Landu v Kokiva [2022] PGNC 535; N10048 (19 November 2022)

N10048

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 163 OF 2020

BETWEEN

MARTIN LANDU

- First Plaintiff-

AND

BILL ROY ADAMS as the representative of the estate of his mother Late ATO ADAMS

-Second Plaintiff-

AND

HARRIET KOKIVA in her capacity as ACTING REGISTRAR OF COMPANIES

-First Defendant-

AND

INVESTMENT PROMOTION AUTHORITY

-Second Defendant-

Waigani: Tamade AJ

2021: 18^th & 19^th November

LIMITATION OF ACTIONS – claim for interest in company – claim founded on alleged wrongful transfer of shares – claim dates to 1980s - plaintiff acted 33 years later - whether action time-barred – Frauds and Limitations Act, 1988.

Legislation
Companies Act 1997
Frauds and Limitations Act 1988

Counsel:

Mr. Michael Koimo, for the Plaintiff

19^th November, 2021

1. TAMADE AJ: The Plaintiffs in these proceedings are claiming an interest in the company known as Hitron Limited. The Plaintiffs claim that the First Plaintiff was a former director and shareholder of Hitron Limited with the late Mrs. Ato Adams who is the mother of the Second Plaintiff.

2. The Plaintiffs are claiming that their shares in Hitron Limited were wrongfully transferred to John Morgan and Lindsay Jorgensen who were associates and or friends of Theo Adams who was an Australian and the husband of the Late Ato Adams.

3. The Plaintiffs, therefore, claim impropriety on the part of John Morgan and Lindsay Jorgensen in the appointment of these two as shareholders and directors of Hitron Limited on or about 1986 and 1987.

4. The Plaintiffs claim that in 1987, Lindsay Jorgensen and Anne Ames transferred shares in Hitron to themselves without the authority and consent of the First Plaintiff and Mrs. Adams. The Plaintiffs complain that there were never any shareholders’ meetings and or directors’ meetings held for Hitron Limited. This alleged conduct, therefore, prevented the First Plaintiff and Mrs Adams from participating in the business of Hitron Limited and from benefiting from the business.

5. The Plaintiffs then took it upon themselves to write to the Registrar of Companies in 2017 complaining about the records of Hitron Limited and the management and ownership or shareholding of Hitron Limited.

6. This Court can not be blind to the fact that the matters complained of by the Plaintiffs date back to 1984 up until 2017 when the Plaintiffs wrote to the Registrar of Companies. The matters of facts in these proceedings and or matters complained of by the Plaintiff’s as to the records of Hitron Limited held by the Companies Office which did not recognise the First Plaintiff and Mrs Ato Adams as shareholders and directors are clearly time barred pursuant to the Frauds & Limitations Act 1988.

7. By December of 2013, Mrs. Ato Adam was already deceased and the Second Plaintiff Mr. Billy Roy Adams claims to represent the estate of the Late Mrs. Adams. Annexure H of the Affidavit of Martin Landu filed on 21^st December 2020 shows a Statutory Declaration purportedly by the Late Mrs. Ato Adams authorizing her son Billy Roy Adams to take charge of her estate and matters concerning Hitron Limited. The law in relation to deceased estates is very clear. Where a person dies without leaving a will, his or her estate is by law managed by the Public Curator pursuant to the Public Curators Act 1951. In the instance where there is a will and testament of the deceased, an Administrator should be given Letters of Administration by the Court, and the estate is dealt with in that manner. I am not satisfied that the Statutory Declaration purportedly signed by the Late Mrs. Adams is sufficient to grant her estate to one Billy Roy Adams.

8. The Plaintiffs say that after bringing their complaints to the Registrar of Companies regarding the records of Hitron Limited, the Registrar of Companies issued a Notice pursuant to Section 400 of the Companies Act to Hitron Limited adopting all the allegations raised by the Plaintiffs but there was never any independent assessment of the matter by the Registrar as to the allegations of fraud. The letter by the Registrar of Companies sought a response from Hitron Limited within fourteen days from the date of receipt of the letter dated 8^th November 2017. Another notice by the Registrar of Companies was issued in a letter dated 14^th May 2018 to Hitron Limited.

9. Young & Williams Lawyers acting on behalf of Hitron Limited responded to the letters from the Registrar of Companies Office and informed them that civil and criminal proceedings concerning allegations of fraud on appointment and removal of directors, unlawful acquisition of shares, and alleged illicit take-over of Hitron Limited were dismissed by the Courts as having no basis in law. Young & Williams also pointed out to the Registrar on the issue of time limitations in retaining records wherein Hitron Limit will be clearly prejudiced from retrieving records dating back to 1980’s.

10. After communications between Hitron and the Registrar of Companies did not address the Plaintiffs concerns, the Plaintiffs now come to this Court seeking orders to change the company records of Hitron Limited.

11. It is interesting to note that the reliefs sought by the Plaintiff’s in the Originating Summons are as follows:

1. An Order pursuant to Section 395B(1)(2)(3) of the Companies (Amendment) Act 2014 that the record of Hitron Limited held with the Second Defendant and managed by the First Defendant be rectified to include the name of the First Plaintiff and Ato Adams as the original Directors and Shareholders of the HITRON LIMITED pursuant to the Memorandum and Articles of Association of Hitron Pty Ltd dated 27^th November 1981.
   
2. An Order pursuant to Section 71(1)(a) and (2)(a) of the Companies Act 1997, the share register of HITRON LIMITED held with the Second Defendant and managed by the First Defendant be rectified to include the name of the First Plaintiff and Ato Adams as Shareholders pursuant to the Return of Allotment of Shares dated 2^nd November 1982.
   

12. The matters complained of by the Plaintiffs are clearly time-barred and without any legal basis or merit.

13. The allegations of fraud are just that, mere allegations without any finding by a Court of competent jurisdiction.

14. This is a matter that is clearly time-barred and is frivolous and vexatious and a waste of the Court’s time.

15. I, therefore, make the following orders:

(a) The Plaintiff’s claim in these proceedings is refused and thereby these proceedings are dismissed.

(b) The Plaintiffs shall meet any costs incurred by the Defendants in corresponding with the Plaintiffs except as to the hearing of this matter as there was no appearance by the Defendants.

(c) Such costs shall be paid before the Plaintiffs institute any new legal proceedings,

Orders accordingly.

________________________________________________________________
Kipes Law: Lawyers for the Plaintiff