Simbali Land Group Incorporated v Tzen Niugini Ltd [2025] PGNC 527; N11682 (3 November 2025)

N11682

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

MICHAEL YAPE, in his capacity as a customary landowner in the Tomoip tribe and Kaboum clan for himself and on behalf of members
Seventh Defendant

CONRAD MANAN JR, in his capacity as a customary landowner in the Barchem clan for himself and on behalf of members of his clan
Eighth Defendant

THOMAS KALAS, in his capacity as customary landowner in the Kairak clan for himself and on behalf of members of his clan
Ninth Defendant

KOKOPO: CHRISTENSEN J
28 OCTOBER, 3 NOVEMBER 2025

CIVIL – INJUNCTIONS – Interim injunction halting oil palm operations – application to stay interim injunction on provision of security by bank guarantee – jurisdiction of National Court to stay an interim injunction – the National Court Rules are concerned with practice and procedure and do not define the jurisdictional limits of the National Court – res judicata does not arise – when stay of injunction is sought after inter parte hearing – National Court has power pursuant to s 155(4) of the Constitution exercised in accordance with O 12 r 1 – discretionary remedial power of a stay to facilitate justice – desirability of an order that pauses an injunction by stay rather than abolition – whether stay with bank guarantee should be granted where injunction has characteristics of quai timet precautionary injunctive remedy – application to stay interim injunction refused

Application for stay of interim injunction on provision of security by bank guarantee

Cases cited

Aihi v The State (No 1) [1981] PNGLR 81
Bagari v Marape [2014] PGNC 321; N5897
Bagari v Marape [2014] PGSC 41; SC1364
Bagari v Marape [2016] PGNC 409; N6801
Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1; SC853
Craftworks Niugini Pty Ltd v Allan Mott [1997] PGSC 6, SC525
Mareva Compania Naviera SA v International Bulkcarriers SA [1980] 1 All ER 213
McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279
Medaing v Ramu Nico Management (MCC) Ltd [2011] PGSC 40, SC1144
Niugini Mining Ltd v Bumbandy for himself and the Customary Landowners of Mt Victoria Gold Mine Area [2005] PGSC 28; SC804
Ombudsman Commission v Gabriel Yer & Ors [2009] PGSC 45; SC1041
Redland Bricks Ltd v Morris [1969] 2 All ER 576
Simbali Land Group Inc & Ors v Tzen Niugini Ltd & Ors [2025] PGNC 514; N11659
The Church of Jesus Christ of Latter-Day Saints Incorporated v Kimsas & Ors [2022] PGSC 96; SC2280
Yama v PNGBC Ltd [2008] PGSC 42; SC922

Counsel

J Kihanges for the first, second, third and fourth plaintiffs
No appearance for the fifth plaintiff
C Copland for the first, second, third, fifth, sixth defendants
No appearance for the fourth defendant
I Dalu for the seventh and eighth defendants
F Cherake for the ninth defendant

RULING ON MOTION

1. CHRISTENSEN J: By way of contested notice of motion filed 23 October 2025 the first, second, third, fifth and sixth defendants (“the defendants” for current purposes) seek orders staying an interim injunction.
   
2. The interim injunction is in essence restraining oil palm operations and the finances of a resource company in parts of East New Britain.
   
3. The seventh, eight and ninth defendants join and do not oppose the application.
   
4. The orders sought intend that the interim injunction be stayed upon receipt into the National Court Trust Account a bank guarantee in the sum of K38 730 637.00. It is further sought that the court’s order include that the plaintiffs have liberty to apply to restore the interim injunction by leave of the court on two days notice.
   

BACKGROUND

5. On 3 September 2025 an interim injunction (“the injunction”) was ordered by the National Court. The injunction restrains the defendants from engaging in oil palm operations and disbursement of funds and assets. The orders are in place “until further orders of the court”.
   
6. On 25 September 2025, an application to set aside the injunction pursuant to O 12 r 8(3)(a) of the National Court Rules 1983 was refused: see Simbali Land Group Inc & Ors v Tzen Niugini Ltd & Ors [2025] PGNC 514; N11659.
   
7. Since then, in accordance with applications by both parties, there have been variations ordered to the injunction. However, the essential components of the injunction remain as originally ordered.
   
8. A preliminary issue arises as to the jurisdiction of the court to grant the orders sought. This issue will be considered first.
   

JURISDICTION OF NATIONAL COURT TO STAY AN INTERIM INJUNCTION

9. The plaintiffs submit that the only remedy available to the defendants in respect of the injunction is by way of appeal.
   
10. The defendants submit that pursuant to O 12 r 1 of the National Court Rules 1983 (the Rules) and s 155(4) of the Constitution, the National Court is empowered to order a stay in the present circumstances. That is, the inherent power of the court, and that the court may at any stage make such order as the nature of the case requires, permits such a course.
    

Plaintiff’s submissions

11. The plaintiffs submits that no such power is provided in the Rules, and that s 19 of the Supreme Court Act is the only legislative basis upon which a stay can be granted. That is, by the Supreme Court on any appeal. I am not persuaded by this aspect of the plaintiff’s submissions.
    
12. Firstly, that the Supreme Court has an express legislative power to order a stay in certain circumstances does not define the jurisdictional limits of the National Court. The issue remains what power is available to the National Court, irrespective of that exercisable by the Supreme Court. That a power is expressly exercisable by the Supreme Court does not necessarily exclude it from being also a power available to be exercised by the National Court.
    
13. Secondly, the Rules are concerned with practice and procedure (see s 184 of the Constitution and s 8 of the National Court Act) and not with defining the jurisdictional limits of the National Court. It does not follow from the absence of an express power in the Rules that an order sought would amount to jurisdictional error. To put it another way, I gratefully adopt the description by Chief Justice McCallum of the Supreme Court of the Australian Capital Territory, expressed extra-judicially, that “[r]ules speak to the process and do not provide the contours of the underlying power”.
    
14. It is relevant to recall, from Niugini Mining Ltd v Bumbandy for himself and the Customary Landowners of Mt Victoria Gold Mine Area [2005] PGSC 28, SC804 and the authorities cited therein, that “the Rules of the Court are not an end in them[selves] but a means to an end in all matters going before the Courts”. The Rules are a “means to achieving a just resolution of the dispute between the parties”: The Church of Jesus Christ of Latter-Day Saints Incorporated v Kimsas & Ors [2022] PGSC 96, SC2280.
    
15. It is further submitted by the plaintiffs that the doctrine of res judicata, in so far as the injunction that has been issued and the application to set aside refused, applies. I am also not persuaded of this. While there was a hearing and a determination on the merits as to the issuing of the injunction and then whether to set it aside – and these were earlier and final pronounced judicial decisions by a tribunal of competent jurisdiction (Yama v PNGBC Ltd [2008] PGSC 42, SC922) – what is sought now is not a judicial decision involving a determination of the same questions.
    
16. What is sought is a judicial determination as to whether a stay of the injunction ought to be issued. The real preliminary determination then is whether the court has the power to issue a stay of an interim injunction.
    

Defendant’s submissions

17. As already observed, the defendants rely on the general relief provision in the Rules and the inherent jurisdiction of the National Court. Order 12 r 1 of 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 order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in the originating process.

18. In support of their contention, the defendants have assisted with a line of authority concerned with the issuing of a stay following an order of an ex parte interim injunction, with the stay order issued prior to the inter parte hearing: Bagari v Marape [2014] PGNC 321, N5897 per Hartshorn J; Bagari v Marape [2014] PGSC 41, SC1364 per Makail J; and Bagari v Marape [2016] PGNC 409, N6801 per Hartshorn J.
    
19. In the first National Court decision, Hartshorn J was satisfied that the National Court had the power to grant the stay order sought. In that matter, the same Rule and inherent jurisdiction as relied upon here was relied upon by the applicant. His Honour had regard to what was said by Injia DCJ (as he then was) in Mainland Holdings Ltd v Stobbs [2003] PGNC 10, N2522 that:
    

In my view, the trial Court has wide discretionary powers to control the management of the case until its substantive disposition. In terms of its interlocutory proceedings, the Court has wide powers to grant or refuse to grant, vary or set aside, dissolve or discharge an interlocutory order either on application by an interested party or upon its own motion, in a wide range of situations.

20. His Honour Hartshorn J considered that a stay of an order is a subset of a variation or a setting aside, and is a suspension of the order. Given that the Rules do provide specific powers in certain circumstances to stay a proceeding, his Honour was satisfied that the National Court has the power to stay one of its ex parte orders.
    
21. On an application for leave to appeal the National Court stay order, Makail J was not as necessarily persuaded that the National Court had such a power. His Honour observed that it was arguable that jurisdiction was exceeded given O 12 r 8 of the Rules limits the court’s power to being to set aside or vary the interim injunction, with this not extending to a power to stay. Leave to appeal was granted.
    
22. On 17 December 2014 the Supreme Court appeal was heard, and on 30 October 2025, judgment entered by a three-judge bench. The appeal was dismissed. This information is taken from the court database, with any judgment not able to be located by either this Court or the defendant’s representatives.
    
23. On 11 November 2026, the matter returned before Hartshorn J. His Honour observed at [3] that “the stay order [that was originally issued in the National Court] was unsuccessfully appealed to the Supreme Court by the plaintiffs”. The defendants submit that it can be deduced from this that the Supreme Court was satisfied that the National Court had the power to issue a stay in the circumstances of that matter. I accept that is a reasonable conclusion to draw.
    

Consideration

24. However, I have a hesitation been satisfied that the assumed Supreme Court authority relied upon by the defendants is binding in circumstances where the reasoning from the judgment is not available to ascertain its application to the current circumstances. It is relevant to recall that the line of authority relied upon by the defendants was concerned with the issuing of a stay on an ex parte order, before any inter parte hearing.
    
25. Here, the issue is slightly different and turns on whether the court has the power to issue a stay on an interim injunction at a stage after inter parte hearings. Nonetheless, to the extent it can be ascertained, it seems unlikely that the distinction would alter the availability of a power that I infer was found by the Supreme Court to exist.
    
26. In any event, I am satisfied that the National Court has the power to make an order of a stay in the circumstances here for the following reasons.
    
27. Firstly, to the extent that O 12 r 8 may be viewed as restricting the National Court to set aside or vary an order, if a stay is not within this scope, it must be recalled that O 12 r 8 provides in sub rule (5) that “this Rule does not affect any other power of the Court to set aside or vary a judgment order”. That is, to my mind, if there is any extent to which O 12 r 8 limits the scope, the limitation does not exclude the application of O 12 r 1 of the Rules.
    
28. Secondly, the notion that the issuing of a stay is within the jurisdiction of the National Court is not unprecedented. It is a power far from unknown in the civil jurisdiction. Indeed, the Rules contemplate that the court may stay a proceeding (see, for example, O 4 r 36 or O 9 r 39).
    
29. Thirdly, is the inherent jurisdiction of the National Court as provided by s 155(4) of the Constitution. As said by Deputy Chief Justice Kearny in Aihi v The State (No 1) [1981] PNGLR 81:
    

... the Constitution, s 155(4), involves at least a grant of power to the courts. I consider that the sub-section gives unfettered discretionary power both to this [Supreme] Court and the National Court so to tailor their remedial process to the circumstances of the individual case as to ensure that the primary rights of parties before them are protected. [emphasis added]

30. The individual case here involves one with many thousands of East New Britain community members directly, or indirectly, involved, and a resource business enterprise of significant worth. To exclude from the jurisdiction of the National Court a discretionary remedial power to order a stay of an interim injunction when it is necessary to do justice in the circumstances of the individual case would be contrary to s 155(4) of the Constitution.
    
31. Were it to be found that a stay order was outside of the jurisdiction of the National Court, the only remedy for the defendants would be an appeal of the original injunctive order, or the order refusing to set it aside. An appeal would only serve to interrupt the proceeding and distract the parties from achieving efficient resolution, either by way of mediation or trial. Such an approach would be detrimental to both parties, and the East New Britain community. The recognition of the availability of a power to stay an interim injunction in a circumstance of the type here provides a mechanism to ensure justice rather than awaiting the outcome of an appeal process.
    
32. Having said that, subject to issues of res judicata, it would ordinarily be open to the defendants to apply to set aside the interim injunction in accordance with O 12, r 8. Limiting the power of the National Court to this mechanism though would arguably be contrary to the interests of the plaintiffs. Here, if the court is to accede to the defendant’s request, the order will be made pursuant to O 12 r 1 and be in the nature of a ‘stay’, rather than be one involving a ‘setting aside’ of the injunction under O 12 r 8. The outcome currently sought pauses the injunction rather than abolishes it.
    
33. Were the injunction set aside, to then obtain a further injunction, if necessary, a fresh application would be required by the plaintiffs. Instead, the defendant is proposing a stay on the injunction, with the plaintiffs at liberty to apply to restore it on two days notice. As such, a conclusion that the National Court has the power to order a stay further protects the rights of the plaintiffs.
    
34. I conclude that it is within the jurisdiction of the National Court to order a stay of an interim injunction after inter parte hearings. That is, the National Court has such a power in accordance with s 155(4) of the Constitution, and it is a power exercisable in accordance with O 12 r 1 of the Rules. It is then to be considered whether that power should be exercised in favour of the defendants in this matter.
    

SHOULD A STAY BE GRANTED

35. As to whether the power to order a stay should be exercised in the current matter, the defendants submit that the guarantee meets the concern of the plaintiffs in having sought the injunction. It is submitted therefore, that upon receipt of the guarantee funds in country it is appropriate that the injunction is lifted.
    

Legal exercise

36. The defendants submit that the principles from McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279 as to the discretionary exercise when granting a stay are relevant. This authority was concerned with the principles that inform the grant or refusal of a stay being considered pursuant to s 19 of the Supreme Court Act. The starting premise of such a stay, being that the judgment creditor is entitled to the benefits of the judgment, introduces an arguably distinguishable starting point to what arises here.
    
37. Nonetheless, the principles are not irrelevant, and I am satisfied it provide sound guidance to the exercise of the discretion to be considered in the National Court, on an application of s 155(4) of the Constitution and of O 12 r 1 of the Rules. In Ombudsman Commission v Gabriel Yer & Ors [2009] PGSC 45, SC1041, Injia CJ explained at [9]:
    

.... it is not intended that the discretion should be exercised on all or selected consideration(s). The circumstances of a particular case may warrant greater or less or even no weight at all to be given to a particular consideration(s).

38. The plaintiffs oppose the application, submitting that there are two aspects to be determined. The plaintiffs submit that firstly there is a consideration whether the guarantee funds ought to be endorsed by the court, and secondly, whether there ought to be a guarantee and a stay.
    
39. However, I do not understand the defendant’s application to be so framed. The defendant’s position is an ‘all or nothing’ one. That is, either the guarantee funds are made available, and the injunction is lifted (by way of a stay) or the injunction remains and no guarantee funds are provided. Given it is the defendant’s application, I will consider the matter with reference to the orders they seek.
    
40. The defendant’s submission is that the injunction, being a mareva injunction, is one directed towards preventing the disposal of assets to defeat judgment. It is submitted, therefore, that a guarantee of funds addresses the concern held by the plaintiffs in the originating summons, and by having sought the injunction. Further, it is submitted that to the extent that the originating summons is concerned with land ownership and lease agreements, that these are matters either not in contention or are more appropriately determined through a separate proceeding.
    

Consideration

Land ownership and Lease agreements

41. As to the last of these, that is, the issue of land ownership and agreements, the plaintiffs do not agree these matters are not in issue. As they have consistently submitted throughout these proceedings, the plaintiff’s position as to land ownership and the status of lease agreements does entirely correspond with the defendant’s view. To this extent, they submit that the guarantee does not meet the concern of the plaintiffs as expressed in the originating summons.
    
42. It is difficult to ignore the submission of the plaintiffs in this regard. The defendants rely on affidavit material that they say establishes the lack of controversy and which I have considered. Additionally, there have recently been joined as the seventh, eighth and ninth defendants to the proceeding customary landowners whose position as to this aspect of the declarations sought by the plaintiffs is not clear to me. Whether the issue of land ownership and lease agreements is as uncontroversial as submitted by the defendants remains to be determined at the substantive hearing.
    

Adequacy of bank guarantee

43. Nonetheless, it remains that a primary contention in the originating summons is for declaratory relief that results in an independent valuation report for contended underpayments and losses that are sought to be become payable forthwith.
    
44. As already observed, the defendants submit that the guarantee addresses this primary aspect of the cause of action. I do not accept this submission for two reasons.
    
45. Firstly, the injunction ordered here does not solely reflect the characteristics of a mareva injunction or order. If it did, the application may, without other considerations, have merit.
    
46. However, it is erroneous to characterise it as solely a mareva injunction, or order. In my view, the injunction sought, and granted, did not simply restrain financial assets and activities in contemplation of final relief: Mareva Compania Naviera SA v International Bulkcarriers SA [1980] 1 All ER 213. The injunction here also involves that:
    

the defendants be in the interim restrained from any and all logging activities, oil palm processing activity and any and all operations on the portion of land more particularly described as Portion 611c, Pomio, East New Britain Province on including any and all extended areas.

47. The plaintiffs submit that the injunctive relief sought extended to seeking to prevent any trespass on customary land by the defendants. The defendants submit that no relief as to trespass has been claimed or pleaded. I am not persuaded that is a necessary prerequisite: O 12 r 1 of the Rules. Additionally, as I observed at the time of refusing the application to set aside the injunction (at [22]):
    

... 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.

48. In this sense, the injunctive relief granted also has characteristics of quai timet precautionary injunctive remedy (as to which, see Medaing v Ramu Nico Management (MCC) Ltd [2011] PGSC 40, SC1144 (and the authorities cited therein) and Redland Bricks Ltd v Morris [1969] 2 All ER 576). It follows that a bank guarantee, promising financial compensation, does not entirely address the basis of the interim injunctory relief.
    
49. Secondly, inherent in the determination of the court to issue the injunction, and to refuse to set it aside, is that damages are not an inadequate remedy. As the plaintiffs submitted, this is a critical consideration by the court in the decision as to whether injunctive relief should be ordered (see, Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1, SC853 and the authorities cited therein, and Craftworks Niugini Pty Ltd v Allan Mott [1997] PGSC 6, SC525). This was a matter that was, inferentially, considered by the court in the initial grant of the interim injunction, and was considered when application to set aside was refused: Simbali Land Group Inc & Ors v Tzen Niugini Ltd & Ors [2025] PGNC 514, N11659 at [21] – [23]. As observed in that judgment at [23]:
    

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.

Other considerations

50. Returning then to particularly relevant principles from McHardy v Prosec Security and Communication Ltd:
    
    • (a) I accept that hardship, inconvenience, or prejudice to the defendants arises from the injunction. I am not satisfied that this is beyond what was contemplated and acknowledged by the court from the initial grant of the injunction and afterwards. There would be hardship, inconvenience or prejudice to the plaintiffs were the stay granted at this time.
      
    • (b) The balance of convenience continues to be finely balanced. In support of the application, the fifth defendant has deposed to the ongoing significant losses being occasioned by the restraint on operations. On behalf of the third plaintiffs, it is deposed that they continue to be victims and are “helpless”, but they maintain their support for the strength that the interim injunction provides. I am satisfied that the balance of convenience favours the continuity of the inunction to maintain the status quo as it now is.
      
51. Finally, as to the overall interests of justice, it is not an easy decision for this Court to continue the injunction. The period since the initial grant of the injunction has shown that there are matters of significant contention, and tension, between the parties, and efficient resolution may not be achieved in the short term. The longer the injunction remains in place, the longer all parties may suffer. I also accept the defendant’s submission that there is becoming a real issue as to the capacity of the plaintiffs to recompense the defendants if it became necessary for the undertaking as to damages to be realised.
    
52. However, I am not persuaded that the overall interests of justice warrant acceding to the defendant’s application at this time. The sound, reasonable, and just basis for the granting of the injunction in the first place, and for the refusal to set it aside, remains.
    

CONCLUSION

53. Having so concluded, there is nonetheless no impediment to the defendants proceeding, as the plaintiffs submit, to make the bank guarantee offered as a show of ‘good faith’. This matter is anticipated to be the subject of a mediation process in the near future, and any steps that can be taken by either party to progress this matter to resolution are in the interests of justice.
    

Liberty to apply

54. I am otherwise concerned that the multiplicity of applications brought to date with respect to the interim injunction and the orders made, may now raise res judicata once, or if, there is resolution, or progress towards that, from the mediation. For clarity and to ensure there is a power for the court to dissolve the injunction by whatever appropriate order arises following mediation, I will make an order that grants liberty for the parties to apply to give effect to this.
    
55. This should not be misunderstood as granting liberty to the defendants to re-agitate the application to set aside or to stay the injunction on the same basis as has occurred to date. Whether such application is further made, and on what basis, is a matter that will need to be separately determined if it arises.
    

ORDERS

56. For those reasons, the following orders are made:
    
    • (1) The application by the first, second, third, fourth, and sixth defendants in notice of motion filed 23 October 2025 for the grant of a stay on the provision of a bank guarantee is refused.
      
    • (2) In accordance with the interim injunction order providing that it is in place until further orders of the court, the parties, either severally or individually, have leave to apply to finalise the interim injunction at the conclusion of the mediation process.
      
    • (3) Costs in the cause.
      
    • (4) The time for entry of these orders is 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 first, second, third, fifth and sixth defendants: Ashurst Lawyers
Lawyers for the seventh and eight defendants: Ainui Legal Services

Lawyers for the ninth defendant: Cherake Lawyers