|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 652 OF 2010
BETWEEN:
PETER KONDOA
Plaintiff
AND:
THE PUBLIC CURATOR OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Defendant
AND:
THE ESTATE OF PAUL KAMOD DECESED OF RIWO VILLAGE MADANG
Second Defendant
AND:
DAVID KAMOND
Third Defendant
AND:
HARMHILL PLANT HIRE LIMITED
Fourth Defendant
Waigani: Bre, AJ
2023: 11th October, 22nd December
CIVIL PRACTICE – Application for summary dismissal and want of prosecution - National Court Rules Order 12 rule 40 and Order 4 rule 36(1) – considerations – nature of proceedings – conduct of parties- interest of justice
Cases Cited
Aweto v Tobias (2020) N8480
Kerry Lerro v Philip Stagg, Valentine Kambori & The State (2006) N3950
Kuk Kuli v The State (2004) N2592
Kundalin v Ipo [2023] PGSC 30; SC2377
Lord and company v Inape [2014] SC1624
Papua Club Inc v Nusaum Holdings Ltd [2002] PGNC 50; N2273
Mt Kare Holdings Pty Ltd and Dibusa Mining Pty Ltd v Akipe; Kambe; Pakema; Lowa, Minister for Minerals and Energy; Israel, Mining
Registrar; and The State [1992] PNGLR 60
Legislation
National Court Rules, O12r40
Wills, Probate and Administration Act 1966, ss45 and 45.
Counsel
Mr F Unage, for the Third and Fourth Defendants/Applicant
No Appearance by the First and Second Defendants
No Appearance by the Plaintiff
RULING
22nd December 2023
1.BRE AJ: INTRODUCTION: The Third and Fourth Defendants apply to summarily dismiss the proceedings in its entirety due to not disclosing a reasonable cause of action or being frivolous or vexatious. I heard the application after being satisfied that the Plaintiff and First Defendant were effectively served.
BACKGROUND
2. The proceedings concern transactions about a property located in Madang, described as Portion 589 Milinch Kranket, Madang Province, of which Paul Kamod, deceased, is the registered title holder.
3. Paul Kamod died on 19th March 2009. The Third Defendant is his son and the Fourth Defendant is the alleged purchaser of the property. The First Defendant, is the Public Curator, who was joined some six years later on 13 January 2016.
4. The Plaintiff claims in his Statement of Claim that he had discussions with the late Paul Kamod as deposit to confirm his death, who purportedly agreed to sell the property to him. Following those discussions he raised a cheque of K60,000.00 to Paul Kamod as deposit to confirm his interest in the property. Later unbeknown to him, the property was sold to the Fourth Defendant by the son the Third Defendant. He commenced proceedings for breach of a promissory right to contract and seeks specific performance to complete the sale to him.
EVIDENCE
5. The applicant relies on the following Affidavits:
1) Affidavit in support of Felix Unage sworn on 13 September 2023 filed on 13 September 2023 [Court Doc No.123].
2) Affidavit in support of David Kamond sworn on 26 June 2023 and filed on 13 September 2023 [Court Doc No.126].
3) Affidavit in Support of Samson Kuli as Managing Director of the Fourth Defendant sworn on 14 June 2023 and filed on 13 September 2023 (Court Doc No.124].
4) Affidavit in Support of Scholastic Kamond sworn on 26 June 2023 and filed on 13 September 2023 [Court Doc No. 125].
5) Affidavit in Support of David Kamond sworn on 26 June 2023 and filed on 13 September 2023 (Court Doc No. 85].
6) Affidavit in Support of Anna Kamond sworn on 25 January 2023 and filed on 31 January 2022 [Court Doc No.84].
SUBMISSION
6. The Third and Fourth Defendants submit that no promises were made to the Plaintiff. The cheque of K60,000.00 was not honoured by the bank and is valueless.
7. The property was advertised, and three people expressed interest. The late Paul Kamod was receptive to any offer from any of the three interested bidders. There was no response to the offer made and the property was rightly sold to the Fourth Defendant.
8. The Plaintiff continues to live on the property and has not given vacant possession to the Fourth Defendant, materially affecting the Fourth Defendant's right to take vacant possession of the property.
9. The Plaintiff's continued residence on the property arises from a District Court Order to stay eviction which remains on foot.
10. Mr Unage submits that the basis of the Plaintiff’s claim rests on a weak foundation as it is based on intention, which cannot be proved with Paul Kamod deceased and the property sold to the Fourth Defendant. He submits the Plaintiff's claim is frivolous and untenable and cannot succeed at trial, hence this application.
ISSUES
11. Whether the Statement of Claim contains a reasonable cause of action or is frivolous or vexatious and should be dismissed for want of prosecution.
LAW
Order 12 rule 40 National Court Rules (‘NCR') and related caselaw.
Order 12 rule 40 NCR reads:
"40. Frivolity, etc.
(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—
(a) no reasonable cause of action is disclosed;
(b)the proceedings are frivolous or vexatious; or
(c) the proceedings are an abuse of the process of the Court the Court may order that the proceedings be stayed or
dismissed generally or in relation to any claim for relief in the proceedings."
The Applicant also relies on Order 4 rule 36(1) NCR which reads:
“36. Want of prosecution.
(1) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may stay or dismiss the proceedings."
ANALYSIS
12. The reliefs sought to dismiss the proceedings, require an exercise of discretion on proper principles. In the case of summary dismissal under Order 12 rule 40 NCR, his Honour Deputy Chief Justice Kandakasi, ably considered the long line of case authorities and set out the principles guiding the application of Order 12 rule 40 NCR in Lerro v Stagg (2006) N2936 as:
“1) A plaintiff or defendant should not be driven from the judgement seat in a summary way. The rules are designed to enhance parties rights and to ensure a prompt and fair disposal of matters.
2) Simultaneously, the Court also has a duty to protect and safeguard its processes from abuse.
3) The object of this rule is to stop cases which ought not to be launched.
4) In terms of a claim not disclosing a 'reasonable cause of action’; two considerations apply: one, the legal form of action and second all necessary facts proving the legal form of action must be disclosed in the pleadings.
5) The Court must exercise its discretion sparingly and only in very clear cases where the pleadings are ‘obviously and almost incontestably bad' or is 'plain and obvious’ or 'so bad or vague’ that even if the claim is proved will not entitle the Plaintiff to the remedy it seeks.
6) A lack of particulars can be cured by amendment to the pleadings”.
13. In the Supreme Court in Mt Hagen Urban Local Level Government v Sek No.15 (2009) SC1007 clarified the terms in Order 12 rule 40 NCR at [29] and [30] as:
“The phrase ‘disclosing a reasonable cause of action’ consists of two parts; cause of action and form of action. A cause of action is defined as a legal right or form of action known to law whereby a plaintiff in a statement of claim must plead all necessary facts and legal elements or ingredients to establish or prove his claim...
(iii) The purpose of O.12 r.40, is to give the Court power to terminate actions or claims which are plainly frivolous or vexatious or untenable.
(iv) A frivolous claim is one that is characterized as a claim that is plainly and obviously untenable, that cannot possibly succeed and bound to fail if it proceeds to trial.
(v) A vexatious claim is one that is said to be a sham and cannot succeed where it seeks to merely harass the opposing party and put that party to unnecessary trouble and expense in defending or proving the claim.
30. In an application under O.12 r.40 of the NCR, the Court may dismiss a proceeding or action where it is satisfied that the pleading in the statement of claim is seriously wanting where a necessary fact or legal element has not been pleaded."
14. The guiding principles to consider the exercise of discretion for want of prosecution in Order 10 rule 5 NCR are settled. These are as outlined in the often cited cases of Viviso Seravo v Jack Bahafo (2001) N2078, Ahmadiyya Muslim Mission v Bank South Pacific Ltd (2005) N2845 and John Niale v Sepik Coffee Producers Ltd (2004) N2637 and can equally apply to considerations under Order 4 rule 36 NCR and are as follows:
(i) The plaintiff’s default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his or her claim;
(ii) There is no reasonable explanation given by the plaintiff for the delay;
(iii) The delay has caused injustice or prejudice to the defendant;
(iv) The conduct of the parties and their lawyers warrants; and
(v) It is in the interests of justice.”
15. Given the various principles cited above, I will consider the following common considerations arising and these are:
Nature of the proceedings
16. I remind myself that actions for summary dismissal under Order 12 rule 40 National Court Rules must be exercised in clear cases where the cause of action lacks substance and does not demonstrate a strong chance of succeeding.
In Mt Kare Holdings Pty Ltd and Dibusa Mining Pty Ltd v Akipe; Kambe; Pakema; Lowa, Minister for Minerals and Energy; Israel, Mining Registrar; and The State [1992] PGSC 10; [1992] PNGLR 60 (7 August 1991) the Supreme Court clarified the phrase 'cause of action' as follows:-
"The phrase "cause of action" has two components. First, there must be a right which is given by a law, such as, entitlement to reasonable damages for breach of human rights under s 58 of the Constitution. This is what is referred to as the "form of action". Secondly, the pleadings must disclose all the necessary facts which give rise to the form of action. "
17. An application seeking dismissal on grounds that the Statement of Claim does not disclose a reasonable cause of action must address the following two factors:
1) the legal form or legal basis in which the claim is based on and,
2) all necessary facts have been pleaded which give rise to the legal form of action.
18. The Plaintiff's claim seems to be based on contract where he is seeking specific performance on grounds of breach of promise or the contractual element of intentions to create legal relations.
19. It seems Paul Kamod's son acted prematurely by attempting to sell the property to the Applicant. The lawful authority of the Third Defendant is a proper triable issue for consideration in the substantive proceedings.
20. The Applicant's evidence is that he signed a contract of sale and paid K200,000.00 to the deceased family members for the property. The Plaintiff's evidence is that he paid K60,000.00 to the deceased and made repairs to the property, which is disputed by the Third Defendant, nevertheless that is his evidence.
21. The evidence establishes that the Plaintiff paid K60,000.00 two days prior the Paul Kamod’s death, while the Fourth Defendant paid K200,000.00 to Paul Kamod’s family after his death.
22. Both the Plaintiff and the Fourth Defendant claim a right to the property. Both parties transactions have not been completed by Paul Kamod before he died. Both the Plaintiff and the Fourth Defendant will face legal difficulties in registering their names to the land title of Portion 589 Milinch Kranket, unless the Public Curator intervenes to obtain Letters of Administration. It seems to me that both the Defendant and the Plaintiff, arguably are creditors to the estate of the late Paul Kamod that only the Public Curator can resolve.
23. The proper course of action is for the next of kin, the third Defendant, to register the intestate death of his father with the Public Curator and the dealings concerning the property and request the intervention of the public curator.
24. In the absence of that, both the Plaintiff and the Fourth Defendant have an interest in the land and should approach the office of the Public Trustee to apply for Letters of Administration to deal with the property accordingly.
25. I note that there is a Court Order made on 09 November 2015 and entered on 16 November 2015, directing parties to liaise with the Public Curator who is to take charge of the administration of the deceased estate. The Applicant has not made any submissions nor adduced any evidence as to the outcome of complying with this order.
26. I note that the Plaintiff raises allegations of fraud in his amended Statement of Claim filed 13 January 2016 alleging the unlawful nature of the authority to sell the property without the involvement of the Public Curator and the authority of the Third Defendant to sell the property to the Fourth Defendant.
27. Counsel did not mention the fraud allegations contained in the Amended Statement of Claim. The interests of justice demand that caution must be applied in summarily dismissing cases where there are allegations of fraud.
28. I also note with concern a signature against the deceased Paul Kamod's name in the purported contract of sale with the Applicant signed and witnessed on a contract of sale signed on 25 January 2010, some nine months after the death of the registered title holder, Paul Kamod. That is a serious misrepresentation of valid legal authority that is tantamount to fraud especially in the absence of any express written documentation in the form of a will, power of attorney from Paul Kamod before he died, or Letters of Administration vesting legal authority to deal with the property.
29. I was not provided sufficient reasons nor evidence to clarify what if any actions the Public Curator, as the First Defendant has taken nor have I sighted any Defence filed by the Public Curator.
30. In terms of addressing the aspects of Order 12 rule 40 NCR, I make the following findings:
Conduct of the Proceedings by the Parties
31. In the absence of submissions from the Plaintiff and First Defendant, I briefly perused the Court file to consider the conduct of parties in this proceeding. I note the writ of summons was filed on 07 June 2010, amended and filed some six years later on 13 January 2016 to include the Public Curator.
The Third Defendant and the Applicant filed one Defence and Cross Claim on 15 October 2021, some five years later with leave of Court. Consent Directions were endorsed by the Court on 18 May 2021 prior to the filing of the Defence and Cross-Claim, for the filing of Affidavits etc; and for the matter to return on 15 June 2021 to obtain a trial date.
There appears to be further notices of motion filed by the Plaintiff for the transfer of the proceeding to Waigani following an order of 15 November 2022. It appears, the Plaintiff's lawyer Leslie Kari, died sometime after, at which stage the Plaintiff engaged Gibson Bon lawyers who filed a notice of change of lawyers on 25 May 2023. Since then, the Third and Fourth Defendants have filed this application on 13 September 2023 to summarily dismiss the proceedings.
32. It appears no trial date has been obtained since June 2021, however it is apparent that the process was further delayed with the late filing of the Defence and Cross claim on 15 October 2021 and subsequent motions thereafter.
33. I find that both parties have been actively pursuing their respective positions. There is no want of prosecution by the Plaintiff. The Applicants submissions for want of prosecution fails.
Interest of Justice
34 The interest of justice require the Court to be cautious in exercising discretion to summarily dismiss proceedings in cases where fraud is alleged. In Lord and company v Inape [2014] SC 1624 the Supreme Court cautioned at [59]:
"... this Court has previously cautioned that care needs to be taken in giving default judgment where fraud or deceit are alleged ... In our view similar principles are applicable in cases involving summary disposal, even those outside the scope of Order 12 Division 4 of the National Court Rules."
35. In the exercise of discretion the interest of justice require the Court to have regard to the public interest of finality to litigation and equally to preserve the right of the plaintiff to litigate and not to shut out or have the plaintiff “driven from the judgment seat” in a summary way. Kerry Lerro v Philip Stagg, Valentine Kambori & The State (2006) N3950; Philip Takori v Simon Yagari (2007) SC905 and George Solomon v David Raim (2020) N8428.
36. The history of this proceedings indicates a contentious litigation spanning some thirteen years. The Plaintiff must proceed now to listing the matter for trial.
Public Curator's powers
37. Although, submissions were not made regarding the powers of the Public Curator the proper option for parties to reach closure, as I see it, is for all parties to properly engage with the Public Curator.
This case concerns the sale of deceased estate property that has not been validated by the Public Curator. Grant of letters of administration are necessary to confer standing. See Kundalin v Ipo [2023] PGSC 30; SC2377 (24 April 2023).
38. Section 44 of the Wills, Probate and Administration Act 1966 vests property belonging to a deceased to the Public Curator (or now known as the 'Public Trustee') and reads:
"44. Initial Vesting In Public Curator.
Until probate or administration is granted, the property of a deceased person vests in the Public Curator, in the same manner and to the same extent as formerly personal estate in England vested in the Ordinary. "
(Emphasis mine)
39. Section 45 provides for the lawful grant of authority to deal with the deceased's property. Section 45 reads:
"45. Vesting On Grant
(1) For the purposes of this section, the real property of a deceased person shall be deemed to include–
(a) all his estate passing under any gift contained in his will that operates as an appointment under a general power to appoint
by will; and
(b) every estate for the life of another that that person could, if of full age and capacity, have disposed of by his will.
(2) Subject to any limitations expressed in the grant, on the National Court granting representation of a deceased person all the property, or all the property then unadministered, of that person, whether held by him beneficially or in trust, vests as from his death in the personal representative to whom representation is granted for all the estate or interest of the deceased person in that property.
(3) If there is more than one representative, the property referred to in Subsection (2) vests in them as joint tenants. "
(Emphasis mine)
40. Sections 44 and 45 WPA are clear, legal authority through the Public Trustee is required for any dealings with deceased property. Even the Registrar of Title may be hesitant to issue any title in the absence of Letters of Administration or Probate of a Will if any exists. The Court Order of 09 November 2015 directing parties to liaise with the Public Curator and for the Public Curator to take charge of the Administration of the deceased estate remain outstanding. Compliance with a Court Order is a serious matter. Court Orders are not to be complied with at the convenience of parties see Aweto v Tobias (2020) N8480.
41. Counsel’s explanation from the bar table that the Public Curator is not interested in this proceeding goes against the express terms of the Court Order of 09 November 2015.
CONCLUSION
42. For the foregoing reasons, the Third and Fourth Defendants have not sufficiently proved that the Plaintiff has no reasonable cause of action, the proceedings are frivolous or vexatious and should be summarily dismissed.
43. Costs are discretionary and follow the event.
ORDER
44. The formal ruling of the Court are:
1) The Third and Fourth Defendant's Notice of Motion filed 13 September 2023 is refused in its entirety.
2) All Parties are directed to comply with Court Order of 09 November 2015 directing parties to liaise with the Public Curator and for the Public Curator to take charge of the Administration of the deceased estate.
3) Failing which, parties are to proceed to trial with the Plaintiff filing a notice to set down for trial or alternatively, for the Registry to place this matter for Directions in the February or March 2024 Listings for Directions Hearing.
4) Costs are in the course.
5) Time is abridged for the entry of these Orders to the time of Settlement by the Registrar which shall take place, forthwith.
Orders Accordingly.
Gibson Bon lawyers: Lawyers for Plaintiff
Unages Lawyers: Lawyers for the Third and Fourth Defendants
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2023/478.html