Shengtai Investments Ltd v Chen Jing [2015] PGNC 104; N6009 (2 April 2015)

N6009

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 48 OF 2014

BETWEEN:

SHENGTAI INVESTMENTS LIMITED
Plaintiff

AND:

CHEN JING (also known as FRANKIE CHEN)
First Defendant

AND:

CHEN XIAO JING (also known as SUSAN CHEN)
Second Defendant

AND:

MIRIAM CHEN
Third Defendant

Waigani: Hartshorn J.
2014: 19th May,
2015: 2nd April

Application for Contempt

CONTEMPT – plaintiff makes application seeking orders for contempt against defendants – nature of contempt stemming from failure to comply to restraining order issued by court on behalf of plaintiff – elements to prove to succeed in application for contempt discussed - order must be unambiguous, failure to obey the terms of the order must be wilful and the standard of proof is beyond reasonable doubt – plaintiff falls short of proving these elements – contempt proceedings dismissed
Cases cited:

Yap v. Tan [1987] PNGLR 227
Ross Bishop and Ors v. Bishop Bros Engineering Pty Ltd [1988-89] PNGLR 533

Counsel:

Mr. J. Sirigoi, for the Plaintiff
Mr. E. Asigau, for the Contemnors

2nd April, 2015

1. HARTSHORN J: The plaintiff seeks orders that the three defendants, the contemnors, be found guilty and punished for contempt of court for failing to comply with a court order that was made on 18th February 2014 (Restraining Order). The contemnors deny the charge. The specific order with which the plaintiff alleges the contemnors have failed to comply is:

"Pursuant to Order 4 Rule 37 NCR, an interim Order restraining the Defendants whether by themselves, their agents or servants from holding themselves out as owners of the Malalaua Supermarket and from further managing and operating the business until further Orders of this Court."

2. To succeed on a charge for contempt of an order of the court, the Supreme Court held in Ross Bishop and Ors v. Bishop Bros Engineering Pty Ltd [1988-89] PNGLR 533, amongst others, that the order must be unambiguous, the failure to obey the terms of the order must be wilful and the standard of proof is beyond reasonable doubt.

3. The plaintiff relies upon three and the contemnors rely upon four affidavits.

4. It is not disputed that the contemnors have been served with a copy of the Restraining Order.

5. It is submitted on behalf of the plaintiff that even after the service of the Restraining Order the Malalaua Supermarket continued to operate until at least the application for contempt was filed, in contravention of order three of the Restraining Order.

6. The defence of the contemnors that they did not manage and operate the supermarket as they are not its owners, is mere semantics, submits the plaintiff. Order three of the Restraining Orders is against the defendants, whether by themselves, their agents or servants.

7. Further, it is submitted that if there was doubt as to the exact terms or meaning of the orders, the contemnors should have sought clarification from the court. Reference was made to the decision of Yap v. Tan [1987] PNGLR 227 in which the court stated that it is the obligation of every person against whom an order is made to obey the order until it is discharged. In this instance, the evidence is clear submits the plaintiff, and the contemnors should be found guilty.

8. Counsel for the contemnors submitted that order three of the Restraining Order does not require the closure of the supermarket and only restrains the contemnors by themselves, their agents or servants from holding themselves out as owners and from further managing and operating the business.

9. The only evidence against the contemnors is that of Auari Alex. He deposes that amongst others, the supermarket has continued to open since he saw court documents being served upon the contemnor Susan Chen on 21st February 2014. He does not depose that any of the contemnors held themselves out or continue to hold themselves out as owners of the supermarket. Further submits counsel for the contemnors, there are no admissions by the contemnors in respect of the Restraining Orders.

Consideration

10. From a perusal of the evidence against the contemnors in the affidavit of Auari Alex, it falls short of proving that any of the contemnors whether by themselves, their agents or servants held themselves out as owners of the subject supermarket or that they managed or operated the business. In fact there is no evidence as to any of these matters. The evidence concerning the supermarket remaining open after the Restraining Order was served has negligible relevance as order three of the Restraining Order does not prohibit the supermarket from opening.

11. It is correct that the contemnors could have sought clarification from the court as to the meaning of the Restraining Order, but that does not relieve the plaintiff from having to prove beyond reasonable doubt that the contemnors have wilfully contravened the Restraining Order.

12. Consequently, I am satisfied that the notice of motion of the plaintiff seeking contempt orders should be dismissed.

Orders

13. The formal Orders of the Court are:

a) The notice of motion of the plaintiff filed 6th March 2014 is dismissed;

b) the three contemnors are discharged;

c) the plaintiff shall pay the contemnors' costs of and incidental to the notice of motion;

d) time is abridged.

____________________________________________________________
Sirigoi Lawyers: Lawyers for the Plaintiff
Pacific Legal Group Lawyers: Lawyers for the Contemnors