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Piunde Ltd (In Liquidation), In re [2015] PGNC 303; N6657 (28 October 2015)

N6657
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP NO. 34 OF 2014

IN THE MATTER OF THE COMPANIES ACT 1997

AND:

IN THE MATTER OF PIUNDE LIMITED (IN LIQUIDATION)

Waigani: Kariko, J
2015: 14^th & 28^th October

PRACTICE & PROCEDURE – CIVIL JURISDICTION – Application to set aside or vary orders – Whether judge who appointed liquidator should have disqualified – Jurisdiction -– Application to terminate liquidation - Relevant considerations – Whether issue previously determined – Issue estoppel – Abuse of process

Cases cited:
Hami Yawari v Anderson Agiru (2008) N3983
Wep Kilip and In the Matter of Kamsi Trading Limited (2005) SC784

Counsel:

Mr C Gagma, for the Applicants
Mr I Shepherd, for the Liquidator

RULING

28^th October, 2015

1. KARIKO J: The directors of Piunde Limited (In Liquidation) apply for these main orders:
   
   • (1) Pursuant to O8 r4 of the National Court Rules to set aside or vary the order of Hartshorn, J of 20^th March 2015 appointing James Kruse as the liquidator; and
     
   • (2) Pursuant to section 300(1) of the Companies Act to terminate the liquidation of the company.
     
2. They also apply for certain orders consequential to the grant of the main orders they seek.
   

Application to set aside order of Hartshorn, J

3. The first application is based on the argument that, his Honour Hartshorn, J should have disqualified himself for apprehension of bias and for having a conflict of interest. I am of the view that a Judge of the National Court does not have jurisdiction to review the decision of another Judge on the basis that he ought to have disqualified himself. That is a matter properly for appeal to the Supreme Court.
   

Application to terminate liquidation

4. In my ruling of 21^st August 2015, on an application to set aside an ex parte order, I considered whether there was an arguable case for the liquidation to be terminated, that is, whether it would be just and equitable to do so. I addressed the relevant matters to take into account as noted by Lay, J in Wep Kilip and In the Matter of Kamsi Trading Limited (2005) SC784. In particular I addressed the main arguments by the applicants that:
   
   • (1) The liquidator has not discharged his duties properly and is in conflict of interest; and
     
   • (2) The company is in fact solvent.
     
5. Mr Gagma submitted that the merits of the application were not fully presented and considered on the previous occasion. I reject that submission. The very same matters now argued (including the considerations in Wep Kilip’s case) were raised and deliberated on in deciding whether the applicants had an arguable case or put in another way, whether the applicants had good prospects of succeeding on the application. The rule of issue estoppel does not permit re-argument of questions of fact or law already determined by the Court; Hami Yawari v Anderson Agiru (2008) N3983. I consider the bar of issue estoppel applies to render this application an abuse of process.
   

Conclusion

6. As correctly submitted by Mr Shepherd, if the applicants were aggrieved by the decision of Hartshorn J given 20^th March 2015 or my ruling on 21^st August 2015 they ought to have taken those up on appeal to the Supreme Court.
   
7. I dismiss the applicants’ further amended notice of motion filed 25^th September 2015 and order that they pay the liquidator’s costs of this motion.

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Gagma Legal Services : Lawyer for the Applicants
Ashurst Lawyers : Lawyer for the Liquidator