Simbali Land Group Incorporated v Tzen Niugini Ltd [2025] PGNC 514; N11659 (25 September 2025)

N11659

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 194 OF 2025

BETWEEN:
SIMBALI LAND GROUP INCORPORATED
First Plaintiff

POMIO OIL PALM GROWERS ASSOCIATION INCORPORATED
Second Plaintiff

EAST NEW BRITAIN OIL PALM GROWERS ASSOCIATION INCORPORATED
Third Plaintiff

WARANGOI OIL PALM FARMERS ASSOCIATION INCORPORATED
Fourth Plaintiff

THE MINISTRY FOR INTERNATIONAL TRADE AND INVESTMENT
Fifth Plaintiff

v

TZEN NIUGINI LIMITED
First Defendant

TZEN PLANTATION LIMITED
Second Defendant

EAST NEW BRITAIN PALM OIL LIMITED
Third Defendant

ENG KWEE TAN in his capacity as
former Chief Executive Officer of East New Britain Resource Group
Fourth Defendant

KIAT KEONG LEW also known as SIMON LEW in his capacity as
Chief Operations Officer and a representative of East New Britain Resource Group
Fifth Defendant

EAST NEW BRITAIN RESOURCE GROUP, its agents, servants and subordinates
Sixth Defendant

WAIGANI: CHRISTENSEN J
24, 25 SEPTEMBER 2025

CIVIL – INJUNCTIONS – Interim injunction halting oil palm operations – application to set aside interim injunction – Order 12, rule 8(3)(a) National Court Rules – inherent jurisdiction – whether there is a serious question to be tried – whether damages is an adequate remedy – whether the balance of convenience favours the continuation of the interim injunction – distinction in substance and meaning between an ‘arguable case’ and ‘a serious question to be tried’ – declarations not solely directed towards monetary relief – declarations seeking to prevent trespass on customary land and exploitation of landowners – no requirement that an undertaking as to damages is provided by particular parties to the proceeding – status quo now is paused oil palm operation – interim injunction achieves delicate balancing of harms for each party – variation to injunctive order – parties to be heard as to order to refer to mediation

Cases cited

Airlines of Papua New Guinea v Air Niugini Limited [2010] PGNC 49, N4047
Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1, SC853
Fulleborn Plantations Ltd v Pepi Kimas [2007] PGNC 92, N3209
Golobadana No 35 Ltd v Bank of South Pacific Ltd [2002] PGNC 36, N2309
Lu v Tipale & Ors [2010] PGNC 45, N4006
Pacific Native Timbers (PNG) Ltd v Donaldson [2005] PGNC 29, N2933
Telikom PNG Ltd v ICCC [2007] PGNC 41, N3143
Wamena Trading Ltd v Civil Aviation Authority of PNG [2006] PGNC 57, N3058

Counsel

J Kihanges, for the first, second, third and fourth plaintiffs
E Sasingian, for the fifth plaintiff
C Joseph, for the first, second, third, fifth and sixth defendants
No appearance for the fourth defendant

RULING ON MOTION
Application to set aside interim injunction

1. CHRISTENSEN J: By way of notice of motion filed 8 September 2025, the first, second, third, fifth and sixth defendants (who are the applicants in the application by motion, and whom will be referred to as ‘the defendants’ for current purposes), seek to set aside an ex parte order made on 3 September 2025. The ex parte order involves an interim injunction.
   
2. The plaintiffs, being the respondents to this motion, oppose the application.
   
3. In the substantive proceeding, the plaintiffs seek, by way of originating summons filed 2 September 2025, declarations as to findings made in a report as to the business operations and practices of the East New Britain Resource Group (‘the resource group’), an entity concerned with oil palm operations in the province.
   
4. The report, dated 3 March 2025, arises in accordance with National Executive Council (NEC) decisions and includes, as expressed in the Executive Summary, that the resource group compensate for contended underpayments or losses suffered by landowners from 2014 to 2024. The plaintiffs seek a declaration as to the appointment of an independent valuer and, consequently, payment in an amount to be assessed.
   

BACKGROUND

5. It warrants noting that the notice of motion filed 8 September 2025 also seeks the dismissal of the substantive proceedings, OS 194 of 2025. The defendants did not move on that aspect of the application at this time, although there is a degree of similarity to the portion of the motion moved upon with both issues considered in the evidence and submissions relied upon.
   
6. The defendants rely on two affidavits, both of which I have considered, with the affidavit of Mr Shepherd considered for current purposes to the extent that it relates to the setting aside application. The plaintiffs relied upon the affidavit material filed for the purposes of the original order, as well as additional affidavits filed in respect of the current application. Again, all of this material has been considered. Further, comprehensive written submissions, citing relevant authorities were provided and have been considered.
   
7. Additionally, consideration of the current application follows the granting of an application by motion for the Ministry for International Trade and Investment to be joined as a party and named the fifth plaintiff in the proceeding. On behalf of this plaintiff, the interests of justice being achieved for the other plaintiffs was emphasised, with reference to the Minister’s position that the recommendations from the report are contended to have not being complied with.
   
8. I recognise the position of the fifth plaintiff, however, I accept the submission of the defendants that it must be recalled that this plaintiff, representative of the State, has a distinct and differing interest to the other plaintiffs given the parties to the relevant Project Agreements. Accordingly, while I acknowledge the position of the fifth plaintiff, and the submissions made on his behalf, I do not find it to have been of weight in informing the decision to be currently made.
   

LAW

9. As to the applicable law in an application to set aside an interim injunction, there was no dispute between the parties that the court has the power to do so in accordance with O 12 r 8(3)(a) of the National Court Rules 1983 and the inherent jurisdiction of the court. It is a matter of discretion for the court. Further, there was no dispute between the parties that the court is to consider the application with reference to essentially three matters, namely:
   
   • (a) whether there is a serious question to be tried;
     
   • (b) whether damages is an adequate remedy; and
     
   • (c) whether the balance of convenience favours the continuation of the interim injunction.
     
10. The authorities that this draws from include Pacific Native Timbers (PNG) Ltd v Donaldson [2005] PGNC 29, N2933; Wamena Trading Ltd v Civil Aviation Authority of PNG [2006] PGNC 57, N3058; and Lu v Tipale & Ors [2010] PGNC 45, N4006.
    
11. It follows that the usual considerations for the granting of an injunction apply, with these being, per Makail J in Lu v Tipale & Ors at [14], that:
    

[a]n applicant must establish to the satisfaction of the Court that there are no serious issues to be tried in the proceeding, secondly, the balance of convenience do not favour the continuation of the interim injunction and finally, that damages is an adequate alternative remedy.

CONSIDERATION

Issue (a) – whether there is a serious question to be tried

12. Before turning to the consideration of this issue, I observe that the defendants described this issue as being whether the plaintiffs have an ‘arguable case’. It was submitted that this consideration is of the same nature as to whether there is a ‘a serious question to be tried’, with it submitted that given the proceedings here do not disclose a cause of action, and that it is a sham with no real possibility of ultimate success, there is no ‘arguable case’ that is capable of amounting to there being serious issues to be tried.
    
13. I do not accept that the consideration to be made is one involving consideration as to whether there is an ‘arguable case’. There is a distinction in substance and meaning between an ‘arguable case’ and a ‘serious question to be tried’. The authorities make plain that the question is one of whether there is a serious question to be tried, with Hartshorn J in Airlines of Papua New Guinea v Air Niugini Limited [2010] PGNC 49, N4047 observing that this means “what the plaintiff must prove is that he has a serious, not a speculative case which has a real possibility of ultimate success.”
    
14. Nonetheless, I accept the defendant’s submission that in this case it is a distinction of little significance. If the defendant’s submission as to why the plaintiffs do not have an arguable case is accepted, then there is not a serious question to be tried.
    
15. The defendants submit that the declarations sought by the plaintiffs are, in essence, bound to fail. It is submitted, and deposed in the evidence, that there are significant issues with reliance on the report as a basis for the declarations sought, including:
    
    • - the investigation leading to the report was done without consultation with the relevant statutory authority;
      
    • - that the investigators do not appear to have been aware of the project agreements with the State and the role of the Department of Commerce and Industry;
      
    • - that the recommendations from the report are not enforceable; and
      
    • - that the defendants were not afforded natural justice in terms of the estimate made of the contended underpayments.
      
16. Further, the defendants contend that the primacy, and binding nature, of dispute resolution clauses in the Project Agreements is raised, and that the landowner plaintiffs are not necessarily identifiable as the landowners considered by the report as potentially having any entitlement to compensation. The defendants submit that there exists a sub-lease that authorises the defendant’s operations on the plaintiff’s land. In essence, it is submitted by the defendants that the findings of the report are not enforceable, and that the National Court lacks jurisdiction to make necessary preliminary findings as to land ownership.
    
17. The plaintiffs do not accept these contentions. The plaintiffs submit, and witnesses depose in the affidavit material, that the defendants have operated without any form of land lease agreement. They submit that some 15 000 members are affected by the operations of the defendants, with this including members of the plaintiffs, who maintain support for the proceeding and continuation of the interim injunction. It was submitted that the plaintiffs have legal standing, and that continuation of the interim injunction is necessary to achieve a tangible outcome from the investigation and the report.
    
18. Additionally, it was submitted that the NEC, and accordingly the order as to an investigation and the consequential report, has a basis in statutory authority. I otherwise observe that the report itself includes that the fifth defendant had the opportunity to provide “extensive information” for the preparation of the report: see at p 8.
    
19. As is apparent, there are opposing contentions between the parties. Little is agreed, and the matters in contention are significant in terms of determining the relief sought. The situation is not, as the defendants contend, one where there is plainly no jurisdiction or disclosed cause of action. Rather, the plaintiffs have sought to enforce findings of a report prepared following an investigation, one endorsed by the NEC. It is not a proceeding commenced in a lacuna, or one commenced without a foundation.
    
20. I am satisfied that there is a serious question to be tried, with it being one that has a real possibility of ultimate success, and not one that is speculative. It is not an inarguable case.
    

Issue (b) – whether damages is an adequate remedy

21. The defendants submit that plainly damages are an adequate remedy given the declaratory relief sought is directed towards receiving money for contended underpayments and losses. It is submitted that the plaintiffs have not sought to prevent further oil palm operations, but rather, they are concerned purely with financial compensation.
    
22. With reference to the terms of the originating summons in isolation, there is merit in this submission. However, the relief sought, particularly in the first paragraph, when understood in the context of the findings of the report, reveals that the relief sought extends beyond solely monetary relief. The plaintiffs are seeking, to adopt submissions made on behalf of the plaintiffs, to prevent trespass on customary land and “continuation of exploitation of the plaintiffs”. The plaintiffs submit that continued operation in the manner undertaken to date by the defendants unfairly compels the plaintiffs as to the use made of their land.
    
23. I am satisfied that damages are not an adequate remedy in the circumstances. The plaintiffs do not simply seek financial relief. The declarations sought are also directed towards the landowners having autonomy as to the use of their land, for themselves and for future generations. Damages is not an adequate remedy for this.
    

Issue (c) – the balance of convenience

24. As to the third issue, the defendants cite Kandakasi J (as then was) in Golobadana No 35 Ltd v Bank of South Pacific Ltd [2002] PGNC 36, N2309 that “the authorities also agree that the balance of convenience must favour a grant or continuity of such a relief to maintain the status quo”.
    
25. The defendants emphasised the significant disruptions as a result of the cessation of operations, including financial implications for the companies, and for some 5000 workers. There will be ongoing losses to undertake rehabilitation work to restart the operations, loss of workers resulting in additional recruitment costs, deterioration of ‘Fresh Fruit Bunch’ quality, and loss of export income for the country.
    
26. I accept that the matters raised by the defendants are concerning. However, the ‘status quo’ as it now is that the operations have been paused. To disrupt the pausing of the operations now would only serve to return the parties to the position they were in previously, with the losses occasioned to date from the interim injunction being for naught.
    
27. The issues for determination in the substantive proceeding are long-standing, even if only recently asserted in the current form by the plaintiff. They are issues that require resolution, a matter that is in the interests of all of the parties. The continuation of the interim injunction achieves the necessary delicate balancing between the harms arising for each opposing party as they seek to resolve their differences.
    

IMPROPER UNDERTAKING AS TO DAMAGES

28. The defendants further raise, consistent with the authorities that provide that the court’s determination at this time involves the usual considerations for the granting of an injunction, that there are not the required undertakings as to damages.
    
29. The defendants submit that the chairpersons of the first, second, and third plaintiffs, in providing their undertakings, are not sufficient as they are not parties to the proceedings. The defendants cite the authorities of Fulleborn Plantations Ltd v Pepi Kimas [2007] PGNC 92, N3209 at [15], Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1, SC853; and Telikom PNG Ltd v ICCC [2007] PGNC 41, N3143 at [13].
    
30. The plaintiffs accept that undertakings as to damages are a requirement for injunctive relief, and submit that the three undertakings provided here reflect undertakings from individuals of standing and capacity. It is submitted that the undertakings were properly filed with the initial application and appropriately affixed with a seal.
    
31. The difficulty with the defendant’s submission is that the authorities relied upon do not provide that specifically a plaintiff must provide any undertaking as to damages. The authorities provide that an applicant for an injunction must provide any such undertaking, but do not provide that any such undertakings are to be provided by the particular parties to the proceeding.
    
32. In the absence of any authority that provides this, nor any rule of the National Court Rules being drawn to my attention to this effect, I am not persuaded that the undertakings relied upon here amount to there being no undertakings as to damages. This basis to set aside the interim injunction is refused.
    

CONCLUSION AS TO APPLICATION TO SET ASIDE

33. For clarity, I observe that the court’s finding is not one that determines to conclusion the merits of the plaintiff’s originating application. It remains for the court to consider in a substantive proceeding whether the declarations sought ought be granted. The defendants raise matters that have real bearing on this. Nonetheless, at this stage, and applying the applicable law to the issues as they arise in the current application, the application to set aside the ex parte order is refused.
    
34. The parties are encouraged to engage in communication and consultation with a view to resolving the dispute and restoring oil palm operations in East New Britain in a manner satisfactory to all parties as soon as possible. An order to enable mediation through the court’s process is capable of giving effect to this. However, noting the defendant’s contention that dispute resolution clauses have primacy, I will not make orders of referral to mediation until the parties have an opportunity to be heard in relation to this.
    

VARIATION AS TO THE ORDER

35. Two final matters warrant consideration. The parties, as I understood it, were in agreement that if the court refused the application to set aside the ex parte order, that the court still retained the power to vary any terms of the order as the court considered appropriate.
    
36. The position of the defendants raises the issue for workers in not being able to earn wages because of the injunction, and that there is a restriction on the movement of all staff from leaving Papua New Guinea even though they could not be personally liable. The plaintiffs submit that workers, with some of these represented as plaintiffs, maintain a position that operations be paused. Further, the plaintiffs submit that there is a risk of interference with the financial capacity of the defendants if individuals are able to leave Papua New Guinea, with reference to information obtained from the investigation and contained in the report.
    
37. Having regard to the effect of the orders to be made, with the interim injunction to continue, it appears to me that it be preferable that the workers at least be able to access any outstanding payments owing to them. This cannot currently be achieved given the restraint on finances of the resource group. I will make an order that varies the terms of the interim injunction to allow for this.
    
38. Further, the plaintiff’s submission as to the need for a restriction if individuals on departure from Papua New Guinea does not go higher than a speculative or remote concern at this time. I am not prepared to continue that term of the interim injunction in the circumstances, and will make an order that removes this from the interim injunction.
    

ORDERS

39. For those reasons, the following orders are made:
    
    • (1) The first, second, third, fourth, and sixth defendants application by notice of motion filed 8 September 2025 to set aside the ex parte order of 3 September 2025 is refused.
      
    • (2) The ex parte order of 3 September 2025 is varied as follows:
      
      • (a) Order 3(a) and (b) are varied to include “other than with respect to making any payments for employment activity or rent owing to any workers employed by the defendants”; and
        
      • (b) Order 3(e) is deleted.
        
    • (3) The balance of the notice of motion filed 8 September 2025 is for hearing at an inter partes listing on 10 October 2025 in Kokopo.
      
    • (4) The parties are directed to consult with an external mediator to be agreed between the parties and to inform the court of the identified external mediator at the inter parte listing on 10 October 2025 in Kokopo for the Court to consider making mediation orders.
      
    • (5) Costs in the cause.
      
    • (6) The time for entry of these orders to be abridged to the time of settlement by the Registrar which shall take place forthwith.
      

Lawyers for the first, second, third and fourth plaintiffs: Kihanges Lawyers
Lawyers for the fifth plaintiff: Sasingian Lawyers
Lawyers for the first, second, third, fifth and sixth defendants: Ashurst Lawyers