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In re Estate of Darius Tali [2012] PGNC 48; N4729 (16 July 2012)

N4729

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WPA NO 01 OF 2011

BETWEEN

IN THE ESTATE OF DARIUS TALI, LATE OF SIASSI VILLAGE, MOROBE PROVINCE, PAPUA NEW GUINEA, HIGH SCHOOL TEACHER, DECEASED, INTERSTATE

Waigani: Makail, J
2012: 09th & 16th July

PRACTICE & PROCEDURE - Application to set aside ex-parte order - Ex-parte order revoking grant of letters of administration - Competency of application - Non-contentious proceedings - Contentious proceedings - Distinction of - Proceedings for revocation of grant - Must be commenced separately - Application dismissed - National Court Rules - O 12, r 8(2)(a)&(b) & O 19, rr 5-35, 37 & 42.

Cases cited:

In the estate of Darius Tali, late of Siassi Village, Morobe Province (2011) N4281

Counsel:

Mr J Poiya, for Applicant

RULING ON APPLICATION TO SET ASIDE ORDER REVOKING GRANT OF ADMINISTRATION OF DECEASED'S ESTATE

16th July, 2012

1. MAKAIL, J: Pursuant to a notice of motion filed on 18th April 2012, the applicant Mr Pais Polu applies to set aside an ex-parte order of 20th April 2011. At the hearing, he abandoned the other orders sought in the notice of motion and pursued the application to set aside the ex-parte order. The order states:

1. Letters of Administration granted to Gordon Tali on 25th January 2011 on the estate of the late Darius Tali is now revoked.

2. The applicant Norman Tali is at liberty to pursue his challenge to the sale of property located at Section 41 Allotment 32, Eriku, Lae, Morobe Province, contained in State Lease Volume 4 Folio 129.

2. This order arises from a dispute in relation to the estate of late Darius Tali. Late Darius is from Siassi. He died interstate. A Gordon Tali was appointed administrator of the estate. It was later discovered that Gordon Tali was already deceased when letters of administration were granted to him. Norman Tali who claimed to be the son of Darius Tali applied to revoke the grant because somebody had used his deceased's brother's name to apply for letters of administration. Also, somebody had used this grant to dissipate the deceased's estate, more particularly the sale of a house owned by his late father, Darius Tali. The Court revoked the grant on the grounds of fraud: see In the estate of Darius Tali, late of Siassi Village, Morobe Province (2011) N4281.

3. According to Pais Polu's affidavit in support filed on 18th April 2012, his supplementary affidavit filed on 30th May 2012 and his further affidavit filed on 06th June 2012, Gordon Tali died on 19th January 2011. Prior to his death, Gordon wrote a will on a statutory declaration form dated 16th April 2010 granting the house to him. Gordon did that because when Gordon was sick and in hospital for a long time, no family members cared for him, let alone, visited him. It was only him. He was there for him until his death. After Gordon died, he took over and authorised the transfer of title of the house to himself. For these reasons, he denies committing any fraud.

4. He was not aware that the Court had revoked the grant on 20th April 2011. He became aware of it around June or July of 2011. In addition, he says that the said order did not authorise Norman to sell the house. Norman was required to apply for a new grant before dealing with the estate of Darius Tali. Norman was also given liberty to challenge the sale of the house to him. However, on 23rd February 2012, Norman sold the house to Capital Lands Limited, a subsidiary of Papindo Group of Companies. Capital Lands Limited is now the registered proprietor.

5. When he travelled to Port Moresby from Lae on 08th November 2011, he was arrested by policemen at Jacksons airport and brought to the police station. He was charged with forgery and uttering of documents. He was also assaulted and suffered serious injuries. He is presently nursing the injuries sustained from the assault. He was refused bail and detained at the Boroko police station until he was granted bail by District Court on 14th November 2011. He was arrested the second time, charged with the same offences and refused bail. On 15th November 2011, he was granted bail. Following the sale of the house to Capital Lands Limited, on 28th February 2012, policemen forcefully evicted him and his family from the house. Again, policemen seriously assaulted him.

6. The application is made pursuant to s 155(4) of the Constitution and O 12, r 8(2)(a)&(b) of the National Court Rules. Order 12, r 8(2)(a)&(b) provides:

"(2)The Court may, on terms, set aside or vary an order -

(a) where the judgment has been entered pursuant to Order 12 Division 3 (default judgment); or
(b) where the judgment has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or any motion for the direction."

7. In my view O 12, r 8(2)(a)&(b) (above) does not apply in this case because this proceedings was commenced as a "non-contentious proceedings" for grant of administration under O 19, r 7 of Division 3 of the National Court Rules. Proceedings commenced under O 19 of Division 3 are done where there is no objection to the person seeking to be appointed administrator or executor of the estate of the deceased. That is why there is no defendant in the proceedings. There are certain requirements that must be met before a grant is made. One of them is that the notice of the intended application for grant must be published in the daily newspaper: O19, r 10. In respect of the hearing, the proceedings may be heard in the absence of the public and without any appearance before the Court: O 19, r 9.

8. Generally, it is the Registrar who grants administration, probate or resealing: O 19, r 5(1)(a). In practice, he grants it in his office because as noted, the proceedings may be heard in the absence of the public and without any appearance before the Court. In other words, the Registrar peruses the documents in his office and if he is satisfied that all the requirements under O 19, rr 7-27 are met, he grants the application.

9. Conversely, proceedings commenced for grant of administration, probate or resealing under Division 6 of O 19 rr 34-35 are known as "contentious proceedings". These proceedings, as the name suggests, are commenced in cases where there is objection to the person applying for grant of administration, probate or resealing. That is why there is a defendant in the proceedings and the proceedings must be commenced by writ of summons. It is the judge of the National Court who exercises jurisdiction in this type of cases. It is the judge who decides who should be granted administration, probate or resealing. Invariably, in some cases, it may not be clear if objections will be raised against the person seeking to be appointed administrator, executor or for an order for resealing prior to the commencement of the proceedings. In such cases, the proceedings must be commenced by originating summons.

10. In cases where an aggrieved person or persons seek to revoke a grant, he or she must commence a "contentious proceedings to revoke a grant" of administration, probate or resealing under Division 7 of O 19 r 42. In other words, the proceedings must be commenced separately from contentious or non-contentious proceedings for grant of administration, probate or resealing.

11. In the present case, on 25th January 2011, a grant was made in favour of Gordon Tali as the administrator of the estate of late Darius Tali. When Norman disputed the grant on the grounds of fraud, he should have commenced a contentious proceedings to revoke the grant by writ of summons and named Pais as a defendant under Division 7 of O 19, r 42. If he did that, the Court would have, on the application of Norman, or on its own motion, ordered the grant to be deposited in the Registry: O 19, r 37. He did not do that and this led to the Court revoking the grant in the same proceedings in the absence of Pais. What this has done is that, it has caused confusion between the parties and the Court as to what the real dispute is. Is the dispute over the appointment of the administrator of the estate or is it in relation to how the estate of the deceased was administered?

12. The Court revoked the grant in favour of Gordon Tali and gave Norman liberty to pursue his challenge to the sale of the house. There is no evidence to suggest that Norman was subsequently granted administration of the estate and on that authority sold the house to Capital Lands Limited. In my view, if Pais' complaint is over the sale and transfer of title of the house by Norman to Capital Lands Limited, he cannot ask for the return of the house in this proceedings. As I said, this proceedings was commenced to appoint an administrator of the estate of late Darius Tali. It was concluded when the grant was made in favour of Gordon on 25th January 2011. The only recourse for Pais is to commence fresh proceedings to invalidate the grant of title to Capital Lands Limited. All those matters raised by him in this application can be raised in the new proceedings.

13. Assuming that there is a grant made in favour of Norman as administrator of the estate following the revocation of the grant to Gordon Tali, and Pais wishes to have it revoked, he should commence a contentious proceedings by way of a writ of summons under Division 7 of O 19, r 42. Those matters he has raised can be raised in that proceedings. It follows I am not satisfied the application is properly before the Court. It is incompetent and I dismiss it. Costs shall follow the event.

Ruling accordingly.

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