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Lang v Wagun [2008] PGNC 274; N3592 (28 February 2008)

N3592

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 575 OF 2006

SCHOLLY LANG
First Plaintiff

LOSU REALTY LTD
Second Plaintiff

V

PAUL WAGUN, PUBLIC CURATOR &
OFFICIAL TRUSTEE
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Madang: Cannings J
2007: 19 October;
2008: 20 February

RULING ON MOTION

PRACTICE AND PROCEDURE – motion for summary judgment – National Court Rules, Order 12, Rule 38 – whether there is evidence of the facts on which the claim is based – whether the plaintiff has proven that the defendants have no arguable defence.

DECEASED ESTATES – application under Wills, Probate and Administration Act, Section 65(1) for removal of Public Curator as administrator of deceased estate.

The plaintiffs are aggrieved by the Public Curator's administration of a deceased estate. They seek removal of the Public Curator as administrator of the estate and the appointment of the first plaintiff, the widow of the deceased. The plaintiffs bring their application under two laws: Order 12, Rule 38 (summary judgment) of the National Court Rules and Section 65(1) of the Wills, Probate and Administration Act (Chapter 291).

Held:

(1) As to the motion for summary judgment, there are two preconditions for entry of summary judgment: (a) there is evidence of the facts on which the claim is based; and (b) there is evidence that the defendants have no defence to the claim, ie that they have no arguable defence.

(2) Here, (a) was satisfied but (b) was not, as it is arguable, amongst other things, that the difficulties in resolving the estate are attributable, in part, to the plaintiffs' conduct.

(3) The motion for summary judgment was accordingly refused.

(4) As to the application under Section 65(1) of the Wills, Probate and Administration Act (Chapter 291), this provision is confined to situations where the administrator of an estate is physically or mentally infirm and therefore, in that restricted sense, unfit to or incapable of administering the estate.

(5) The Public Curator has not refused to act in the office of administrator of the estate. Nor has it been proven that he is physically or mentally unfit to act or that he is incapable of acting in that office.

(6) The application that he be removed as administrator of the estate was therefore refused.

Cases cited

The following cases are cited in the judgment:

Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112
Kumugai Gumi Ltd v NPF Board of Trustees (2006) SC837
T A Field v Chief Collector of Taxes [1975] PNGLR 144

NOTICE OF MOTION

This was a motion for summary judgment.

Counsel

T M Ilaisa, for the plaintiffs
B Bakau, for the defendants
20 February, 2008

1. CANNINGS J: Mrs Scholly Lang is the widow of the late Galen Lang, who died intestate in 1992. She is asking the court to transfer Mr Lang's estate from the Public Curator to herself. She is the first plaintiff in this case. The second plaintiff is Losu Realty Ltd, a family company which she and Mr Lang formed some years ago.

2. The estate is potentially quite valuable as Mr Lang had prior to his death acquired several properties, including a commercial property in the central business district of Madang town, which has amongst its tenants the ANZ Bank.

3. Mrs Lang and her son Elvis allege the Public Curator has failed to properly administer the estate. They allege that most of these properties are now in a state of disrepair and as a consequence, their value has significantly declined. They say that there have been no audited reports on the affairs of the estate. They claim that the Public Curator has failed miserably to discharge his duties under the Wills, Probate and Administration Act.

4. The plaintiffs commenced court proceedings against the Public Curator and the State, by originating summons, in 2006. As well as orders for transfer of administration of the estate, the plaintiffs want the court to order the Public Curator to prepare and file a statement of accounts and to produce in court all title deeds for properties forming part of the estate.

5. The matter has not yet been set down for trial. On 16 October 2007 the plaintiffs applied for removal of the Public Curator as administrator of the estate and the appointment of Mrs Lang. The plaintiffs bring their application under two laws: Order 12, Rule 38 (summary judgment) of the National Court Rules and Section 65(1) of the Wills, Probate and Administration Act (Chapter 291).

MOTION FOR SUMMARY JUDGMENT

6. Rule 38(1) of the National Court Rules, which states:

Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff—

(a) there is evidence of the facts on which the claim or part is based; and

(b) there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed,

the Court may, by order, direct the entry of such judgement for the plaintiff on that claim or part, as the nature of the case requires.

7. There are two preconditions for entry of summary judgment:

(a) there is evidence of the facts on which the claim is based; and

(b) there is evidence that the defendants have no defence to the claim, ie that they have no arguable defence.

8. Summary judgment should only be entered in clear cases and the court must ensure it does not unfairly deprive defendants of their day in court. The Supreme Court has consistently driven home those principles, in cases such as T A Field v Chief Collector of Taxes [1975] PNGLR 144, Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112 and Kumugai Gumi Ltd v NPF Board of Trustees (2006) SC837.

9. In the present case the plaintiffs have through a series of extensive affidavits adduced evidence of the facts on which their claim is based. So precondition (a) is satisfied. However, it is not at all clear that the defendants, in particular the Public Curator, have no arguable defences. On the face of the affidavits that have been filed, the following propositions and defences are arguable:

• The difficulties in resolving the estate are attributable, in part, to the plaintiffs' conduct, resulting in a delay in the granting of letters of administration.
  
• The deceased had a second, de facto, wife, who may have some claim on the estate.
  
• There are creditors of the estate who have priority over next of kin, whose interests may be prejudiced by transferring administration of the estate to a next of kin, the deceased's widow.
  
• In particular the ANZ Bank is a secured creditor in relation to the deceased estate's principal property, the deceased having entered into a personal guarantee with the Bank.
  

10. This is not an appropriate case for entry of summary judgment. There are many arguable issues so the motion for summary judgment will be refused.

APPLICATION UNDER WILLS, PROBATE AND ADMINISTRATION ACT

11. The plaintiffs rely on Section 65(1), which states:

Notwithstanding anything in any other law, where an executor or administrator to whom probate or administration has been granted, or an administrator who has been appointed under this section—

(a) remains out of the country for more than two years; or

(b) desires to be discharged from his office of executor or administrator; or

(c) after the grant or appointment

(i) refuses to act, or is unfit to act, in that office; or

(ii) is incapable of acting in that office,

a Judge may, on application in a summary way by summons in Chambers, order—

(d) his discharge or removal; and

(e) if the Judge thinks fit, the appointment of some proper person as administrator in his place, on such terms and conditions as the Judge thinks proper and may make—

(f) all necessary orders—

(i) for vesting the estate in the new administrator; and

(ii) as to accounts; and

(g) such order as to costs as the Judge thinks proper.

12. The underlined portions of the provision are those relied on by the plaintiffs. Mr Ilaisa's submission is that the Public Curator has shown that he is unfit to continue to administer the estate and is incapable of doing so. The mismanagement of Mr Lang's estate has been manifested by the failure to provide a statement of account and is typical of the general malaise in the Office of Public Curator which, he submits, has been publicly documented through an inquiry by the Public Accounts Committee.

13. There may be some merit in that submission. However, I consider that Section 65 is directed at situations where the administrator of an estate is physically or mentally infirm and therefore, in that restricted sense, unfit to or incapable of administering the estate. The provision is not the avenue through which next of kin or other persons aggrieved by the way in which an estate is being administered come to the court via a summary procedure to get the administrator removed; least of all the Public Curator, who has statutory functions under the Public Curator Act to perform.

14. The Section 65(1) application is misconceived and is therefore refused.

CONCLUSION

15. Both the motion for summary judgment and the application under Section 65(1) of the Wills, Probate and Administration Act are refused. The grievances of the plaintiffs should be aired and determined at a trial.

ORDERS

1. All relief sought by the plaintiffs by the notice of motion filed on 16 October 2007 is refused.
   
2. The plaintiffs shall pay the defendants' costs of the motion on a party-party basis, to be taxed if not agreed.
   

Judgment accordingly.
____________________________

Thomas More Ilaisa Lawyers: Lawyers for the plaintiffs
Solicitor-General: Lawyer for the defendants