Engcon Ltd v Bruce [2025] PGNC 245; N11401 (14 July 2025)

N11401

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 130 OF 2025

BETWEEN

ENGCON LIMITED
Plaintiff

AND

GEOB BRUCE & SIMEX QUARRY LIMITED
Defendants

Lae: Toliken J
2025: 11, 14 July

PRACTICE AND PROCEDURE – Application for interim injunction – business lease – alluvial mining lease – encroachment to land under business lease by alluvial mining leaseholder – extraction of gravel and sand – dispensation of requirement of service - requirements for dispensation of service, and injunctive relief satisfied – relief granted.

Cases Cited
The Public Prosecutor v The Chief Justice [1992] PNGLR 316
Anthony John Polling v. Motor Vehicles Insurance (PNG) Trust and Bowmans Bougainville Pty Ltd and Bougainville Development Corporation Ltd [1986] PNGLR 228
Kuijk v. Kuijk [1977] PNGLR 253
Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853
Saud v Paining (2015) N5905

Counsel
Kusip J, for the Plaintiff

RULING ON MOTION

14^th July 2025

1. TOLIKEN J: By Notice of Motion dated 25^th June 2025, the Plaintiff seeks the following –
   
   • (1) An order dispensing with the requirement for service pursuant to Order 1 Rule 7 of the National Court Rules.
   • (2) An interim injunction pursuant to Order 14 Rule 9 (a) and Rule 10 (1) of the National Court Rules, restraining the Defendants, their servants, agents, associates, relatives and friends and whosoever from dealing with the subject property described as Portion 438, Milinch Bulolo, Volume 19, Folio 154. Fourmil of Wau, Morobe Province in any way, form or manner until [the] substantive [proceeding] is determined.
   • (3) Such further order the Court may [deem] proper under Order 12 Rule 1 of the National Court Rules.
   • (4) Costs be in the cause.
   • (5) Time be abridged.
   • (6) Any other orders this court deems fit.
     

Background

2. The Plaintiff is the legal proprietor of property described as Portion 438, Milinch Bulolo, Fourmil of Wau, Volume 19, Folio 154, Golden Pine, Bulolo District, Morobe Province. It holds a 99-year Business (Commercial) Lease issued on 3^rd day of October 2011 over the said property.
   
3. The First Defendant holds an Alluvial Mining Lease (AML) No. 1050 granted by the Minister for Mining on 16^th May 2024 purportedly over the same property.
   
4. The Plaintiff alleges that the Defendants have trespassed or illegally entered his titled property and are excavating sand and gravel for gold and in the process causing extensive damage to the said property.
   
5. Despite numerous calls by the Plaintiff to the Defendants to vacate the property, the Defendants have allegedly refused to do so. Hence, the application for interim injunction.
   
6. I heard the application on 11^th July 2025 and reserved to today for ruling. This is my short ruling.
   

Issues

7. There are two issues to determine. These are –
   
   1. Should service be dispensed with?
   2. Should interim injunction be granted?
      

Relevant Evidence

8. The Plaintiff relied on the Affidavit in Support by Robin Yalambing sworn on 23^rd June 2025 and filed on 25^th June 2025, and his Supplementary Affidavit filed on 27^th June 2025. Mr. Yalambing is the Managing Director of the Plaintiff Company.
   
9. The following relevant facts are deduced from the affidavit evidence.

The Plaintiff Company holds a 99-year Business Lease to the property described as Portion 438, Milinch of Bulolo, Volume 19, Folio 154, Fourmil of Wau, Bulolo, Morobe Province. The Lease was granted on 3^rd October 2011.

10. The First Defendant holds an Alluvial Mining Licence (AML) No. 1050 issued by the Minister for Mines on 16^th May 2024. The First Defendant soon thereafter engaged the Second Defendant as investment partner.
    
11. The surveyed boundaries of the Plaintiff’s and the First Defendant’s Leases are clearly delineated and described in Schedule 1 to the AML. The AML comprises a total area of 5 hectares. It does not overlap with the Plaintiff’s Lease.
12. Some time prior to 7^th May 2025, the Defendants entered the Plaintiff’s property without its knowledge and authority and since then has been conducting mining activities on the property. The defendants are conducting mechanized mining. They moved heavy machinery and equipment onto the property and are extracting gravel and sand, causing extensive damage and destruction to the Plaintiff’s land in the process. The Defendants have not heeded the Plaintiff’s demands through Mr. Yalambing to vacate the land.
    
13. Mr. Yalambing engaged a Surveyor, Mr. Harry Aope for an Identification Survey. Mr. Aope conducted the survey on 7^th June 2025. His report dated 13^th June 2025 reveals that there was a slight encroachment of 3.690square meters into Portion 438.
    
14. The First Defendant continues to refuse to vacate the land or stop his activities claiming that the land is customary land owned by a clan to which he is a member.
    
15. I now move to the Motion.
    

A: Dispensation of Requirement of Service

16. Pursuant Order 1 Rule 7 of the National Court Rules, the Court has the power to dispense with the requirements of the Rules either before or after the need to comply has arisen.
    
17. In deciding whether to exercise its discretion to dispense with the requirements of the Rules, the court must have regard to the following –
    
    • (i) the urgency of the matter.
    • (ii) the interests of justice.

(iii) the impact of the non-compliance on the parties with reference to whether the other party is in as good a position as if the rules had been complied with, or whether the party has been disadvantaged in regard to its rights in the matter.

• (iv) whether the application for dispensation is made within a reasonable time and whether the intended and or the purpose of the rule in question has been met. (The Public Prosecutor v The Chief Justice [1992] PNGLR 316; Anthony John Polling v. Motor Vehicles Insurance (PNG) Trust and Bowmans Bougainville Pty Ltd and Bougainville Development Corporation Ltd [1986] PNGLR 228; Kuijk v. Kuijk [1977] PNGLR 253).
  

18. There is urgency in the matter. There is no inordinate delay in filing for injunctive relief and the interest of justice, and that of the Defendants will not be disadvantaged substantially with dispensing the requirement for service. The requirement for service of this Motion on the Defendants is hereby dispensed with.
    

B: Grant of interlocutory Injunctive Relief

19. The power to grant interim injunctions is discretionary, but essentially the Plaintiff must satisfy the Court of the following:
    
    • (a) whether there are serious questions to be tried and if an arguable case exists?
    • (b) whether an undertaking as to damages has been given?
    • (c) whether damages would be an inadequate remedy if the interim injunction is not made?
    • (d) whether the balance of convenience favour the granting of interim relief?
    • (e) whether the interests of justice require that the interim injunction be granted?

(See Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853; Saud v Paining (2015) N5905)

20. I address these requirements individually.
    
    • (a) Serious Questions to be Tried - Arguable case
      
21. The Plaintiff has satisfied me that it is the registered owner of the property in question and that the First Defendant holds an Alluvial Mining Licence to adjoining land. There is prima facie evidence that the Defendants have encroached into the Plaintiff’s land by about 3.690sq meters and have been, and continue to conduct alluvial mining within the disputed area – an area which the First Defendant claims to be customary land owned by his clan. The First Defendant has refused to heed calls by the Plaintiff to vacate.
    
22. There is an arguable case as there are serious issues to be tried.
    
    • (b) undertaking as to damages
      
23. The Plaintiff has filed an undertaking as to damages. This requirement has been met.
    
    • (c) Adequacy of Damages as a Remedy
      
24. The Defendants are conducting mining operations and have prima facie encroached on to the Plaintiff’s land. They have been extracting gravel and sand from the land for some time now. There is no telling how much gold would have been and continue to be redeemed from these raw materials, not to mention the destruction to the Plaintiff’s land. The Plaintiff stands to suffer substantial loss for which damages will be inadequate should an injunction is refused.
    
    • (d) Balance of Convenience
      
25. This clearly is a case in which the balance of convenience weighs in favour of grant of interim injunctive relief. As noted above the Defendants continue to mine on the disputed area and if not injuncted, will continue with their activities to the Plaintiff’s detriment.
    
26. The Defendants will not lose anything should the matter be finally decided in their favour. However, the Plaintiff will suffer immeasurable financial loss from loss of valuable materials extracted from land, not to mention the extensive destruction and damage to its land.
    
    • (e) Interest of Justice
      
27. The interest of justice clearly weighs in favour of granting the interim injunctive relief sought by the Plaintiff in its Notice of Motion.
    

ORDERS

1. Pursuant to Order 1 Rule 7 of the National Court Rules, the requirement for service of the Plaintiff’s Notice of Motion dated 25^th June 2025 is dispensed with.
2. Pursuant to Order 14 Rule 9 (a) and Rule (10) (1) of the National Court Rules, the Defendants, their servants, agents, associates, relatives and friends and whosoever are restrained from dealing with the subject property described as Portion 438, Milinch Bulolo, Volume 19, Folio 154. Fourmil of Wau, Morobe Province, in any way, form or manner until substantive proceeding is determined.
3. The Plaintiff shall serve all documents including the Notice of Motion dated 25^th June 2025 and these Orders to the Defendants without undue delay.
4. The matter shall return for inter partes hearing 11^th August 2025 at 1.30pm.
5. Time for entry of judgment is abridged to take place forthwith.
   

Ordered accordingly.

Lawyer for the Plaintiff: Kusip Lawyers