Tutuman Development Ltd v Growmax (PNG) Ltd [2015] PGSC 7; SC1407 (6 February 2015)

SC1407

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 71 OF 2011

BETWEEN:

TUTUMAN DEVELOPMENT LIMITED
Appellant

AND:

GROWMAX (PNG) LIMITED
Respondent

Waigani: Salika DCJ, Hartshorn J, Kassman J.
2014: 30th April,
2015: 6th February

Appeal from single Supreme Court Judge

Cases cited:

Ronson Products Ltd v. Ronsen Furniture Ltd [1966] 1 Ch. 603
Ross Bishop and Ors v. Bishop Brothers Engineering Ltd and Ors [1988-89] PNGLR 533
Daiva and Anor v. Pukali and Anor (2002) N2289

Counsel:

Mr. F. Griffin, for the Appellant
Mr. M. Titus, for the Respondent

6th February, 2015

1. BY THE COURT: The appellant appeals from parts of a decision and orders of a single judge of the Supreme Court. The appeal is filed pursuant to Order 11 Rule 25 Supreme Court Rules. The appeal is opposed by the respondent.

2. The appeal is against the learned judge's decision that the alleged contemnors' Messrs Kiong Mee Hii and Huo Mee Hii, had no case to answer for and in respect of contempt charges that had been laid against each of them.

3. The appellant sued the respondent and its registered directors Messrs Kiong Mee Hii and Huo Mee Hii, for contempt for breach of a Supreme Court Order dated 1st July 2011 (1/7/11 Order). The appellant contended that the respondent had refused and failed to comply with the 1/7/11 Order by not returning certain vehicles and other items as ordered.

4. Counsel for the appellant made oral and written submissions in respect of the grounds listed in the appellant's notice of motion. They were that the learned judge should have found that:

a) there was credible evidence that the contemnors had knowledge of the 1/7/11 Order and that it was brought to their attention;

b) the 1/7/11 Order was clear and unambiguous; and

c) there was credible evidence that the contemnors wilfully failed to comply with the 1/7/11 Order.

Knowledge of contemnors – service

5. The appellant contends that the learned judge erred in finding that the contemnors had not been served and thus had no knowledge of the 1/7/11 Order, when as registered directors of the respondent, they were presumed to have knowledge of the 1/7/11 Order as it was served on the respondent's address for service. Further, no application had been made to vary or set aside the 1/7/11 Order since it was made.

6. The appellant further contends that the learned judge should have found that consistent with the 1/7/11 Order being properly served on the registered address of the respondent, the contemnors being registered and proper officers of the respondent should have and did have knowledge of the 1/7/11 Order.

7. Reliance is placed upon the National Court decision of Kandakasi J in Daiva and Anor v. Pukali and Anor (2002) N2289 and on amongst others, the following passage at p27:

"....when an order is directed at a company, it is the duty of the appropriate company officials to ensure that the order is complied with. If there is difficulty with that, than (sic) appropriate steps must be taken by them to apply for a stay, a set aside or variation it (sic) as the case may be to enable compliance or compliance unnecessary.

.............. A failure on the part of the officers to take any of these steps could amount to contempt unless it can be shown that the failure was not deliberate but an oversight or a mistake."

8. The appellant concedes that the 1/7/11 Order was served upon the respondent's registered office but that there was no evidence that the 1/7/11 Order had been personally served upon the contemnors. The contemnors as directors of the respondent are presumed to have knowledge of the 1/7/11 Order, the appellant submits.

9. In this instance it is the case however, that the contemnors are the two directors of the respondent. The respondent is not the contemnor.

10. In his decision the learned judge referred to amongst others, the Supreme Court case of Ross Bishop and Ors v. Bishop Brothers Engineering Ltd and Ors [1988-89] PNGLR 533 as setting out the "elements of contempt". In Bishop v. Bishop (supra), Barnett J said at p545:

"To sustain an action for contempt of a court order there must be proof beyond reasonable doubt that it has been properly served "upon the alleged contemnor":...... Mere technical service will not be sufficient as the major element of the offence is that it must be a wilful refusal to obey the order."

11. Further, one of the authorities that was followed by Barnett J, was Ronson Products Ltd v. Ronsen Furniture Ltd [1966] 1 Ch. 603. At p614, Stamp J in considering the distinction between an order to do an act and an order prohibiting an act stated that:

"If a man be ordered to do an act, so that his failure to do it may lead him to prison, justice requires that he know precisely what he has to do and by what time he has to do it,....."

"The practical difference between an order under which a positive act is to be done and one where an act is prohibited must lead to the conclusion that the former class of order ought not to be enforced against a director unless he has been served with it so that he, like the company, knows precisely what is to be done and the period during which it has to be done."

12. In this instance the 1/7/11 Order required amongst others, the return of vehicles, units and equipment. These are positive acts that are required to be performed. In our view, the comments of Barnett J, and Stamp J as to service upon a contemnor director, are apposite to the circumstances of this case.

13. As to the comments of Kandakasi J in Daiva v. Pukali (supra) relied upon by the appellant, we do not read them as supporting the appellant's contention that in an action for contempt, a director of a company is presumed to have knowledge of an order merely by the company being served. For the reasons referred to, we are of the view that when a court order requires at least, a positive act to be performed by a director of a company, it cannot be enforced against him unless he has been properly served with the order, so that he knows precisely what it is to be done and the period during which it has to be done.

14. Given the above, we are satisfied that the learned judge did not make any error, as contended by the appellant.

15. As we have found that the learned judge did not err in finding that there was no evidence that the contemnors had been properly served and a fortiori they should have been properly served, the effect of this is that the appellant will not be successful in calling evidence in support of all five of the essential elements of the offence of contempt. Alternatively, any evidence that may be called would be such that no reasonable tribunal could enter a conviction. Consequently, it is not necessary to consider the other submissions of counsel.

Orders

16. The Orders of the Court are:

a) this appeal is dismissed.

b) the appellant shall pay the respondent's costs of and incidental to this appeal.

_____________________________________________________________
Young & Williams Lawyers: Lawyers for the Appellant
Titus Lawyers: Lawyers for the Respondent