20 metres from the back and side of the wharf. In other words, the plaintiffs are not asking the Court to completely stop the defendant from carrying out its development. It can carry out is work on its proposed overwater piled parking structure so long as it is at least 20 metres away from the plaintiffs' land.

13. In the circumstances, I grant the plaintiffs' application and refuse the defendant's application. The orders I make are:

1. The defendant shall immediately and forthwith remove any vessel from within 15 metres of the front and 15 metres of the side of the first plaintiff's land at allotment 6, section 53, Esplanade Road, Port Moresby.
   
2. An interim injunction restraining the defendant from moving or placing any vessel within 15 metres of the front and 15 metres of the side of the first plaintiff's land at allotment 6, section 53, Esplanade Road, Port Moresby.
   

3. An interim injunction restraining the defendant, its agent, servants and whosoever acting on its behalf from erecting, installing, placing or otherwise building any beams, wharf or structure in the water 15 metres of the front and 15 metres of the side of the first plaintiff's land at allotment 6, section 53, Esplanade Road, Port Moresby.

4. The matter returns for directions hearing on Tuesday 07th August 2012 at 9:30 am.

5. Costs of both applications shall be in the cause.

6. Time for entry of this order shall be abridged to the date of settlement by the Registrar which shall take place forthwith.

____________________________________

Fairfax Legal: Lawyers for Plaintiffs
O'Briens Lawyers: Lawyers for Defendant