Rawali v Kob [2021] PGSC 105; SC2175 (3 December 2021)

SC2175

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 68 OF 2021

BETWEEN:
JENNY RAWALI
Appellant

AND:

CEDRIC BASA KOB

Respondent

Waigani: Hartshorn J,
2021: 29^th November, 3^rd December

INJUNCTIONS - Application for an interim stay and injunctive relief

Cases Cited:
Papua New Guinea Cases

Sioti Bauf and Lavoi Nodai v. Poliamba Pty Ltd [1990] PNGLR 278
Eastern Highlands Provincial Government v. Aita Ivarato [1998] PNGLR 268 Golobadana No. 35 Ltd v. Bank of South Pacific Ltd (2002) N2309
Airlines of Papua New Guinea Ltd v. Air Niugini Ltd (2010) N4047
Koim v. O’Neil (2014) N5694
Independent Public Business Corporation of Papua New Guinea v. Motor Vehicles Insurance Limited (2015) N6584.
Kawari Fortune Resources Ltd v. Apurel (2015) SC1614

Overseas Cases

Fiona Trust & Holding Corporation v. Yuri Privalov [2008] EWHC 1478
Counsel:

Mr. J. Napu, for the Appellant
Mr. E. Ellison, for the Respondent

3^rd December, 2021

1. HARTSHORN J: This is a decision on a contested application for a stay and injunctive relief.

Background

2. The appellant appeals against a National Court judgment which dismissed a proceeding for want of prosecution (decision appealed).

3. The respondent had obtained an order from the District Court to evict the appellant from a certain property (property). The respondent maintains that he has the State Lease for the property. The appellant appealed the District Court order to the National Court. The National Court made the decision appealed.

4. The appellant seeks a stay of the decision appealed pending the determination of the appeal and an order that the respondent be restrained from evicting the appellant from the property on an interim and permanent basis.

Consideration

5. The first matter I consider is whether the actions of the appellant should preclude her from being granted the interim relief sought. What is sought is a stay and a restraining order, or injunction.

6. Whilst a stay is conceptually different to an injunction, they both have the effect of preserving the status quo: Kawari Fortune Resources Ltd v. Apurel (2015) SC1614 at [24]; Koim v. O’Neil (2014) N5694 at [25]. The National Court has commented that an injunction and a stay are equitable remedies: Golobadana No. 35 Ltd v. Bank of South Pacific Ltd (2002) N2309; Koim v. O’Neil (2014) N5694 at [27].

7. On the basis that the grant of a stay and of an injunction are equitable relief, an applicant for such relief must disclose all material facts. A failure to disclose material facts is fatal. I refer in this regard to Golobodana No 35 Ltd v. Bank of South Pacific Ltd (supra); Eastern Highlands Provincial Government v. Aita Ivarato [1998] PNGLR 268 in which the decision of Sheehan J in Sioti Bauf and Lavoi Nodai v. Poliamba Pty Ltd [1990] PNGLR 278 was referred to with approval; Airlines of Papua New Guinea Ltd v. Air Niugini Ltd (2010) N4047 and Independent Public Business Corporation of Papua New Guinea v. Motor Vehicles Insurance Limited (2015) N6584.

8. In this instance, after the application for a stay and injunction was filed, the applicant was evicted from the property pursuant to a valid District Court order by the respondent with the aid of members of the police force. Later that day, with the aid of some other members of the police force the appellant re-entered the property by breaking the locks on the property and re-established her possession of the property.

9. This evidence of the respondent has not been rebutted by the appellant and counsel for the appellant conceded that the applicant had re-entered the property. These material facts concerning possession of the property were not disclosed to the court before the hearing of the stay application and were only disclosed in the evidence of the respondent.

10. In an application for a stay and injunction of a National Court order to the effect that the appellant not be evicted, that the appellant has already been evicted, but then re-entered the property, is a material fact which should have been disclosed by the appellant. That such facts were not disclosed is fatal to the application for stay and injunction.

11. A further point is whether the appellant in making an application for a stay and injunction has come to court with clean hands.

12. In Independent Public Business Corporation of Papua New Guinea v. Motor Vehicles Insurance Limited (supra), the Court in considering the question of whether an applicant for injunctive relief had come to court with clean hands reproduced the following passage from Fiona Trust & Holding Corporation v. Yuri Privalov [2008] EWHC 1478 in the context of whether there was an immediate and necessary connection, “between the misconduct and the equity sued for”.

“As to what constitutes a sufficiently close connection for the maxim to apply so as to deprive an applicant of equitable relief that he would otherwise have been granted, the test commonly cited is that of “an immediate and necessary relation to the equity sued for”, which was propounded [...] in Dering v Earl of Winchelsea (1787) “If [the defendant’s submission relying upon the plaintiff’s misconduct] can be founded on any principle, it must be, that a man must come to a Court of Equity with clean hands and; but when this is said, it does not mean a general depravity; it must have an immediate and necessary relation to the equity sued for; it must be a depravity in a legal as well as a moral sense” [...]. I confess that for my part I find it difficult to understand what precisely is meant by the stipulation that there must be a “necessary” connection between the misconduct and the equity sued for. [...] [T]he question whether the maxim should apply to deprive an applicant for relief will often arise when trickery on the part of the applicant designed to promote his case has been detected and so in the event the misconduct does not assist him to advance his case, but nevertheless, leaving aside the question of “clean hands”, he would be granted equitable relief. In such circumstances it cannot be that the applicant needed to succeed in his trickery in order to obtain equitable relief. It might be that the connotation of “necessary” is that the misconduct is inherently directed towards the equitable relief sought. But what is clear from the authorities is that there must be a sufficiently immediate relationship between the misconduct and the relief. The enquiry whether the maxim is to be applied is, of its nature, fact-sensitive, and there is a danger in making any general statements about the limits of its application. However, the authorities do, I think, justify these observations: that the maxim is directed, at least typically, to conduct that is in some way immoral and deliberate; that not all misconduct deprives an applicant of equitable relief and the misconduct may be too trivial for it to import this consequence; and the court will assess the gravity and effect of misconduct cumulatively, so that, while the elements of misconduct taken individually might be too trivial for the maxim to be applied, they might be sufficient taken together.”

13. In this instance, in the context of an application by the appellant for a stay and injunction to prevent eviction from a property, the conduct of the appellant in re-entering the property in contravention of a valid court order is conduct that has, “an immediate and necessary relation to the equity sued for” and is conduct that is “a depravity in a legal as well as a moral sense”.

14. Further, I mention that this court should be slow to in any way countenance conduct which is prima facie unlawful. That the appellant was accompanied and assisted by members of the police force in her re-entering of the property does not bestow upon the appellant’s conduct any modicum of legitimacy.

15. To my mind, the actions of the appellant are sufficient to deprive her of the equitable relief which she seeks. Consequently, for the above reasons, the relief sought by the appellant should be refused. Given this, it is not necessary to consider the other submissions of counsel.

Orders

16. It is ordered that:

a) The application of the appellant filed 9^th August 2021 is dismissed;

b) The appellant shall pay the costs of the respondent of and incidental to the said application.
__________________________________________________________________
Napu and Company Lawyers: Lawyers for the Appellant
Luther Lawyers: Lawyers for the Respondent