N11714

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 252 OF 2023

HENRY TAND 
Plaintiff 

V

JOE ONN
Defendant

AND

WS NO. 614 OF 2024

JOE ONN
      First Plaintiff

ONN’S J AUTO REPAIRS LIMITED
Second Plaintiff

           V

HENDRY TAND
Defendant

KIMBE: ANDELMAN J
14 NOVEMBER 2025;13 FEBRUARY 2026

NOTICE OF MOTION: summary judgment – bad faith in mediation – failure to comply with court order – res judicata – time bar – oral agreement for the sale of land

Mr Onn alleges that he entered into an oral agreement with Mr Tand to purchase land in 2005 with a term of the contract being that title deeds to the land would be transferred to him subsequently. Mr Onn and Onn J’s Auto Repairs Limited seek specific performance of the contract. Mr Tand alleges that Mr Onn was permitted to set up his business on the land because he was married to his sister but when the relationship ended he was required to vacate the property. He seeks an order for eviction and unpaid rent in the form of mesne profits. The proceedings were heard together.

Held:
(1)	Mr Onn’s and Onn J’ Auto Repairs Limited claim is dismissed for the following reasons:

a.	it is an abuse of process as the same facts and issues were heard and determined by the District Court; and
b.	it discloses no reasonable cause of action as the contract for the sale of land was not in writing; ss 2, 4 Frauds & Limitations Act 1998.

(2)	Mr Onn, his employees, associates and agents are to vacate the property at Portion 2384, Milinch of Meigigi SW, Fourmil of Talasea within 30 days of the date of this order.

(3)	Mr Onn shall pay Mr Tand’s costs of both proceedings on a party-party basis which shall be taxed if not agreed.

Cases cited

Augwi Ltd v Xun Xin Xin [2014] PGSC 83; SC1616
GR Logging Ltd v Dotaona (2018) PGSC 34
Hiwi v Rimua [2015] PGSC 60; SC1460
Oil Search Ltd v Mineral Resources Development Corporation Ltd [2010] PGSC 12; SC1022
Pacific Trade International Ltd v Waisime [2020] PGSC 20; SC1935

Counsel

Mr B Takua, for Mr Tand
Mr P Mokae, for Mr Onn and Onn’s J Auto Repair Limited

1.	ANDELMAN J: This is a decision on an Amended Notice of Motion filed by Mr Tand on 20 October 2025 and heard on 14 November 2025. 

2.	The pertinent parts of the Notice of Motion seek the following orders:	

a.	 Pursuant to Order 2 Rule 11(2)(c) of the Alternative Dispute Resolution Rules 2022 the proceedings be summarily determined against the defendant in OS 252 of 2023 and against the plaintiff in WS 614 of 2023;

b.	 In the alternative, pursuant to Order 10 Rule 9A(15)(1)(a) and 2(c) of the National Court Rules the matter be summarily determined against the defendant in OS 252 of 2023 and against the plaintiff in WS 614 of 2023 for want of compliance with term two of the court order of 3 September 2025;

c.	 In the further alternative, pursuant to Order 8 Rule 27(c) and Order 12 Rule 40(1)(b)(c) & (d) and 2 of the National Court Rules, the proceedings WS 614 of 2023 be dismissed for being an abuse of the court process and summary judgment be entered against the defendant in the proceedings OS 252 of 2023 pursuant to Order 12 Rule 38(1)(a)(b) and (2) of the National Court Rules; and

d.	Costs

3.	Mr Tand identified the issues as; whether Mr Onn’s conduct was lacking in good faith by his failure to attend a meeting as ordered by the Court, whether Mr Onn’s cause of action was estopped or is res judicate because the same or similar proceedings in the District Court, is time barred and lacks a written agreement for the sale of land.

Pleadings

4.	Mr Onn and Onn’s J Auto Repairs Limited in proceeding WS No 164 of 2023 pleaded that:

a.	In the middle of 2005, Mr Tand offered to sell some of his land to Mr Onn for him to set up his mechanic workshop;
b.	Towards the end of 2005, Mr Onn and Mr Tand agreed that a marked portion of the land from Mr Tand’s state lease described as Portion 2384, Milinch of Megigi, Fourmil of Talasea (the land) be purchased for K10,000 and occupied by Onn’s J Auto Repairs Limited before a subdivision is carried out and a title created, issued and transferred to Onn’s J Auto Repairs Limited;
c.	Mr Onn paid Mr Tand K10,000;
d.	In or about 2018 Mr Tand commenced to demand rent from Mr Onn and the payment of an additional K10,000;
e.	From 2005 to 2018 Mr Onn developed the land and it was now valued at K1,850,000.
f.	Mr Onn and Onn’s J Auto Repairs claimed:
i.	 specific performance for completion of the sale of land to the plaintiffs;
ii.	 special damages;
iii.	pecuniary exemplary damages; and
iv.	interest and cost.
5.	Mr Tand in his defence denied that there was ever an agreement to sell land or that K10,000 was paid to him.

6.	Mr Tand pleaded that Mr Onn was married to his sister and they already lived on the land and were paying rent. The agreement was for Mr Onn and his sister to set up the wokshop on the land and when the business grew, rent would be paid to Mr Tand.

7.	In 2013 Mr Onn separated from Mr Tand’s sister. Due to Mr Tand’s love and affection for his sister’s children, in 2018 he offered to sell the land to Mr Onn for K10,000 but the agreement did not eventuate.

8.	Mr Tand pleaded that the entire proceeding ought to be dismissed for:
a.	Abuse of court process – res judicata, the same claim under the same cause of action of breach of the purported agreement was dismissed by the Kimbe District Court following a hearing - DC No 112 of 2023  on 5 October 2023; and
b.	Want of cause of action as there is no written agreement for the land.

9.	Mr Tand in proceeding OS 252 of 2023 sought the following:
a.	A declaration that Mr Tand is a registered legal proprietor of the land; 
b.	A declaration that Mr. Onn occupies the land without paying rentals due to Mr Tand;
c.	 An order that Mr Onn is evicted;
d.	An order that in the event that Mr Onn fails to comply with the eviction notice the plaintiff shall with the assistance of Kimbe police enter by force and evict the defendant;
e.	 An order that Mr Onn pay to Mr Tand misne profits at the rate of K3,500.00 per month as of April 2023 up to the date of this order; and
f.	 Costs

10.	Mr Onn failed to file a defence.

The Evidence
11.	Mr Tand relied on four affidavits; affidavit sworn by Mr Tand on 21 November 2023 (Exhibit 1), affidavit by Mr Kamure sworn on 2 May 2025 (Exhibit 2) an affidavit sworn by Mr Tand on 7 October 2025 (Exhibit 3);  and an affidavit sworn by Mr Tand on 5 November 2025 (Exhibit 4).

12.	Mr Onn relied on two affidavits; an affidavit sworn by Mr Onn on 28 August 2024 (Exhibit A), and an affidavit by Mr Onn sworn on 27 October 2025 (Exhibit B).

13.	The undisputed background is that Mr Tand holds the title deeds to the land. Mr Onn continues to reside and conduct his business, Onn’s J Auto Repairs Limited on the land.

14.	 Following the end of the marriage between Mr Onn and Mr Tand’s sister, Mr Tand asked Mr Onn to pay rent for conducting his business on the land.

15.	In 2023, Mr Onn and others commenced proceedings in the District Court against Mr Tand claiming the land. On 5 October 2023 the District Court made an Order dismissing the entire claim for disclosing no cause of action in law.

16.	Mr Tand commenced proceedings in this court on 18 September 2023 and Mr Onn commenced proceedings in this court on 31 October 2023.

17.	Both matters were referred to mediation on 7 October 2024. The mediation was attended by all parties and an agreement was reached, signed by all parties and endorsed by the mediator. 

18.	The Mediated Agreement dated 28 February 2025 was for the land to be sold by Mr Tand to Mr Onn based on an evaluation report prepared by an independent valuer.

19.	On 5 March 2025 the Court directed the parties to settle on a purchase value and complete a sale and purchase agreement upon a proper valuation of the land ‘with the exclusion of any development thereon’.

20.	Both parties engaged a valuer however the valuation of the land differed and the parties could not settle on a purchase value. Both parties agreed to jointly engage one independent valuer to conduct a valuation. Pia Valuers conducted the valuation which was completed on the 3 September 2025.

21.	 On 3 September 2025, the court made Orders for the parties to meet in person with their lawyers to discuss and settle on the valuation and prepare a consent order by 6 October 2025. Mr. Tand’s solicitor organised a meeting for himself, Mr Tand, Mr. Onn and his lawyer to meet on 2 October 2025 (pursuant to order 2 of court Order made on the 3 September 2025). Mr. Onn failed to attend the meeting and Mr Onn’s solicitor was late coming to the meeting. No agreement was reached at the meeting.

22.	In evidence included:
a.	Valuation report by Peter Maguiri Dau dated 28 March 2025;
b.	Valuation report by Peter Maguiri dated 27 October 2023;
c.	Valuation report by Jerry Berom dated 25 September 2025;
d.	Photos of Mr Onn’s workshop yard;
e.	Email exchange between counsel for the parties and valuer from 2 September 2025 to 23 October 2025;
f.	 Certificate of Title naming Mr Tand as the proprietor of the land; and
g.	District Court DC 12 of 2023 documents including:
i.	Summons to a Person Upon Complaint and Statement of Claim filed on 25 July 2023;
ii.	Affidavit of Joe Onn sworn on 14 July 2023;
iii.	Witness statement of Nisi Pius Onn dated 22 September 2023; and
iv.	Court Order dismissing the proceedings for not disclosing any cause of action law made on 5 October 2023.

23.	Mr Onn’s evidence in regard to the valuation of the land was that it was understood at the mediation that the valuation would be dated back 20 years because of the developments and improvements he undertook to the land. Mr Onn was dissatisfied with the independent valuation report because the market value was given for the land as at 25 September 2025.

24.	Mr Onn stated that following the valuation report in September 2025, his lawyer communicated this concern to Mr Tand’s lawyer at the meeting on 2 October 2025 and that there was due diligence on his part in complying with the court orders.

Submissions

25.	The parties had an opportunity to file written submissions prior to the hearing and make oral submissions during the hearing.

Bad Faith

26.	Mr Tand submitted that the following conduct by Mr Tand amounted to ‘bad faith’ within the meaning of O 2 r 11 of the ADR Rules:

a.	Failure to attend meeting on 2 October 2025 organised pursuant to  orders made on 3 September 2025;
b.	Disputing the independent valuation report engaged upon by agreement;
c.	Contacting the valuer to cause changes to the report without prior knowledge by Mr Tand; and
d.	Proposing new valuation contrary to initial agreement and court orders.

23.	In reply to this submission, counsel for Mr Onn submitted that this conduct did not amount to ‘bad faith’ because his solicitor attended the meeting and that there was a misunderstanding made by Pia Valuers because the valuation was to be made based on the value of the property in 2005 prior to Mr Onn making improvements to the land.

Abuse of Process

24.	Mr Tand submitted that Mr Onn’s proceeding was an abuse of process for being res judicata as the same cause of action on the same facts had been determined by the District Court on 5 October 2023.

25.	Counsel for Mr Onn did not respond to this submission.

Time Bar

26.	Mr Tand submitted that the cause of action is time barred as it arose out of a result of an alleged agreement in 2005; s 16 of the Frauds & Limitations Act 1998, which is in the following terms:

(1) Subject to Sections 17 and 18, an action–
(a) that is founded on simple contract or on tort; or
(b) to enforce a recognisance; or
(c) to enforce an award, where the submission is not by an instrument under seal; or
(d) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,
shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

27.	In response, counsel for Mr Onn did not respond to this submission directly but submitted that because Mr Tand had agreed to have the matter resolved at mediation he could not now claim that the proceeding is time barred.

Requirement for a written contract for the sale of land

28.	Mr Tand submitted that a contract for the sale of land must be in writing; ss 2 and 4 of the Frauds & Limitations Act 1998, which is in the following terms:

(2)(1) Subject to Subsection (2) and Section 5–
(a) no interest in land can be created or disposed of except–
(i) by writing signed–
(A) by the person creating or disposing of the interest; or
(B) by that person’s agent lawfully authorized in writing for the purpose; or
(ii) by operation of law; or
(iii) by will; and
(4) No action shall be brought upon a contract for the sale or other disposition of land or an interest in land unless the contract, or some note or memorandum of the contract, upon which the action is brought is in writing signed–
(a) by the person against whom the action is brought; or
(b) by an agent of that person lawfully authorized in writing for the purpose.

29.	In response, counsel for Mr Onn did not respond to this submission directly but submitted that because Mr Tand had agreed to have the matter resolved at mediation he could not now claim that there was no valid contract.

Consideration
Bad Faith

30.	The pertinent parts of the ADR Rules that deal with ‘bad faith’ are set out in O 2 r 10 and r 11:

10 Parties’ duties
 
 		...
(2)        Each party must participate in good faith in the mediation and not impede the mediator in conducting and completing the mediation process within the time set by these Rules or by the Court.
 
(3)        As the purpose of mediation is to resolve disputes, the parties shall focus on finding a solution to their dispute and shall refrain from engaging in legal debates or arguments.
 
... 
 
11.              Bad faith       
 
(1)       Where a party fails to discharge any of that party’s duties under Order 2 rule 10, the mediator may issue a bad faith certificate in Form 3D of Schedule 2 and a copy of the certificate shall be furnished by the mediator to all parties.
 
(2)       Subject to subrule (3), where the Court is satisfied that a party has not participated in good faith in the mediation or has impeded the mediation or has otherwise failed to meet that party’s obligations under a mediation order or agreement, the Court may order:
 
(a)          the dismissal of the proceeding; or
(b)         the striking out of a defence and enter judgment; or
(c)     the striking out of a defence to a cross-claim and enter judgment for a plaintiff or cross-claimant; or
(d)     that any claim for relief by the defaulting party is stayed until further order;
(e)     costs on an indemnity or lawyer and client basis; and or         
(f)     make such further or other orders as it may consider appropriate in the circumstances and in the proceeding.

(3)       The Court shall not make an order under subrule (2)(a) to (e) unless the Court has heard the parties as to why any of those heads of relief should not be granted.

31.	There is an initial legal question that was not addressed by either party which is whether the court can make an order that a party has conducted itself in bad faith pursuant to Or 2 r 11(2) in circumstances where there is no bad faith certificate issued by the mediator pursuant to Or 2 r 11(1). There is no allegation that Mr Onn conducted himself in ‘bad faith’ during the mediation.

32.	I do not need to concern myself with this question as even if the Court could make such an order I would decline to do so as I am not satisfied that Mr Onn has not participated in good faith in the mediation or has otherwise failed to meet his obligations under a mediation order or agreement.

33.	This is because there is a factual dispute as to whether the land was to be valued at 2025 price or 2005 price. Mr Onn gave instructions to his solicitor to pass on those concerns to the solicitor for Mr Tand, this occurred at the meeting on 2 October 2025. Accepting that the solicitor was late and that Mr Onn did not attend as directed, I would not because of this issue alone dismiss the proceedings and summarily determine the claim for Mr Tand as sought in Order 2 of the Notice of Motion.

34.	I am not prepared at an interlocutory hearing to determine this factual dispute which if the matter proceeded to final hearing may have been subject to further evidence and cross examination.

35.	I refuse to grant Order 1 or 2 sought in the Notice of Motion.

Abuse of Process

36.	Before the court are pleadings, evidence and an order of the District Court.

37.	I am satisfied that Mr Onn’s claims before this Court have already been dealt with and determined by the District Court on 5 October 2023.

38.	I accept Mr Tand’s submission that Mr Onn’s proceeding is an abuse of process for being res judicata as the same cause of action on the same facts had been determined by the District Court on 5 October 2023.
39.	The judgement by Cannings, Collier and Dingkake JJ in GR Logging Ltd v Dotaona (2018) PGSC 34,  determined  that in order for res judicata to apply, the earlier decision must not only be judicial, pronounced and final, it must also be on the merits. I am satisfied that the District Court decision was determined on the merits. It was dismissed because the District Court was satisfied that there was no binding contract for the sale of land.

40.	I uphold paragraph 3 of the Notice of Motion and dismiss WS 614 of 2023 proceeding and enter summary judgement in OS 252 of 2023 on this basis.

Time Bar

41.	Mr Onn pleaded that the contract for the sale of land was made sometime towards the end of 2005.

42.	In Oil Search Ltd v Mineral Resources Development Corporation Ltd [2010] PGSC 12; SC1022 Injia CJ, Cannings and Makail JJ stated that:

[23] If a claim is clearly time-barred and provided the statutory defence is pleaded in the defence, a motion for dismissal is warranted and it would be quite appropriate for the National Court to hear and determine it. Where, however, the case for dismissal is not clear-cut, the decision-making process of first, identifying the cause of action, secondly, identifying the date on which the cause of action arose and then, deciding the question of whether the cause of action is founded on a simple contract or is an action upon a speciality, can only efficaciously be carried out at a trial....
43.	The claim is a contract claim for which specific performance is sought together with other claims for damages. In Hiwi v Rimua [2015] PGSC 60; SC1460 Cannings, Kariko and Bona JJ differentiated between a claim in which only equitable relief is sought and those claims that seek equitable relief in addition to non equitable remedies.

23. We agree with the approach recently taken by the Supreme Court (Sakora J, David J and Hartshorn J) in Mamun Investment Ltd v Nixon Koi (2015) SC1409 that only where the relief sought by a plaintiff is confined to specific performance of a contract or an injunction or other equitable relief can an action fall within Section 18. It is, however, not sufficient for a plaintiff to seek specific performance or an injunction or some other equitable relief if such remedies are sought in addition to non-equitable remedies. It is only where the plaintiff seeks purely equitable relief that the action will fall within Section 18.

44.	Section 18 of the Act states that section 16 does not apply to any claim of specific performance of a contract or for an injunction or for other equitable relief.

45.	The question of whether this case falls within s 16 or s 18 of the Frauds & Limitations Act 1998 is not a clear cut one and decline to summarily dismiss Mr Onn’s proceeding on this basis.

Requirement for a written contract for the sale of land

46.	 There is no dispute that Mr Onn claims that the entire contract for the sale of land was oral.

47.	Sections 2 and 4 of the Frauds & Limitations Act 1998 require the creation or disposal of an interest in land to be in writing and be signed.

48.	Specific performance being an equitable remedy is a precondition to a valid and enforceable contract for the sale of land; Augwi Ltd v Xun Xin Xin [2014] PGSC 83; SC1616 Injia CJ, David and Gabi JJ at [17] and [19].

49.	Specific performance cannot be sought in a claim where there is an alleged oral contract for the sale of land as it is not a valid or enforceable contract.

50.	On this basis, I find pursuant to  Or 12 r 1 and Or 12 r 40(1)(a) of the National Court Rules that Mr Onn’s claim discloses no reasonable cause of action and dismiss the whole of the proceeding.

‘Mesne profits’ and eviction

51.	There is no evidence of any invoices for rent issued by Mr Tand to Mr Onn. Mr Tand made no submissions to support the claim of K3,500 monthly rental.

52.	To assess damages for mesne profits, the Court is to consider the market value of the property occupied or used for the period of the wrongful occupation. The Court may consider the commercial rental value of the land if it were to be rented at the relevant time; Pacific Trade International Ltd v Waisime [2020] PGSC 20; SC1935 Mogish J, Makail J and Koeget J.

53.	There is no evidence of commercial rental value of the land and the claim has not been made out.
54.	There is no dispute that Mr Onn continues to live and work on the land. Based on the findings I have made that Mr Onn’s claim does not disclose any reasonable cause of action because it does not disclose a written contract for the sale of land and was previously determined by the District Court, he has no entitlement to be on Mr Tand’s land.

55.	I will make the eviction orders sought by Mr Tand.
Costs

56.	Mr Tand has been successful in his claim to have WS No 624 of 2023 dismissed and have proceedings in OS 252 of 2023 summarily determined in his favour. I consider that in these circumstances Mr Onn should pay Mr Tand’s legal costs in both proceedings on a party/party basis as agreed or assessed.
Orders
1.	In proceedings WS 614 of 2023; 
a.	 The proceeding is dismissed for disclosing no cause of action and being an abuse of process pursuant to Order 12 rule (1) and 40(1)(a) and (c) of the National Court Rules.
b.	The plaintiffs pay the defendant’s costs on a party party basis or as assessed if not agreed.
2.	In proceeding OS 252 of 2023;
a.	Judgement is entered for the plaintiff.
b.	The defendant with his servants, agents and associates or otherwise evict themselves from portion 2384, Milinch of Meigigi SW Fourmil of Talasea within 30 days of the date of this order
c.	 An order pursuant to section 155(4) of the Constitution that in the event the defendant fails to comply with term 2(b) of this Order the plaintiff shall with the assistance of the Kimbe police enter by force and evict the defendant with his servants, agents and associates or otherwise from portion 2384, Milinch of Meigigi SW Fourmil of Talasea 
___________________________________________________________
Lawyers for the plaintiff in OS 252 of 2023 and defendant in WS 614 of 2023: Takua Lawyers
Lawyers for the plaintiffs in WS 614 of 2023 and defendant in OS 252 of 2023: Mokae & Associates