Ian Molloy

Barrister

Commercial and Maritime

Mainland Plumbing Supplies (NG) Limited v Chow (Sawong J, 15 March 2013)
Practice & procedure – setting aside default judgment – principles – delay – explanation for default – defence on merits – inconsequential irregularities.

Pololi v Wyborn [2013] PGNC 65; N5253
Deceased estate – intestacy – jurisdiction – Public Curator Act – Will Probate & Administration Act – indefeasibility of title – Land Registration Act – Frauds and Limitations Act – powers of Public Curator – proper entity – limitation periods.

Coecon Limited v Westpac Bank Limited [2012] PGNC 292; N5097
Practice & procedure – joinder of defendant – necessary party – against whom no relief sought.

Salngat v National Forest Board [2012] PGNC 259; N4927
Interim injunction – principles – serious question – balance of convenience – adequacy of damages.

Coecon Limited v Westpac Bank Limited [2012] PGNC 221; N4926
Practice & procedure – leave to file cross-claim – discretion – time-bar.

National Capital Limited v Bank of Papua New Guinea (NC 18 December 2011)
Judicial review – application for leave – principles – arguable case – revocation of licence – Superannuation (Special Provisions) Act 2000.

Mann v Bank South Pacific Limited (NC, 31 August 2011)
Claim to term deposit – evidence – limitation period - Frauds and Limitations Act 1988.

Tau Po’o v Guinn (SC June 2011)
Companies Act – liquidator’s powers – effect of appointment – standing of director.

James Geama v OTML Shares In Success Ltd (2011) PGNC 39
Deed of Settlement establishing scheme for the benefit of employees of OTML – whether scheme rules contrary to the purpose of the Deed – whether scheme rules contrary to law.

National Fisheries Authority v New Britain Resource Development Ltd (2011) PGSC 32
Supreme Court - practice and procedure – Order 7 Rule 53 Supreme Court Rules – application to dismiss appeal for want of prosecution – delay in settling index – failure to take further steps after settlement of index.

Re Lihir Gold Ltd [2010] PGNC 102 N4126
Orders pursuant to s. 250 (1) Companies Act 1997 - scheme of arrangement to effect a merger between Lihir Gold and Newcrest Mining Ltd - matters to consider in determining whether to approve scheme of arrangement at the second court hearing.

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Oil Search Ltd v Mineral Resources Development Corporation Ltd [2010] PGSC 12 SC1022
Frauds and Limitations Act, section 16 – whether action founded on simple contract or upon a specialty  – whether appropriate question to be determined in interlocutory proceedings.

National Fisheries Authority v New Britain Resources Development Ltd [2009] PGNC 231 N4068
Application to amend statement of claim – application to dismiss plaintiff’s claim for relief in proceeding – Order 12 Rule 40(1) National Court Rules - res judicata - abuse of process. 

Takoa Pastoral Co Ltd v Dr Temu [2009] PGNC 131 N3739
Practice and procedure – Discovery – Purpose of – Enable parties to know of each other’s cases’ strengths and weaknesses and where possible settle or identify meritorious issues for trial – Application of further discovery on orders of the Court – Further discovery on discovery likely to delay proceedings - No need for further discovery upon discovery – Parties to consider effect of documents disclosed and serious consider settling out of Court or make appropriate applications – Order 9 rr 1, 2, 5, 7, 9 & 25 National Court Rules

Telikom PNG Ltd v ICCC [2008] PGSC 5 SC906
Appeal – whether multiplicity of proceedings amounts to abuse of process – discretion as to consequences of abuse  – mode of commencement – circumstances in which Order 16 National Court Rules must be used – res judicata – whether applicable if a previous decision on issues before a court has been made by an administrative tribunal – whether tribunal had determined merits of the issues before the court.

Mondiai v Wawoi Guavi Timber Co Ltd (2007) SC886
Supreme Court Rules - Order 10 appeal- objection to competency – whether any provision for Order 11 r11 – adding appellant after 40 days – whether rule constrained by Supreme Court Act s17 – whether leave required for person not a party to appeal - locus standi – meaning of “sufficient interest” National Court Rules 0 16 r 3(5).

Newsat Ltd v Telikom PNG Ltd [2007] PGNC 161 N3452
Practice and procedure – National Court – application to strike out all of parts of an amended statement of claim – National Court Rules, Order 12, Rule 40.

Telikom PNG Ltd v Newsat Ltd [2007] PGNC 159 N3450
Practice and procedure – National Court – leave sought to file amended defence – National Court Rules, Order 9, Rules 51 and 52.

Newsat Ltd v Telikom PNG Ltd [2007] PGNC 158  N3449
Practice and procedure – notice of motion filed by a party but motion not moved on the day set down for hearing – whether motion should be adjourned or dismissed- wide discretion to dismiss ill-timed motions and this was an appropriate case in which to exercise that discretion.

Newsat Ltd v Telikom PNG Ltd [2007] PGNC 156 N3448
Application for stay of proceedings – actions on contracts – arbitration clauses – whether a stay of proceedings should be granted in view of an arbitration clause in a contract – application to dismiss part of claim – whether a reasonable cause of action disclosed – questions of constitutional interpretation and application raised in originating process – whether National Court has jurisdiction to hear or determine constitutional questions – Constitution, Section 18.

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Newsat Ltd v Telikom PNG Ltd [2007] PGNC 157 N3447
Contempt – failure to comply with court orders – whether person ordered to do things must be given notice of consequences of failure to comply – whether evidence of non-compliance – standard of proof.

Telikom PNG Ltd v ICCC [2007] PGNC 43 N3144
Practice & procedure – mode of commencement of proceedings – relief sought – seeking declaration that a decision by a public authority as invalid or null and void -originating summons seeking judicial review only proper mode of commencement and maintenance of proceedings under O 16 r 1 of the National Court Rules, which is an exclusive process – issuance of writ of summons an abuse of process of the court – proceedings dismissed for abuse of process of the Court – Order 12 r 40 and Order 8 r 27 National Court Rules.

Telikom PNG Ltd v ICCC [2007] PGNC 41 N3143
Interlocutory injunction – principles governing grant or rejection of – no evidence of irreparable damage – balance of convenience not favouring grant of interim injunction – undertaking as to damages by or for and on behalf of a company – not signed under seal of the company – no proper undertaking as to damages – time of application for injunction a relevant consideration – failure to act promptly may amount to estoppel by conduct – application dismissed.

Pacific Equities and Investment Limited v Melanesian Trustee Services Limited (2007) N3122
Application for interlocutory injunction restraining any action in respect of, or giving any effect to, a resolution of unit-holders of Pacific Balance Fund that applicant be removed as manager - whether serious question or questions to be tried.

Workcover Authority of NSW v Placer (PNG) Exploration Ltd (2006) N3003
Application to register foreign judgment under Reciprocal Enforcement of Judgments Act Ch 50 – award of the Compensation Court of NSW - certificate of award lodged in the Supreme Court of NSW – registration refused - Compensation Court not a declared court – denial of natural justice.

Curtain Bros (PNG) Ltd v University of Papua New Guinea [2005] SC788
Appeal from discretionary judgment – Discretion wrongly exercised - practice and procedure - summary judgment quashed.

Telikom PNG Ltd v Thomas Tulin [2004] SC748
Supreme Court appeal - practice and procedure - distinction between summary judgment and default judgment - misconception of procedure - error in exercise of discretion - summary judgment quashed.

Matthew Piake Kaen v Telikom (PNG) Limited [2004] SC746
Appeal - contract of employment – breach of implied term of contract – failure to obey directions of employer – entitlements under the contract.

Sabatica Pty Ltd v Battle Mountain Canada Ltd [2003] SC709
Appeal – company Law – rights of minority shareholders – cause of action at common law – cause of action under Section 152 of the Companies Act 1997.

Lindsay Lailai v Ace Guard Dog Security Services Ltd [2003] SC708
Appeal – practice and procedure – applications for default judgment and summary judgment – difference in nature and substance – order to file further and better particulars – no time period specified.

National Capital District Commission v Yama Security Services Pty Limited [2003] SC707
Appeal – judgment on liability for damages to be assessed – compromise reached – Deed of Release – Inappropriateness of summary procedure – necessity to institute fresh proceedings – Public Finances (Management) Act 1995.

Fly River Provincial Government v Pioneer Health Services Ltd [2003] SC705
Appeal – contract with a provincial government – tender and ministerial approval under the Public Finances (Management) Act 1995 not obtained – contract illegal and void – restitution only remedy.

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Mainland Holdings Ltd v Paul Robert Stobbs [2003] N2522
Application to dissolve interlocutory injunction – change in circumstances – conduct of plaintiff – contract of employment.

The Honourable Andrew Baing v PNG National Stevedores Pty Limited
[2000] SC627

Appeal – Application for Leave to Appeal – Proper principles – Practice and procedure – Application to strike out defence – Irregular judgment – Setting aside irregular judgment.

Panga Coffee Factory Pty Ltd v Coffee Industry Corporation Limited
[1999] SC619

Contract – statutory illegality – deed of arrangement to settle claim by exemption from levy – powers of a statutory corporation – no power to exempt exporter from levy – clause not severable.

Curtain Bros (Qld) Pty Ltd v Independent State of Papua New Guinea
[1993] PNGLR 285

Appeal - summary judgment – elements to be satisfied in such an application – evidence of defence – facts/law may be raised. Contract – when terms of contract are in writing – no evidence allowed to add to, subtract from, vary, or qualifyt.

Bruce Tsang v Credit Corporation (PNG) Limited [1993] PNGLR 112
Application for leave to appeal filed outside the 40 days limit – competency. Summary judgment - variation of principal contract – whether guarantee also varied or whether guarantor discharged from liability – whether summary judgment be set aside.

Emas Estate Development Pty Ltd v John Mea [1993] PNGLR 215
Real property – indefeasibility of registered title – whether principle applicable to registration under the Land Regulation Act – effect of irregularities on registered title.

Gladys Kumar v Peter Wama [1993] PNGLR 38
Constitutional law –suspension of provincial government – role of Administrator. Company Law – incorporation – separate legal person – corporate personality. Employment contract – wrongful termination – damages.

Theiss Watkins (PNG) Ltd v Papua New Guinea Electricity Commission
[1991] PNGLR 316

Building and engineering contract – construction and interpretation – arbitration clause – pre-conditions to arbitration – to be exhausted before arbitration clause invoked.

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National Airline Commission trading as Air Niugini v Lysenko [1990] PNGLR 226
Appeal - estoppel – res judicata – employment contract – breaches of – claim for failure to pay redundancy allowances – whether claim determined.
Contract of employment – obligation to re-employ – no offer within time stipulated – damages.

Rabtrad Niugini Pty Ltd v Abco Pty Ltd [1990] PNGLR 155
Contract – implied terms – contract to store goods – standard terms of customs contracts not imported into storage contract by previous dealings. Bailment for reward – warehousing – loss or damage – negligence – onus of proof.

Taurama Pharmacy Pty Ltd v Sherwen [1990] PNGLR 127
Contract of employment – restraint of trade – employed pharmacist – restraint on working within 40km area – whether reasonable in time and space and in public interest – quaere applicability in light of protection of employment rights under Constitution.

Aircair Pty Ltd v Co-ordinated Air Services Pty Ltd [1988-1989] PNGLR 549
Judgments and orders – setting aside for fraud – relevant principles – onus of proof – matters for proof – where application to call fresh evidence – allegations of false or mistaken evidence.

Lysenko v National Airlines Commission trading as Air Niugini
[1988-1989] PNGLR 69
Estoppel – res judicata – employment contract – claim for failure to pay redundancy allowances – disputed terms within one clause – separate causes of action – no estoppel.

Fletcher Morobe Construction Pty Ltd v Minister For Lands
[1988-1989] PNGLR 25
Appeal – state lease – compensation for improvements – lease granted under repealed legislation – expiration under new legislation – preservation of accrued rights – right to compensation potential only – compensation under new legislation.

Fletcher Morobe Construction Pty Ltd v Minister For Lands [1988] PNGLR 53
Real property – state lease – compensation for improvements – refusal to renew lease – compensation claimable pursuant to repealed Act under which lease granted – Land Ordinance 1911 – Land Act.

Straits Contracting (PNG) Pty Ltd v Branfill Investments Ltd [1988] PNGLR
Evidence – admissibility – fresh evidence – re-opening case – discretion of court – relevant considerations. Appeal – leave to appeal – from discretionary interlocutory ruling – from leave to adduce fresh evidence.

Pung Nimp v Robi Rumants [1987] PNGLR 96
Breach of trust – sale of shares held in trust – trustees directors of proprietary company – company holding traditional land – shares held in trust for clans – duty to consult with beneficiaries – proper “consultation” – consent of beneficiaries – breach established – Constitution, s 255.

Woodward v Woodward [1987] PNGLR 92
Specific performance – defences – uncertainty – vagueness of terms – deed of indemnity guaranteeing mortgage to be entered into – terms acted upon – intention that deed to have legal effect – specific performance available.

National Airline Commission trading as Air Niugini v Valerian Lysenko [1986] PNGLR 323
Contract of employment – construction and effect – termination of services – no reason given or required – redundancy clause – redundancy pay dependent on objective of facts at date of dismissal.

Independent State of Papua New Guinea v Keboki Business Group Inc
[1985] PNGLR 369

Contract with State – supply and tender procedures – authority to contract includes power to authorise signatures – Government Contracts Act – Minister’s (Delegation) Act (Ch No 35) – Public Finances (Control and Audit) Act.

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Angelo Cresseri v Halla Resources Corporation [1985] PNGLR 294
Contract – guarantee – Statute of Frauds – not specifically pleaded – raised at trial – where defendant taken by surprise.

Watkins (PNG) Limited v Richard Herbert Boyne Wood
[1985] Unreported, Barnett J
Construction contract – agency – proper party to agreement – company – director/shareholder agent – personal liability of individual – dual liability of company and individual.

Robinson v National Airlines Commission [1983] PNGLR 476
Injunctions – interlocutory injunctions – when available – preservation of status quo – justice and convenience – discretion to refuse – action for wrongful dismissal – damages adequate remedy.

Placer Holdings Pty Ltd v Independent State of Papua New Guinea
[1982] PNGLR 16

Appeal – extension of time for lodging – Extension applied for outside time limited – Court has discretionary power to grant – statutes – interpretation – purposive or literal approach – Land Act 1962.

Seafood Marketing Pty Limited v Robert Laurie (NG) Pty Limited
(1981) Unreported, Miles J

Bailment – frozen seafood – failure to maintain constant temperature – onus of proof – damages.

New Guinea Cocoa (Export) Co Pty Ltd v Basis Vedbaek [1980] PNGLR 205
Shipping and navigation – admiralty jurisdiction – jurisdiction of National Court – claim for necessaries supplied to foreign ship – law applicable – Colonial Courts of Admiralty Act 1890 no longer in force in Papua New Guinea – no action in rem for necessaries – common law of contract applicable to supply of goods and services.

Re the Judgments Enforcement (Reciprocal Arrangements) Act 1976, ex parte Van Der Kreek and Van Der Kreek [1979] PNGLR 185
Appeal - private international law – enforcement of foreign judgments – registration of “judgment” – order of Supreme Court of Queensland – jurisdiction exercised under Family Law 1975 (Cth) – order for cash sum by way of property settlement – whether judgment given in action in rem or in personam.

Re Judgments Enforcement (Reciprocal Arrangements) Act 1976 ex parte Frantz Van Der Kreek and Patricia Van Der Kreek [1978] PNGLR 398
Private international law – enforcement of foreign judgments – registration of “judgment” – order of Family Court of Australia for cash sum by way of property settlement – whether “judgment or order” made in “civil proceedings”.

Finch v Seafreight Pty Limited [1976] PNGLR 440
Carriage of goods by sea – action for loss in transit – onus of proof – measure of damages - limitation of liability – protective provisions of Sea-Carriage of Goods Act 1951.

Barker v Government of Papua New Guinea [1976] PNGLR 340
Application to set aside judgment by default – practice rules to be complied with – explanation for default – promptness of application – no reference to defence on merits – application refused.

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