Angore Corporation Ltd v Hondomo [2013] PGNC 339; N5380 (3 October 2013)

N5380

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 200 OF 2012

BETWEEN:

ANGORE CORPORATION LIMITED
First Plaintiff

AND:

PETER MONDORO, JOE HAPOKAIA, PETER PHILLIP, GIBSON IRAI, and PAUL 1RABE
Second Plaintiffs

AND:

TOBIAS HONDOMO
First Defendant

AND:

HAGUAI HARAWI
Second Defendant

AND:

TIMAN TUBU
Third Defendant

Waigani: Hartshorn J.
2013: May 8th,
: October 3rd

Trial

Cases cited:

Pora Wan Pty Ltd v. Kop (1996) N1485
Magasaki v. Bai (2007) N3221

Counsel:

Mr. L. A. Kari, for the Plaintiff

3rd October, 2013

1. HARTSHORN J: The plaintiffs' seek declaratory and other relief to the effect that a purported notice of an annual general meeting of the first plaintiff Angore Corporation Ltd (ACL) that was published in the Post Courier newspaper on 13th March 2012 was illegal and of no effect and that a purported meeting held on 7th April 2012 was null and void as are any decisions and resolutions made at that purported meeting.

2. I allowed the trial to proceed in the absence of the first and third defendants (the proceeding having been discontinued against the second defendant) as I was satisfied that the lawyers for the first and third defendants' have been served with an order of this court dated 14th March 2013 and entered on 18th March 2013. Paragraph 1 of that order is that this matter is fixed for trial on 8th May 2013 at 9:30 am. I was satisfied as to service of the order by virtue of two affidavits of one Sirus Mambil, both sworn on 21st March 2013 and filed on 25th March 2013.

3. The second plaintiffs are directors of ACL. That this is so is recorded in a certified true copy of an extract from the Registrar of Companies for ACL dated 13th April 2012. This is annexed to an affidavit of one of the second plaintiffs, Peter Monodoro. Further, in an affidavit of the first defendant Tobias Hondomo, there is annexed an extract from the Companies Office dated 15th August 2012 which also evidences that the second plaintiffs are directors of ACL. Although this affidavit was not admitted into evidence, there being no appearance on behalf of the first defendant, it was referred to in one of the affidavits of Peter Mondoro.

4. The plaintiffs contend that a purported notice that an Annual General Meeting of ACL that was to be held on 6th April 2012 that was advertised in the 13th March 2012 edition of the Post Courier is illegal. This is because it was contrary to the provisions of the constitution of ACL and the Companies Act.

5. Pursuant to clause 7.2 constitution, a special meeting of shareholders may be called at any time by the Board or must be called by the Board on the written request of a certain percentage of proxy representatives. Pursuant to clause 7.4, written notice of the time and place of a meeting of shareholders must be given in accordance with the Companies Act and the company constitution. Section 101 (1) Companies Act requires that a board of a company call an annual meeting of shareholders.

6. It is clear from a perusal of the purported notice that was published in the Post Courier, that it was not called by the current Board of ACL but by persons who are not listed as current directors or shareholders of ACL in the certified true copy of the extract for ACL from the Registrar of Companies.

7. In such circumstances, a meeting of shareholders convened without compliance with the Companies Act and the constitution of the company if it has one, renders such a meeting invalid and resolutions passed therein are also invalid. In this regard I refer to the case of Pora Wan Pty Ltd v. Kop (1996) N1485.

8. In the later case of Magasaki v. Bai (2007) N3221, Lay J also found amongst others, that because the notice of meeting was completely invalid, it not being in writing, and given by Board members, the resolutions passed at the purported meeting were not resolutions of the shareholders. Consequently the respondents in that case were not duly elected as directors and they had no authority to file notice with the Registrar of Companies of change of directors.

9. In the circumstances I am satisfied that the plaintiffs' have made out a case against the first defendant, but not the third defendant as he is not named in the purported notice of meeting advertised on 13th March 2012 or the notice that appeared in the Sunday Chronicle dated 14th October 2012 which is in evidence. The first defendant however was named in the latter notice and has filed an affidavit which indicates his involvement such that he is properly named as a defendant.

Orders

10. The Orders of the Court are:

1. It is declared that:
   

i) the notice for the calling of a meeting of Angore Corporation Ltd that was published in the Post Courier newspaper on 13th March 2012 is unlawful and of no effect.

ii) the purported meeting of or relating to Angore Corporation Ltd on 7th April 2012 is null and void.

iii) any changes in directorships or any other resolutions purportedly made at the meeting on 7th April 2012 referred to in (ii) above are null and void.

iv) all or any documents that have been lodged with the Registrar of Companies as a result of the meeting referred to in (ii) above are unlawful and it is ordered that any such documents shall be removed, deregistered and cancelled by the Registrar of Companies forthwith.

b) The first defendant is restrained from holding himself out as a director or executive of Angore Corporation Ltd.

c) The first defendant shall pay the plaintiffs' costs of and incidental to this proceeding.

d) Time is abridged.

_________________________________________________________
PNG Legal Services: Lawyers for the Plaintiff
Steeles Lawyers: Lawyers for the First Defendant
Nandape & Associates: Lawyers for the Third Defendant