Mokz Development Ltd v Bore [2025] PGNC 333; N11474 (8 September 2025)

N11474

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS (RECC) No. 12 OF 2025 (IECMS)

BETWEEN:
MOKZ DEVELOPMENT LIMITED
Plaintiff

AND:
MANAKA BORE IN HIS CAPACITY AS CHAIRMAN OF GOROHA LAND GROUP INCORPORATED
First Defendant

AND:
GOROHA LAND GROUP INCORPORATED
Second Defendant

AND:
JOSEPH WANI VAILALA IN HIS CAPACITY AS MANAGING DIRECTOR OF DELKA LIMITED
Third Defendant

AND:
DELKA LIMITED
Fourth Defendant

WAIGANI: ANDELMAN J
2, 8 SEPTEMBER 2025

INTERIM MANDATORY INJUNCTION - consideration for granting – strong case that plaintiff will succeed at trial and that damage will occur – balance of convenience – damages adequate remedy – adopt course of least damage – abuse of process – previous proceedings dismissed for want of prosecution

Facts
The applicant operates a quarry on land it has leased from the second respondent. On 30 June 2025 the respondents locked some of the land on which workers that operated the quarry were housed. The quarry continues to operate. The applicant sought a mandatory injunction for the respondents to remove all locks, obstructions or barriers placed by them or their agents at the property.

Held
The applicant has failed to satisfy the court that the balance of convenience is in its favour, particularly that damages are not an adequate remedy.

Cases cited
GR Logging Ltd v Dotaona [2018] PGSC 34; SC1690
Yama Group of Companies Ltd v PNG Power Ltd [2005] PGNC 128; N2831

Counsel
Mr A Chillion for the applicant
Mr J Palek for the respondents

1. ANDELMAN J: This is a ruling on an application for interim injunctive orders by the applicant against the respondents (Or 4 R 39 National Court Rules 1983) by way of a Notice of Motion filed on 22 August 2025 (Notice of Motion).
   
2. The Notice of Motion was accompanied by:
   1. A writ of summons with a statement of claim.
   2. Affidavit of Mr. Asher Chillions, the solicitor for the applicant,
   3. Affidavit of Richard Rema, the operational manager of the applicant's company and
   4. Undertaking as to damages.
      
3. On 29 August 2025 the court made orders in chambers that the applicant’s Notice of Motion was to be heard on 2 September 2025 and that the applicant should immediately inform the respondents in writing regarding the listing and serve on the respondents all court documents and the terms of these orders. The applicant complied with the orders.
   
4. The applicant’s application essentially seeks the following orders apart from the order seeking a dispensation of the requirement of the National Court Rules 1983 (Rules) in relation to service of the application:
   1. Pursuant to Or 12 R 1 of the Rules the respondents, its’ servants and agents, pending the final determination of these proceedings are restrained from;
      1. Entering on portion 2876C Bautama Central Province (the Land) including any of the land leased by the applicant from the second respondent within the vicinity of the Land and evicting the applicant, its employees, servants and agents;
      2. Issuing threats of violence or any sort of threats to cause fear on the applicants’ management and its employees;
      3. Issuing any threats by letter to evict the applicant or to remove any improvements, buildings or structures built by the applicant;

2. An interlocutory mandatory injunction directing the respondents and their servants and agents to unlock the gates leading to portion of the Land within the next 48 hours from the date of this order and to allow the applicant’s employees to have unhindered access to the premises therein.
   

Facts of the Case

5. The brief history of this matter is that:
   
   1. On the 3 November 2011 the applicant entered into the Memorandum of Understanding with the second respondent to lease land including the portion 2876C;
   2. On 26 May 2014 the applicant and the second respondent entered into a sublease to use some of the land for commercial activities;
   3. On 20 August 2024 the third respondent using the letterhead of the fourth respondent sought to terminate the Memo of Understanding and the sub lease with the applicant;
   4. On the 22 November 2024 the applicant commenced court proceedings in this court;
   5. On the 5 January 2025 this court dismissed the application for want of prosecution;
   6. On the 23 June 2025 the applicant received a letter threatening eviction;
   7. On the 30 June 2025 the respondents locked the applicant out of the leased land which housed some workers; and
   8. On 22 August 2025 the applicant filed a summons application.
      
6. The statement of claim pleads that the third and fourth respondent in issuing the purported termination letter dated 20 August 2024 unlawfully interfered in contractual relations with the applicant. It is also pleaded that the first and second respondents trespassed onto the Land and thirdly that the respondents owned the applicant a duty of care not to interfere unlawfully or negligently with the applicant’s contractual relations based on the Memo of Understanding and the sub lease agreement.
   
7. The final orders sought by the applicant are that the declaration be issued that the Memo of Understanding and the sublease dated 26 May 2014 are valid and binding. The applicant also seeks damages, interest and costs.
   
8. The evidence as to the business is contained in the affidavit of Richard Rema the Operational Manager of the applicant's company. The applicant is the operator of a quarry. It engaged a subcontractor to carry out extraction activities. During all relevant times the applicant has paid rent to the second respondent. The applicant has invested substantial amounts of money to build residential houses for its employees, including employees of its subcontractor.
   
9. Mr. Rema stated that as a result of the respondents’ conduct the applicant is ‘suffering ongoing and irreparable harm including disruption to accommodation for staff and project personnel interference with business operations financial losses and reputational damage in relation to project stakeholders’. These assertions are not supported by any documentary evidence.
   
10. Mr. Chillion’s affidavit attaches a copy of the Memo of Understanding, the sublease agreement and the correspondence exchanged between the parties.
    
11. The applicant previously commenced proceedings in this court on 22 November 2024. The application was a response to the respondents’ claims in August and September 2024 that the agreements are ‘unfair’ under the Fairness of Transactions Act 1993 and their direction to the applicant to vacate the property.
    
12. The application was dismissed for want of prosecution on 5 February 2025 because the applicant failed to comply with directions on numerous occasions.
    
13. There is no evidence of what occurred between February 2025 and the respondents’ letter threatening eviction on 23 June 2025.
    
14. The main gates to the Land were locked on 30 June 2025. There was further correspondence between the lawyers representing the applicant and the respondents in July and August 2025 and as previously stated, the applicant instructed solicitors to commence proceedings on 22 August 2025.
    

Submissions made by the parties

15. As to the principles for the issue of an interim mandatory injunction, the applicant relied on those set out by Lay J in Yama Group of Companies Ltd v PNG Power Ltd [2005] PGNC 128; N2831:
    1. A mandatory injunction should normally only be granted where a strong case that serious damage will occur to the applicant is made out:
    4. The general principles for negative injunctions apply, that is that there is a serious case to be tried, damages are not an adequate remedy and does the balance of convenience favour the applicant. The more likely it appears that the applicant will succeed at trial the less reluctant the court will be to interfere on an interim basis. But if it is necessary to make some interim order the Court will do so whether or not the high standard of probability of success at trial is made out:
    5. The cost to the respondent of performing the mandatory acts should be weighed against the likely damage to the applicant;
    6. If the relief sought is such as would normally only be granted after a trial, it should be refused on an interim application unless the prejudice or hardship to the applicant is disproportion to the prejudice and hardship to be caused the respondent in performing the order;
    7. If the mandatory injunction is simply to restore some activity which has been previously performed by the respondent, rather than to embark upon some new activity, it will be more readily granted;
    8. Ultimately in deciding whether or not to grant a mandatory injunction the over riding consideration is an exercise in deciding which course will do the least damage, or, to put it another way, the lower risk of injustice, if it turns out that the court has made the ‘wrong’ decision;
    9. If an injunction is granted the order should specify exactly what it is the respondent has to do, leaving the respondent in no doubt as to what is required to comply with the order... (footnotes removed).
       
16. The applicant submitted that all those grounds fell in their favour and an injunction ought to be granted.
    
17. The respondents submitted that the motion ought to be dismissed as it was ‘misconceived and amounts to an abuse of process’ as the proceedings commenced by the applicant in 2024 sought ‘similar or more or less the same’ orders. The respondents relied on two decisions in para [30] of their submissions, neither which support the respondent’s submissions that it is an abuse of process and or that the claim is misconceived if a party commences a proceeding following an earlier proceeding raising similar facts and issues as those in proceedings that were dismissed for want of prosecution.
    
18. The respondents did not file a Notice of Motion or refer to any Rules to support their submission that the application ought to be dismissed. The respondents made no submissions as to principles relevant to granting an injunction.
    
19. The applicant submitted that the respondents cannot simply make such a submission without first making an application in a manner set out in the Rules.
    
20. The applicant also relied on GR Logging Ltd v Dotaona [2018] PGSC 34; SC1690 for the proposition that as the 2024 claim was dismissed for want of prosecution it did not deal with the merits of the claim and did not determine rights between the parties.
    

Consideration

21. This is an application for a mandatory injunction ordering the respondents to remove all locks obstructions or barriers placed by them or their agents at the Land. The applicant seeks to restore unfettered access to the Land without delay. The applicant continues to operate the quarry on the land. Portion 2876C has on it housing for an unidentified number of workers. The applicant claims that the ‘eviction’ by the respondents has caused ‘inconvenience to the employees’.
22. The accepted test in deciding whether to grant an interlocutory injunction is whether there is a serious question to be tried. If that question is answered affirmatively, then the Court proceeds to consider whether the balance of convenience favours the grant or refusal of the injunction.
    
23. I accept the applicant’s submission that considerations as to an interim mandatory injunction is set out in Yama Group of Companies Ltd v PNG Power Ltd.
    
24. In this case I consider that the applicant has made out a case that there is a serious question to be tried and that there is a real prospect that the applicant will succeed in the claim for an injunction at the trial. I am not satisfied that the applicant has a strong case. The allegation that there is a tort of unlawful interference of contractual relations is based on the fact that the letters alleging that the contract is unfair and threatening eviction are on the letterhead of the fourth respondent. The complaint is that the fourth respondent is a consultant and is not a legal practitioner. As to trespass, there is no evidence that the respondents were not permitted to be on the Land. As to the breach of duty of care, it is unclear on what basis this allegation is made. I am not satisfied that it is strong and clear that the applicant will succeed at trial.
    
25. The proposed order would result in the applicant having access to the Land rather than the respondents having to undertake a new activity or task.
    
26. The court has some difficulty assessing which party has the greatest hardship or prejudice, at this early stage of the proceedings without any documentary evidence from the applicant or any pleadings or evidence from the respondents.
    
27. The more difficult aspect of this claim is the balance of convenience and whether it lies in favor of granting or refusing the interim mandatory injunction sought. Specifically, the applicant has not proved that if it was to succeed, damages would not be an adequate remedy for the loss sustained between the application and the trial. In such a case no interlocutory relief should normally be granted.
    
28. On this point, there is no evidence of how many employees were housed on the property, what impact the ‘eviction’ has had on them, what disruption if any it has had on the applicant’s business. As I stated earlier the quarry operations are continuing and there is no evidence of any loss of profit or impact on output.
    
29. I am satisfied that from 30 June 2025 access has been denied to the applicant and workers have been unable to access their accommodation. The damage was done more than 2 months ago. The gates have been locked literally and metaphorically. There is no urgency to this application.
    
30. The lower risk of injustice will result if this matter proceeds to trial so the matters can be resolved and damages awarded if the applicant is successful in its claim.
    
31. I am not satisfied that serious damage will occur to its business if the mandatory injunction is not made.
    
32. The respondents’ submission that the motion is an abuse of process or is misconceived should have been made in the proper way, that is by filing an application consistent with the National Court Rules. If that occurred parties could have filed evidence and submissions. As the matter stands, it would be unfair for the Court to determine this issue as the applicant has had no opportunity to respond to the assertions raised in the respondents’ submissions.
    

Orders

33. I make the following orders:
    1. The Notice of Motion filed on 22 August 2025 is dismissed.
    2. The applicant is to pay the respondents’ costs of the application on a party/party basis or where there is no agreement, costs are to be assessed.

________________________________________________________________
Lawyers for the applicant: Chillion Lawyers
Lawyer for the respondent: Mr J Palek