N11434

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 181 OF 2023

BETWEEN: 
POWER BOSS (PNG) LIMITED
First Applicant

AND:
MICHAEL PAI
Second Applicant

AND:
RAMU HARDWARE & BUILDING SUPPLIES LIMITED
First Respondent

AND:
PEARL RIVER CO. LIMITED (1-60601)
Second Respondent

LAE:  DINGAKE J
16 MAY, 15 JULY 2025

PRACTICE AND PROCEDURE -application to dismiss proceedings for not disclosing a reasonable cause of action, for being frivolous and vexatious and for abuse of court process- Order 12 Rule 40(1) of the National Court Rules – consideration of -    pleadings do not disclose a reasonable cause of action, and it is frivolous and vexatious within the meaning of Order 12 Rule 40(1) of the National Court Rules -Court to exercise its inherent jurisdiction to protect its processes – proceedings dismissed

Counsel
Mr. Warren Kume, for the applicants
Mr. Johnah Langah, for the second respondent

RULING

1.	DINGAKE J: This is a ruling on a notice of motion filed by the Second Respondent/Defendant seeking to dismiss the Plaintiff’s/Applicant’s proceedings pursuant to Order 10 Rule 9(A) (15)(d) and (e) of the Listings Rules on the grounds that the proceedings:

1)	Disclose no reasonable cause of action;
2)	Being frivolous and vexatious;
3)	Being an abuse of process;
4)	Being time barred under Section 16 of the Frauds and Limitations Act;
5)	Being statute barred under Section 2 and 4 of the Frauds and Limitations Act;
6)	Want of standing (Plaintiffs).

BACKGROUND

2.	The Second Applicant claims that property described as Section 86, Allotment 12, Lae Morobe Province (“the property”), contained in State Lease Volume 79, Folio 124, with an area of approximately 0.1179 hectares now registered in the name of the Second Respondent was fraudulently transferred from the First Respondent to the Second Respondent. He alleges that the property originally belonged to a deceased neighbour Ellena (Helen) Gilmore who gifted it to him before passing. 

3.	The deceased passed away on 25th of March 2013 at Angau Memorial General Hospital.

4.	The Second Applicant has moved to dismiss the proceedings, based mainly on the pleadings, given the paucity of the affidavit in support, filed by his lawyer in support of the application.

ISSUES FOR DETERMINATION

1)	Can the Court dismiss proceedings for disclosing no reasonable cause of action, being frivolous or vexatious, or an abuse of court process based on pleadings alone?

2)	Whether, in the circumstances of this case, the Plaintiff’s claim is so untenable as to warrant dismissal.

LEGAL PRINCIPLES

5.	Under Order 12 Rule 40(1) of the National Court Rules, the Court may dismiss or stay proceedings if:

•	No reasonable cause of action is disclosed;
•	The proceeding is frivolous or vexatious;
•	The proceeding is an abuse of the process of the Court.

6.	I hold the view that a court may dismiss a matter for disclosing no cause of action based solely on the pleadings, without the need for supporting affidavit evidence. Likewise, if the pleading is plainly vexatious or an abuse of process, the court may intervene ex proprio motu (on its own motion).

STATEMENT OF CLAIM

7.	The Applicant’s statement of claim alleges fraud in the transfer of title from the First to the Second Respondent and asserts an earlier entitlement via gift. The particulars of fraud are extensive and appear at page 4 and 5 of the Statement of Claim. They include: 

•	The deceased was not able to affluently write (using a biro or a marker) and execute the contract of sale with the first defendant as she was handicapped, crippled and was mentally affected.

•	The deceased purportedly executed the contract of sale by signing off with a marker. The witness, a Gelen Heater, also apparently signed off with the same marker. The signature of the deceased appears to have been forged as it bores the authorship; of the same person who witnessed the execution.

•	The deceased was impersonated by the purported witness, Gelen Heater and the responsible officer of the first defendant when executing the contract of sale.

•	The first defendant fraudulently facilitated the conveyance and settlement without the involvement of the deceased. Even if the deceased was aware, which is denied, nobody including the second plaintiff guided her to have her consent voluntarily give or obtained.

•	The second defendant purchased the property in breach of the administration powers of the Public Trustee over the property as a bona vacantia (ownerless) property.

8.	A claim that is vexatious is one that is plainly untenable or hopeless. And if a claim is untenable or hopeless, then it would be an abuse of court process. 

9.	I have considered the particulars of the alleged fraud in this matter and concluded that they are vague and lack the requisite particularity. The particulars of the fraud, in some instances appear speculative, for instance at paragraph 16(c) the Second Applicant says that the signature of the deceased “appears to have been forged” and the particulars of the impersonation are not given. 

10.	On close scrutiny, there is nothing in the pleadings that identifies the nature, time and manner of the alleged fraud. The absence of satisfactory particulars in a claim based on fraud is fatal.

NO ALLEGATION OF TRANSFER OF TITLE

11.	In these pleadings there is no allegation of any registration or proprietary interest giving rise to standing to challenge the Second Respondent’s title which enjoys indefeasibility under our law. Furthermore, the pleadings do not state whether the gift was oral or in writing.

THE APPLICANT’S CLAIM SUFFERS FROM SEVERAL FATAL DEFICIENCIES 

12.	The Applicant’s claim suffers from several fatal deficiencies:

•	The alleged fraud is not sufficiently particularized – who did what, when and how.

•	There is no allegation of formal or informal transfer of ownership, nor any equitable basis for claiming an interest.

•	The Applicant fails to allege that the deceased gift resulted in registration or some form of recognition in law.

13.	Accordingly, this court cannot allow this claim to proceed beyond this point on account of all the above and also given the indefeasibility of title that the Second Respondent now enjoys.

CONCLUSION

14.	This claim does not, on the pleadings, disclose a reasonable cause of action, and it is frivolous and vexatious within the meaning of Order 12 Rule 40(1) of the National Court Rules. The Court will exercise its inherent jurisdiction to protect its processes.

15.	The court orders that:

1)	The proceedings are dismissed in their entirety.

2)	Costs are awarded to the Second Respondent – such costs to be agreed or taxed.
________________________________________________________________
Lawyers for the applicant:	George Kaore Lawyers
Lawyers for the respondent:	Albright Lawyers