Gabe v Tolukuma Gold Mines Ltd [2019] PGSC 2; SC1760 (9 January 2019)

SC1760

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 56 of 2016

BETWEEN:
JAMES GABE and OTHERS
Applicant

AND:
TOLUKUMA GOLD MINES
LIMITED
Respondent

Waigani: Hartshorn J
2018: 13^th December
2019: 9^th January

Application for leave to continue proceedings against a Company in Liquidation

Counsel

Mr. J. Gabe, the Applicant, in person
Mr. C. Joseph, for the Liquidator of the Respondent

9^th January, 2019

1. HARTSHORN J: The applicant, James Gabe, seeks leave to continue legal proceedings against the liquidator of the respondent, Tolukuma Gold Mines Ltd (TGM). If leave is granted, Mr. Gabe also applies for judgment to be entered against the liquidator for unpaid taxed costs in the sum of K 99,892.00. Mr. Gabe seeks leave to continue as s. 298(1)(c) Companies Act 1997 prevents legal proceedings being continued against a company in liquidation without the consent of the liquidator or approval of the National Court.

2. The applications are opposed by the liquidator of TGM.

Background

3. Mr. Gabe filed an application to review on 16^th March 2017 to review the decision of the National Court to dismiss National Court proceedings WS 288 of 2006 for want of prosecution. The application to review was granted on 31^st January 2018 and TGM was ordered to pay costs of the review on a party and party basis.

4. On 7^th February 2018, TGM was placed into liquidation by an order of the National Court in MP 50 of 2017 and further, the National Court appointed Mr. Andrew Pini to act as the liquidator of TGM.

5. On 9^th March 2018, Mr. Gabe filed a certificate of taxation for the sum of K99,892.00.

Application for leave to continue proceedings against liquidator

Preliminary

6. The liquidator takes issue with the application of Mr. Gabe filed 7^th December 2018 on the basis that the provisions of the Supreme Court Act and Supreme Court Rules cited by Mr. Gabe do not provide this Court with the jurisdiction to grant the orders that Mr. Gabe seeks.

7. Section 8(1)(a) Supreme Court Act, cited by Mr. Gabe in his application, is concerned with the production of documents or other things. It does not grant this Court the power to continue legal proceedings, and against a company in liquidation. Order 3(2)(d) Supreme Court Rules, cited by Mr. Gabe in his application, concerns this Court’s power in relation to the production of documents or other things, the examination of witnesses and the reception of evidence. It does not grant this Court the power to continue legal proceedings, and against a company in liquidation.

8. Consequently, the application of Mr. Gabe is incompetent and should be dismissed. Given this it is not necessary to consider the other submissions made by Mr. Gabe and counsel for the liquidator.

Orders

9. The Court orders that:

a) The application of the applicant, James Gabe, filed 7^th December 2018 is dismissed;

b) The applicant, James Gabe, shall pay the costs of the liquidator of the respondent of and incidental to the said application on a party party basis, to be taxed if not otherwise agreed.
__________________________________________________________________
Mr. James Gabe, the Applicant, in person
Ashurst: Lawyers for the Liquidator of the Respondent