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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA No 73 of 2007
BETWEEN
CAL EXPORTS LTD
Appellant
AND
CAMP ADMINISTRATION LTD
Respondent
Waigani: Injia CJ, Lay and Yagi JJ
2008: 27th September
2009: 3rd July
CIVIL- appeal - stay of petition to wind up company before company put into liquidation - source of jurisdiction - meaning & purpose of Companies Act s297 - principles for setting up a counterclaim to oppose a petition to wind up a company - standard of proof required of counterclaim.
Facts
Cal Exports brought a petition pursuant to s.291(2)(c) of the Companies Act to wind up Camp Administration based on an undisputed debt. Camp Administration moved the National Court by motion to stay the petition proceedings pursuant to s297 of the Companies Act on the basis that it had a counterclaim.
Held
1) Section 297 of the Companies Act is concerned with proceedings other than the petition presented under s291(2)(c) which petition is a condition precedent to jurisdiction under s297;
2) The jurisdiction to stay a petition, presented under Companies Act s.291(2)(c)to wind up a company, before the company is put into liquidation, is the inherent jurisdiction of the Court to prevent an abuse of its process. Application could be made under National Court Rules 08 r27 or O12 r40;
3) where a company sets up a counterclaim to prevent an order for winding up on a petition founded on an undisputed debt it must establish:
a) that there is a genuine and serious counterclaim, one of substance;
b) that the counterclaim is in an amount exceeding the amount of the petitioner's debt;
c) that the company has not been able to litigate the counterclaim.
4) Where the company establishes a genuine and serious counterclaim in an amount exceeding that of the petitioner's debt; and that it has not been able to litigate that claim, the Court should then ask; are there any special circumstances which dictate that the petition should not be stayed or dismissed? If there are not, the petition should be stayed or dismissed.
5) If there is a genuine qualifying counterclaim, it is not relevant that the debt on which the petition is founded is undisputed. In the absence of special circumstances the petition ought to be stayed or dismissed.
6) If a counterclaim is not made out to the required standard and amount the winding up order should be granted.
Cases Cited:
Papua New Guinea Cases
Wep Kilip re In the Matter of Kamsi Trading Ltd (2005) SC789
Quan Resources Pty Ltd (In Liquidation) v Australia & New Zealand Banking Group (PNG) Ltd [1977] PNGLR 687
In the Matter of the Companies Act 1997; and In the Matter of an Application by James Sinton Spence, Liquidator of Sepik Coffee JV Ltd (In Liquidation) N3225 (2005)
Overseas Cases
In Re a Company [1894] UKLawRpCh 61; [1894] 2 Ch 349.
Bryanston Finance v de Vries (No. 2) [1976] 1 Ch 63 (CA)
Nemesis Holdings Ltd v North Harburn Industries Holdings Ltd (1989) 1 PRNZ 379
Drive Holdings Ltd v Mission Bay Pharmacy Ltd HCNZ CIV2005-404-6979 (17 May 2006)
Mission Bay Pharmacy Ltd v Drive Holdings [2006] NZCA 149.
Smith, Fleming & Co's Case, Gledstanes & Co's Case [1866] UKLawRpCh 84; (1866) 1 Ch App 538
Bowkett v Fuller's United Electric Works Ltd [1923] 1KB 160; [1922] All ER 281;
Anglo-Baltic & Mediterranean Bank v Barber & Co., [1924] 2 KB 410; [1924] All ER 226
Calgary and Edmonton Land Co Ltd [1975] 1 All ER 1046
Seawind Tankers Corporation v Bayoil SA [1998] EWCA Civ 1364
Re Portman Provincial Cinemas Ltd (1964) 108 Sol. Jo. 581
Re L H F Wools Ltd [1970] Ch. 27 (CA)
Covington Railways Ltd v Uni Accommodation Ltd [2000] NZCA 230
References
Constitution
Companies Act 1997
Companies Rules
Australian Corporations and Securities Law Reporter
The Underlying Law Act 2000
Counsel
S MacDonald, for the Appellant
I Shepherd and M. Henao, for the Respondent
3rd July, 2009
1. BY THE COURT: Mr Allen (Charlie) Maxwell is a director and shareholder of the Appellant, Cal Exports Ltd. For a period Mr Maxwell was the Managing Director of the Respondent, Camp Administration Ltd. During that period, on behalf of Camp Administration Ltd, Mr Maxwell ordered goods from Cal Exports Ltd to the value of AU$46, 304.66, after payment of $200, leaving an unpaid balance of AU$ 46, 304.66.
2. Cal Exports served a creditor's demand for payment on Camp Administration, to which Camp Administration did not respond.
3. Cal Exports then filed and served a petition to wind up Camp Administration and Camp Administration applied by motion in the petition proceedings for an order to stay the proceedings pursuant to the provisions of the Companies Act s.297. The National Court granted the order for a stay and Cal Exports appeals.
4. The issues raised by the appeal are:
a) Does s.297 of the Companies Act give jurisdiction to stay a petition to wind up a company and if not what is the source of that jurisdiction?
b) How should the jurisdiction to stay proceedings on a petition to wind up a company be exercised when the debt is not disputed but a counterclaim is set up in defence?
c) Whether the Petition should have been permanently stayed?
Does s.297 of the Companies Act Give Jurisdiction to Stay a Petition to Wind up a Company, and if not what is the source of that jurisdiction?
5. Section 297 of the Companies Act is in the following terms:
"At any time after the making of an application to the Court under Section 291 (2) (c) to appoint a liquidator of the company and before a liquidator is appointed, the company or any creditor or shareholder of the company may-
and the Court or the Supreme Court, as the case may be, may stay or restrain the application or proceeding on such terms and conditions as it thinks fit."
6. An early example of a similar provision was contained in the United Kingdom Companies Act 1862-1867 s.85 which read as follows:
"The Court may at any time after the presentation of a petition for winding up a company under this Act and before making an order for winding up the company, upon the application of the company, or of any creditor or contributory of the company, restrain further proceedings in any action, suit or proceeding against the company, upon such terms as the Court thinks fit. The Court may also at any time after presentation of such a petition and before the first appointment of liquidators, appoint provisionally an official liquidator of the estate and effects of the company. "
7. In relation to that provision, Vaughan Williams J, a highly respected judge in company matters said:
"That seems to relate only to restraining proceedings other than those taken with a view to obtaining a winding up order. But the court has an inherent jurisdiction to stay proceedings where they amount to an abuse of its process. That is a well-recognised principle." See In Re a Company [1894] UKLawRpCh 61; [1894] 2 Ch 349.
8. That citation has been relied upon by Australian texts for the same proposition in respect of a similar provision in the Australian Corporations Law (s 472(2) (formerly s467(7)): See Australian Corporations and Securities Law Reporter paragraph 144-320.
9. The English position has not deviated in the following century, although the same or a similar provision has been included in successive Companies Acts. The power to stay a petition before it is heard or to prevent its presentation, as distinct from the power to stay a winding up proceeding after the liquidator has been appointed, has always been regarded as founded in the court's inherent jurisdiction to prevent an abuse of its process.
10. In Bryanston Finance v de Vries (No. 2) [1976] 1 Ch 63 (CA) the Respondent threatened to present a petition for the winding up of the company based on allegations of fraudulent conduct. The Respondent was the holder of a very small parcel of shares. The appellant brought proceedings for an injunction to prevent the presentation of the petition; and the injunction was granted.
11. On appeal from the grant of the injunction Buckley LJ said:
"If it be asked what legal right the plaintiff company relies on in the second action from a violation of which the plaintiff company is seeking temporary protection pending the trial of the action, the answer must be, it seems to me, the right not to be involved in litigation which would constitute an abuse of the process of the court. But the plaintiff company cannot assert such a right in respect of any particular anticipated litigation without demonstrating that, at least prima facie, that litigation would be an abuse.
If it could now be said that, on the available evidence, the presentation by the defendant of such a petition as is described in the injunction would prima facie be an abuse of process, the plaintiff company might claim to have established a right to seek interlocutory relief. Otherwise I do not think it can. If it were demonstrated that such a petition will be bound to fail, it could be said that to present it, or after presentation to seek to prosecute it, would constitute an abuse: Charles Forte Investments Ltd v Amanda [1964] Ch 240.. (page 78C). It has long been recognised that the jurisdiction of the court to stay an action in limine (at the threshold) as an abuse of process is a jurisdiction to be exercised with great circumspection and exactly the same considerations must apply to quia timet injunctions to restrain commencement of proceedings. These principles are, in my opinion, just as applicable to a winding up petition as to an action.
12. Stevenson LJ who agreed with the judgement of Buckley LJ said:
"It is the practice for a company which objects to a shareholder’s improperly presenting a petition to wind it up to move for an injunction to restrain him: the court's jurisdiction to do so is a facet of its inherent jurisdiction to prevent an abuse of its process: Charles Forte Investments Ltd v Amanda [1964] Ch 240 and Mann v Goldstein [1968] 1 WLR 1091, 1093-1094. But the method of applying does not transform the substance of the proceeding or the nature of what the applicant has to prove. If he applied to strike out the petition under the inherent jurisdiction or under RSC Order 18 r.9(1)r.9(1)(d) and (3) he would not to be able to rely upon anything said by the House of Lords in the American Cyanamid case..."
13. Sir John Penicuik agreed with Buckley LJ and considered that American Cyanamid was concerned with interlocutory injunctions, but the stay of a right to present a petition was the final relief and the observations in American Cyanamid were not appropriate to the circumstances.
14. In New Zealand, s247 of the Companies Act is identical to our s297, apart from a reference to the Court of Appeal rather than the Supreme Court. In referring to the jurisdiction of the court to stay a winding up proceedings before the company is put into liquidation where the debt is genuinely disputed, it has been held that jurisdiction stems from the inherent jurisdiction of the court. In Nemesis Holdings Ltd v North Harburn Industries Holdings Ltd (1989) 1 PRNZ 379, 385, a case concerning a disputed debt rather than a counterclaim, Wallace J said at [8]:
"... (b) The jurisdiction is an inherent one to prevent abuse of process. There is no inflexible rule. (c) The governing consideration is whether the proceedings suggest unfairness or undue pressure. (d) it is a serious matter to stay winding up proceedings, so that the decision to do so is never made lightly. The onus is on the applicant and it is normally necessary to demonstrate "something more" than the balance of convenience considerations which are usually considered on an application for an interim injunction. If the defendant company has had an opportunity to file appropriate affidavits, such defendant is required to establish a strong prima facie case of the existence of a genuine dispute on substantial grounds as show that there are clear and persuasive grounds for a stay".
15. The New Zealand Court of Appeal in the case of Covington Railways Ltd v Uni Accommodation Ltd (infra at 27) notes that the point of establishing a genuine set off or counterclaim is that it shows that the winding up process is being used in an improper way, i.e. an abuse of the process.
16. In the New Zealand High Court in the case of Drive Holdings Ltd v Mission Bay Pharmacy Ltd HCNZ CIV2005-404-6979 (17 May 2006) Associate Judge J.P. Doogue, the plaintiff sought an order to put the defendant into liquidation. The application was based on a judgement debt. The judgement was obtained after an inter-parties hearing at which the defendant put forward a counterclaim, which the judge dismissed. The defendant appealed against the dismissal of its counterclaim. The appeal had not been heard at the time of judgement in the winding up proceedings. The defendant applied for a stay of the winding up proceedings pursuant to s247 of the Companies Act 1993, the equivalent of our s297. The learned associate judge observed [8] that:
"The defendant has filed an application for a stay of proceedings, which purports to be based upon s247 of the Companies Act 1993. That is plainly misconceived because that section does not have any application to the present circumstances."
17. The case went to the Court of Appeal after further hearing in the High Court on a completely different issue and the appeal was dismissed: Mission Bay Pharmacy Ltd v Drive Holdings [2006] NZCA 149.
18. We have not been referred by counsel to any case which supports the proposition that s297 gives the court jurisdiction to stay the petition, the filing of which is a condition precedent to the exercise of the powers given by the section. Our researches in the English, Australian and New Zealand law have not found any case on a similar section which holds that the section gives jurisdiction to stay the petition giving rise to jurisdiction under the section. In that regard we gratefully acknowledge the research assistance provided by Ms Lenore Hamilton, Director, Paclii.
19. Our conclusion is that the power to stay a petition to wind up a company presented pursuant to s291 of the Companies Act, before the liquidator is appointed, is founded in the inherent jurisdiction of the court to prevent abuses of the process of the court. In terms of rules of court, an application could be based on National Court Rules O8 r 27 (a pleading which is an abuse of the process of the court) or similarly O12 r40, because the Companies Rules Rule 2 provides:
"Subject to the Companies Act and these Rules, the Rules of Court of the National Court and the general practice of that Court, including the course of procedure and practice in Chambers, apply in relation to proceedings to which these Rules relate as far as is practicable".
20. Section 297 of the Companies Act gives jurisdiction to the court to stay proceedings where an application is made to appoint a liquidator under s291(2)(c) and at the same time there is another application or proceeding against the company in the National Court or the Supreme Court or any other Court or tribunal which is pending. Section 297 enables the company or any creditor or shareholder to make an application in that other application or proceeding to stay those proceedings until the application under s291(2)(c) is determined. The application is made in the other proceedings and before the Court in which the application or proceedings is pending, except that if the proceeding is in a court outside the National Judicial System the application is made to the National Court. The application will involve a proper hearing on notice with the opportunity for the party who brought the application or proceeding to be heard. The purpose of an application made under s297 is to maintain the status quo of those other proceedings, to protect the assets of the company, on the principle that once the company is put into liquidation all unsecured creditors should be on an equal footing and share pari passu in the assets available for distribution among the creditors: Smith, Fleming & Co's Case, Gledstanes & Co's Case [1866] UKLawRpCh 84; (1866) 1 Ch App 538 at 545. Thus once a petition is presented a person qualified under section 297 should be able to prevent a plaintiff from rushing to judgement and execution in pending proceedings in order to be paid in full, and thus reduce the pool of assets available for distribution amongst creditors, after a petition is presented but before a winding up order is made under s291. For that reason a stay order granted under s297 is usually granted to stay all proceedings against the company: Bowkett v Fuller's United Electric Works Ltd [1923] 1KB 160; [1922] all ER 281; Anglo-Baltic & Mediterranean Bank v Barber & Co., [1924] 2 KB 410; [1924] all ER 226.
21. An application to stay the proceedings on a winding up petition presented under s291(2)(c) before the company is put into liquidation involves different considerations. The application is made pursuant to the court's inherent jurisdiction to stay an application made under s.291 (2) (c). Any person who has sufficient interest in the company such as the company itself, a shareholder, director or a creditor can bring an application to stay the s291(2)(c) application on the grounds that the application amounts to an abuse of the process of the court. The purpose of the application is to prevent abuse of the court process by an applicant who seeks to liquidate the company on some misconceived or unmeritorious grounds.
How should the jurisdiction to stay proceedings on a petition to wind up the company be exercised when a counterclaim is set up in defence?
22. We were referred to the cases of Calgary and Edmonton Land Co Ltd [1975] 1 All ER 1046, Quan Resources Pty Ltd (In Liquidation) v Australia & New Zealand Banking Group (PNG) Ltd [1977] PNGLR 687; In the Matter of the Companies Act 1997; and In the Matter of an Application by James Sinton Spence, Liquidator of Sepik Coffee JV Ltd (In Liquidation) (2005) N3223 and Wep Kilip re In the Matter of Kamsi Trading Ltd (2005) SC789. We distinguish those cases from the present case on the basis that those cases concerned applications to stay or to terminate a liquidation, which had already commenced, in respect of which different considerations apply, because in that situation a judgement has already been made that the company is insolvent.
23. Where the application is to stay the petition before the appointment of a liquidator, as we have said, the application is really one to prevent an abuse of the processes of the court, usually, either because:
a) The allegations in the petition do not entitle the presentation of a petition or the petitioner is not qualified to petition; or,
b) the debt is genuinely disputed and the petitioner cannot really claim to be a creditor until the debt is established. Thus the petitioner is not qualified to present the petition; or,
c) the company has a genuine counterclaim, which exceeds the petitioner's debt, and the petitioner cannot be allowed to visit the Draconian remedy of winding up on a company, when there are a real prospects that the petitioner's debt will be satisfied by bringing the counterclaim to judgement.
24. This case falls into the latter category. In the case of Seawind Tankers Corporation v Bayoil SA [1998] EWCA Civ 1364, Bayoil chartered a tanker from Seawind to carry a cargo of oil from Iraq to the USA. During the voyage one of the 2 engines of the vessel broke down, delaying the vessel's USA ETA by a month. A dispute between the parties was referred to arbitration in London. Seawind claimed freight and diversion expenses (the ship was diverted to South Africa to unload the cargo) and Bayoil claimed a breach of the charter party, breach of warranty as to the condition of the ship and as to its maintainable speed. An interim and final award was made in favour of Seawind in accordance with the well-established rule that freight must be paid free of all deductions. Seawind served a statutory demand for the award and interest. The demand was not disputed nor paid. Seawind served a petition to wind up Bayoil.
25. Bayoil contended that it had a genuine and serious counterclaim which it had been unable to litigate, in an amount exceeding the petitioner's debt. The trial judge held that he had an unfettered discretion and that in the case, although he accepted the contention of Bayoil with respect to the counterclaim, the winding up order should be granted.
26. The Court of Appeal held that the winding up order should be discharged and the question of whether the petition should be stayed pending the outcome of the counterclaim, or dismissed, should be discussed with counsel after the court's order was made.
27. Nourse LJ (with whom Ward and Mantell LJJ agreed) held that:
a) once the court comes to the conclusion that:
b) the court should ask itself are their special circumstances, which make it inappropriate for the petition to be dismissed or stayed?
c) If there is a genuine qualifying counterclaim, it is not relevant that the debt on which the petition is founded is undisputed. In the absence of special circumstances the petition ought to be stayed or dismissed.
28. The corollary is that if a counterclaim is not made out in the terms prescribed in [27] then the petition should be granted and a winding up order made.
29. The New Zealand Court of Appeal discussed the standards for establishing a counterclaim set up against an undisputed debt to prevent a winding up order in the case of Covington Railways Ltd v Uni Accommodation Ltd [2000] NZ CA 230 Gault, Keith and Blanchard JJ, in the following terms at [11]
"Where a company which is the subject of a liquidation application is indisputably indebted to the applicant creditor, it may nonetheless be able to show that it has a claim against the applicant which reduces the net balance owing to the creditor or even offsets it altogether. Where there are liquidated sums due each way, that is simply an arithmetical exercise. It is more difficult if, on the applicant's side, there is an undisputed liquidated sum but the other party’s claim is for an unliquidated sum with liability and/or quantum in dispute. Then, in order to impeach the statutory demand and overcome the presumption in s287(a) that the company is unable to pay its debts when it has failed to comply with the demand, it must be able to do more than merely assert that there is an available set off. It must be able to point to evidence before the court that it has a real basis for the claimed set off and that accordingly the applicant's claim to be a creditor is, to the extent of the set-oft, seriously in doubt. In the words of Buckley LJ in Bryanston Finance Ltd v de Vries (No. 2) [1976] Ch 63, 78 it must show that there are "clear and persuasive grounds" for the set off claim. Where this can be done, the party who has issued a statutory demand against the company will be shown to be using the statutory demand in liquidation procedure improperly because there is a "genuine and substantial dispute" about the net amount of the company’s indebtedness (Taxi Trucks Limited v Nicholson [1989] 2 NZLR 297, 299). The dispute should then be resolved in the ordinary way - except as to any undisputed balance - rather than upon the hearing of a liquidation application".
30. The principles set out at [27] are a re-statement of principles developed in such cases as Re Portman Provincial Cinemas, Ltd (1964) 108 Sol. Jo. 581 and Re L H F Wools Ltd [1970] Ch. 27 which are cited in the judgment in Seawind Tankers v Bayoil SA (supra). This is the common law of England as at 16 September 1975 and therefore part of the underlying law of Papua New Guinea: see Constitution s20 and The Underlying Law Act 2000 s3(1)(b).
Whether the Petition Ought to Have Been Stayed or Dismissed in This Case?
32. The jurisdiction being exercised by the Court in Camp Administration’s application to stay proceedings on the petition, was the jurisdiction to prevent an abuse of the process of the Court.
33. The evidence to support the counterclaim alleged by Cal Exports in this case is contained in the affidavit of James Kruse sworn 16th of March 2006 where at paragraph 8 he deposes:
"I have read the petition in these proceedings and note that the debt claimed by Cal is AU $46,304.46 which was taken into account when I prepared the Management and Operational Review. However, in view of the findings of my Investigation and Forensic Review, I consider that the Company may have a cross-claim against the petitioning creditor although I am not able to speculate on the amount of the cross-claim until further investigation has been conducted and completed. My conclusions are contained at page 13 of the investigation and forensic review."
34. A further affidavit sworn by Mr Kruse on 21 March 2006 deposes at paragraph 5 that:
"From my knowledge of the financial position of Camp Administration Ltd, and from discussions with company management, it is my understanding that the company is not paying the debt owing to Cal Exports Pty Ltd of Australia because it has a significant and greater counterclaim against Cal Exports, and possibly its directors, and not for reasons of insolvency or lack of liquidity".
35. The conclusions at page 13 of the review referred to in Mr Kruse’s affidavit of 16 March 2006 are as follows:
"The Board was aware or ought reasonably to have been aware of the potential conflict in recruiting Mr. Maxwell to the position of General Manager of Camp Administration.
At all times Mr. Maxwell remained a director of Cal Exports as well as a 50% owner of that business.
Mr. Maxwell did not introduce any procedures or protocols to remove or distance himself from dealings with his associated company in Australia. Mr. Maxwell has been almost exclusively responsible for generating, authorising and approving all purchases from Cal Exports. Despite assurances to the contrary made at the time of his recruitment, there was no evidence on file to suggest that Mr. Maxwell made attempts to source equivalent products in PNG before purchasing from Cal Exports. Despite assurances to the contrary in April 2002, there is no evidence to suggest that Mr. Maxwell obtained quotations from PNG-based suppliers to ensure that Cal Exports prices were at a "significantly cheaper price than available in PNG". Our review of a selection of goods purchased from Cal Exports during 2004 and 2005 indicates that a large number of these products are available in PNG at prices significantly less than the cost of purchasing from Cal Exports. Mr Maxwell has, with only minor exceptions been responsible for approving Cal Export invoices for payment. Mr. Maxwell has, on a number of occasions, been responsible for the signing of cheque payments in favour of his associated company. It is our opinion that Mr. Maxwell has not acted in the best interests of CA in respect of dealings with his associated company, Cal Exports."
36. The Report is footnoted "March 2005.doc" and Mr Kruse deposes that it was prepared in April 2005. The petition was filed on 6 January 2006 and Camp Administration’s motion to stay the proceeding was filed on 20 March 2006.
37. In our opinion the law which applies in Papua New Guinea is properly stated in the case of Seawind Tankers Corporation v Bayoil SA. in the terms that we have set out at [27].
38. The evidence required to establish a genuine and serious counterclaim, one of substance, one with clear and persuasive grounds, in a sum which exceeded the petitioner’s debt was simply not before the trial judge. Mr Kruse made it clear in his affidavit of 16 March 2006 that he could not quantify any counterclaim. The evidence in his later affidavit that the counterclaim exceeded the petitioner's debt is not his calculation, it is hearsay and cannot really be given any weight in the context that no evidence was given by an officer of the company.
39. Camp Administration had 8 months before the presentation of the petition and 2 months afterwards to quantify and litigate its counterclaim. No explanation was offered as to why this was not done or why it was not possible. Specific examples of purchases made by Mr Maxwell on behalf of Camp Administration at prices higher than those available in PNG were cited in Mr Kruse’s report, suggesting that information was available from which some quantification of a counterclaim could be made. But no quantification was made and put to the National Court to support Camp Administration's application made 11 months after Mr Kruse’s report was available to the directors of Camp Administration.
40. In our opinion the evidence put forward on behalf of Camp Administration did not establish a counterclaim in the required sum and to the required degree of satisfaction. Nor did the evidence establish that Camp Administration had not been able to litigate its counterclaim in the 11 months from being in possession of the information, which indicated there may be a counterclaim, until its motion to stay the petition proceedings. The motion was not argued until two months after filing (15 May 2006) at which time Camp Administration's evidence had not improved. As the trial judge found, Camp Administration's argument was put no higher than " ... had Mr Maxwell not been in a conflict of interest situation this debt might not have been occasioned". The mere possibility of a counterclaim in an indeterminate amount is not in our view a sufficient basis for interfering with the winding up proceeding. It does not demonstrate that Cal Exports is using the winding up process for an improper purpose. In the circumstances the National Court ought to have dismissed Camp Administration's motion and granted the order for winding up.
41. Although the Supreme Court has jurisdiction to make orders which the National Court ought to have made, in this instance we are not in possession of the information which would be required to be entered in such an order, such as the name of the liquidator who has consented to act, and the description of the bank account to which proceeds of the liquidation should be paid. We will therefore return the matter to the National Court to make the appropriate orders to wind up the company.
42. In case Camp Administration is now in a position and willing to pay the debt claimed by Cal Exports, or the parties are able to enter into some compromise arrangement, we will stay entry of judgement for 14 days.
ORDERS:
_______________________________
Posman Kua Aisi Lawyers: Lawyers for the Appellant
Blake Dawson: Lawyers for the Respondent
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