Coca-Cola Amatil (PNG) Ltd v Yondo Tours Ltd [2025] PGNC 367; N11512 (29 September 2025)

N11512

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO 400 OF 2023

BETWEEN:
COCA-COLA AMATIL (PNG) LIMITED
Plaintiff

AND:
YONDO TOURS LIMITED
Defendant

MT. HAGEN: KAULE AJ
13 AUGUST, 29 SEPTEMBER 2025

COMPANY LAW - Section 379 of the Companies Act - deregistered Company party to proceedings – restoration of the deregistered company - powers of the Court - ruling

PRACTICE & PROCEDURE - Application to restore deregistered company - Notice of motion - National Court Rules - Order 12 Rule 1 - ruling

Cases cited
Bay Cabs Ltd v Harrieta Kokiva [2019] PGNC 326; N7957 (7 June 2019)
Canopus No. 16 Limited v Maisi Trust Company Ltd (2008) N3401
Kamali Renali v Peter Loko (2012) SC1186
Collison v Warren [1901] UKLawRptCh 65: [1901] UKLawRpCh 65; [1901] 1 Ch 812

Counsel
A. Pini, for the plaintiff
No appearance, for the defendant

RULING

1. KAULE AJ: By a Notice of Motion filed on 25 June 2025, the plaintiff sought the following orders:

i.) Pursuant to Order 12 Rule 1 of the National Court Rules and Section 379 (1)(a)(ii) and (iv) and Section 379 (2)(a)(ii) of the Companies Act 1997 and Section 155 (4) of the Constitution, the de-registered Defendant Company (Yondo Tours Limited) be restored and re-registered on the Companies Register at the Investment Promotion Authority.

ii.) Pursuant to Order 12 Rule 1 of the National Court Rules and Section 378 (1)(b) and (2)(b) or (d) of the Companies Act 1997 and Section 155 (4) of the Constitution, the Registrar of Companies shall restore and register the de-registered Defendant Company (Yondo Tours Limited) on the companies Register within fourteen (14) days.

iii.) In the alternative, pursuant to Section 185 of the Constitution and Oder 12 Rule 1 of the National Court Rules and Section 155 (4) of the Constitution, the Court shall issue ad hoc directions and confirm the proper and correct ‘Form’ under Section 379 (1)(a)(ii) and (iv) and Section 379 (2)(a)(iii) of the Companies Act 1997.

iv.) Costs of this application be in the cause.

v.) Any further orders the Honourable Court deems appropriate.

2. In support of the application, the plaintiff filed the following affidavits:

(a) The affidavit of Company Search of Barnabas Yuyuke, filed on 1 April 2025.

(b) The affidavit in Support of Amanda Pini, filed on 25 June 2025.

3. At the hearing counsel for the defendant, Ms Kamjua, was not present in Court. I had to be satisfied that Ms Kamjua was aware of today’s fixture before I heard the plaintiff’s application in her absence.

4. Upon perusing the court file, I noted that when the matter last came before me on 9 July, 2025 both Ms Pini for the plaintiff and Ms Kamjua for the defendant were present when I adjourned the plaintiff’s application to today for hearing.

5. Furthermore, I confirm that the defendant’s lawyers were earlier served the plaintiff’s Notice of Motion and Affidavit in Support on 1 July, 2025. This is according to the Affidavit of Service of Stanley Jacob filed on 3 July, 2025.

6. Having satisfied myself that the defendant’s lawyers had sufficient notice of the plaintiff’s application returning today for hearing, I proceeded to hear the said application.

BACKGROUND

7. The defendant was duly incorporated under the Companies Act 1997 (the “Act”) on 9 November, 2012 and was registered with the Investment Promotion Authority, having the company number 1-85773.

8. The defendant is a trade customer of the plaintiff which receives goods on credit from the plaintiff and sells at mark-up prices. Once sales are completed, the defendant repays the plaintiff’s credit and keeps the profits.

9. On 16 March, 2017 the plaintiff supplied various Coca-Cola products to the defendant at the total cost of K33,653.13 on credit basis.

10. The defendant failed to make payments to the plaintiff.

11. On 3 August, 2017 the plaintiff’s lawyers sent a letter of demand to the defendant.

12. In September, 2017 the defendant made a part payment of K5,000 which reduced the outstanding balance to K28, 653.13.

13. The defendant failed to settle the outstanding balance of K28, 653.13 and this resulted in the plaintiff filing these proceedings against it, on 17 August, 2023.

14. The plaintiff served the Writ of Summons on the defendant’s Managing Director, Mr Alex Moya, on 17 November 2023.

15. On 22 November, 2023 the defendant filed its Notice of Intention to Defend.

16. On 30 May, 2024, the Public Solicitor filed a Notice of Appearance and a Defence for the defendant. The Defence was filed out of time without seeking the leave of the Court.

17. On 11 September, 2024 the defendant filed an application to dismiss the proceedings for not disclosing a reasonable cause of action and for being time-barred, and alternatively, sought leave to file its defence out of time.

18. On 11 February, 2025 the plaintiff filed an application to strike out the defendant’s Defence filed on 30 May, 2024 and for default judgement to be entered against the defendant.

19. On 4 March, 2025, the Court heard the defendant’s application and during that time the defendant’s lawyers submitted to the Court, among other things, that the defendant was non -existent, as it ceased carrying business and was de-registered in or about 2017.

20. After hearing from the parties, the Court dismissed the defendant’s application and ordered for the plaintiff’s application to be adjourned to allow for the confirmation of the legal status of the defendant.

21. Upon its search of the records held by the Investment Promotion Authority, the plaintiff confirmed that the defendant was de-registered on 5 December, 2023, when the Notice of removal for failure to re-register, was issued by the Registrar of Companies.

22. On 25 June, 2025 the plaintiff filed the present application.

ISSUE

23. The issue for determination is whether the defendant can be restored to, and be re-registered on the Companies Register.

THE LAW

24. Order 12 Rule 1 of the National Court Rules (the “Rules”) provides:

The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgement or make such orders as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgement or order in any originating process.

25. The Court has power under Order 12 Rule 1 of the Rules to make such orders as the nature of the case requires. In Kamali Renali v Peter Loko (2012) SC1186, the Supreme Court confirmed that such an approach is permitted, and commented as follows:

“9. Order 12 Rule 1 in essence allows the court at any stage of the proceedings on the application of any party to make such others as the nature of the case requires notwithstanding that the applicant does not make a claim for those orders in the originating process. In Canopus No. 16 Limited vs. Maisi Trust Company Ltd (2008) N3401, His Honour, Hartshorn J. commenting on O12 r1 said:

“This provision provides for what was permitted in Collison v Warren [1901] UK Law Rpt Ch 65: [1901] UKLawRpCh 65; [1901] 1 Ch 812, In that case a defendant successfully obtained a mandatory injunction against a plaintiff even though he had not filed a counterclaim, as what he was seeking arose out of the same contract upon which relief was sought in the proceedings.”

26. Section 379 of the Act is in the following terms:

379. COURT MAY RESTORE COMPANY TO REGISTER.

(1) The Court may, on the application of a person referred to in Subsection (2), order that a company that has been removed from the register be restored to the register where it is satisfied that–

(a) at the time the company was removed from the register–

(i) the company was still carrying on business or other reason existed for the company to continue in existence; or

(ii) the company was a party to legal proceedings; or

(iii) the company was in receivership, or liquidation, or both; or

(iv) the applicant was a creditor, or a shareholder, or a person who had an undischarged claim against the company; or

(v) the applicant believed that a right of action existed, or intended to pursue a right of action, on behalf of the company under Part IX; or

(b) for any other reason it is just and equitable to restore the company to the register.

(2) The following persons may make an application under Subsection (1):–

(a) any person who, at the time the company was removed from the register–

(i) was a shareholder or director of the company; or

(ii) was a creditor of the company; or

(iii) was a party to any legal proceedings against the company; or

(iv) had an undischarged claim against the company; or

(v) was the liquidator, or a receiver of the property of, the company;

(b) the Registrar;

(c) with the leave of the Court, any other person.

(3) Before the Court makes an order restoring a company to the register under this section, it shall require any provisions of this Act, being provisions with which the company had failed to comply before it was removed from the register, to be complied with.

(4) The Court may give such directions or make such orders as it thinks fit for the purpose of placing the company and any other persons as nearly as possible in the same position as if the company had not been removed from the register.

CONSIDERATION

27. Section 379 of the Act sets out the criteria to be met by an interested person before the Court can restore a company that was removed from the Company register.

28. To succeed in its application to have the defendant restored to, and be re-registered on, the Companies Register, the plaintiff needs to show the following:

(a) At the time the defendant was removed from the register, the defendant was a party to legal proceedings. (Section 379 (1)(a)(ii) of the Act).

(b) The plaintiff was a creditor, or a person who had an undischarged claim against the defendant. (Section 379 (1)(a)(ii) of the Act).

(c) The plaintiff is a proper person to make such an application to the Court. (Section 379 (2) (a) (iii) of the Act).

29. I now consider whether the plaintiff has satisfied the three (3) requirements under the Act, that are highlighted above.

1. The defendant was a party to legal proceedings. (Section 379 (1)(a)(ii) of the Act).

30. The evidence of the plaintiff as disclosed in the affidavit of search of Barnabas Yuyuke, filed on 1 April, 2025 indicates that the defendant was incorporated as a company on 9 November, 2012 and had its registered company number as 1-85773. By virtue of Section 16 of the Act, the defendant as at that date “is a legal entity in its own rights separate from its shareholders and continues in existence until it is removed from the register.”
31. The further evidence of the plaintiff indicate that the defendant was de-registered on 5 December, 2023.As at that date, the defendant ceased to exist as a legal entity.

32. It is not disputed that the plaintiff commenced legal proceedings against the defendant on 17 August, 2023 when it filed its Writ of Summons. At that time, the defendant was legally in existence as an incorporated company and could sue and be sued in legal proceedings.

33. I note that the Writ of summons was served on the defendant on 17 November, 2023 and the defendant filed its Notice of Intention to Defend on 22 November, 2023. The defendant was still a registered company as at those dates.

34. It was on 5 December, 2023 that the defendant got de-registered by the Registrar of Companies.

35. It is an undisputed fact that the defendant’s de-registration status was not known by the plaintiff or even disclosed by the defendant or its lawyers to the Plaintiffs until when the defendant filed an application to dismiss the proceedings for reasons of, among other things, the de-registration of the defendant.

36. It is noted that on 30 May, 2024, the defendant’s lawyers filed a Notice of Appearance and a Defence for the defendant. Even by that date, the defendant’s lawyers did not alert the plaintiff of the defendant’s de-registration. It is unclear whether the defendant’s lawyers knew of the defendant’s status and failed or neglected to inform the plaintiff’s lawyers at the earliest time. In any case, the fact remained that the plaintiff pursued the proceedings without knowing about the de-registered status of the defendant until 4 March, 2025.

37. Clearly, the defendant was a party to legal proceedings at the time it was de-registered. The plaintiff has therefore satisfied the first requirement.

2. The plaintiff was a creditor or a person who had an undischarged claim against the defendant. (Section 379 (1)(a)(ii) of the Act).

38. I note as an undisputed fact that on 16 March, 2017 the plaintiff supplied various Coca-Cola products to the defendant at the total cost of K33,653.13 on credit basis.

39. Further, on or about September, 2017 the defendant made a part payment of K5,000.00 which reduced the outstanding balance to K28, 653.13. However, the defendant failed to settle the outstanding balance, which prompted the plaintiff to file these proceedings on 17 August, 2023.

40. I am satisfied that the Plaintiff was a creditor or a person who had an undischarged claim against the defendant. Accordingly, the Plaintiff has satisfied the second requirement.

3. The plaintiff is a proper person to make the application to the Court as it was a party to legal proceedings against the defendant. (Section 379 (2) of the Act).

41. It is an undisputed fact that the plaintiff filed the proceedings against the defendant on 17 August, 2023.

42. The de-registration of the defendant by the Registrar of Companies occurred on 5 December, 2023. At that relevant time, the proceedings against the defendant was still on-going and the plaintiff was not aware of the change in status of the defendant until 4 March, 2025.

43. I find that the plaintiff is a proper person to make this application as it has the requisite standing to ask the Court for the orders it seeks in its Notice of Motion. The defendant cannot apply to the Court by virtue of its non-existence due to its deregistration. As his Honour Toliken J stated in Bay Cabs Ltd v Harrieta Kokiva [2019] PGNC 326; N7957 (7 June 2019), at paragraph 19:

“19. That being so, it is clear that a deregistered company cannot apply to the Court to restore itself, again, for the simple reason that it does not exist anymore in law. The only persons who can do that are those enumerated in Section 379 (2)...”

44. The plaintiff is a proper person to make this application. The third requirement is satisfied.

CONCLUSION

45. Based on the forgoing, I will accordingly grant the orders sought in the plaintiff’s Notice of Motion.

COST

46. Cost is a discretionary matter. I will order costs in favour of the plaintiff.

ORDERS OF THE COURT

47. The terms of the order are as follows:

1. The plaintiff’s Notice of Motion is granted.

2. The de-registered Defendant company be restored and re-registered on the Companies Register at Investment Promotion Authority.

3. The Registrar of Companies shall facilitate the restoration and re-registration of the de- registered Company (Yondo Tours Limited) within 14 days from the date of this Order.
4. Costs of this application be borne by the Defendant.

5. Time for entry of these orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

The Court orders accordingly.
________________________________________________________________
Lawyers for the plaintiff: Warner Shand Lawyers
Lawyer for the defendant: Public Solicitor