N11730
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO 255 OF 2023   

BETWEEN
WAIRA KAPI-HAODA 
  Plaintiff

AND
CAMPSON SAPUL JNR
First Defendant

AND
JACOB POPUNA – PUBLIC CURATOR OF PAPUA NEW GUINEA 
Second Defendant

AND
ALA ANE AS THE REGISTRAR OF TITLES, DEPARTMENT OF LANDS AND PHYSCIAL PLANNING
Third Defendant

AND
BENJAMIN SAMSON – SECRETARY FOR DEPARTMENT OF LANDS AND PHYSCIAL PLANNING
Fourth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

 WAIGANI: MAKAIL J
 4 & 9 MARCH 2026   

PRACTICE & PROCEDURE – Application to set aside ex parte order dismissing the proceedings for want of prosecution – Reasonable explanation for default or non- attendance at hearing – Arguable case – Interests of justice – National Court Rules – Order 12, rule 8 
Cases cited
Nil 
Counsel

Waira Kapi-Haoda, the plaintiff, in person
Mr S Malaga, for the first defendant 
No appearance, for second, third, fourth & fifth defendants

RULING

1.     MAKAIL J:  This is an application pursuant to a notice of motion filed by the plaintiff on 17th December 2025 seeking an order to set aside an ex parte order dismissing the proceedings for want of prosecution pursuant to Order 12, rule 8 of the National Court Rules (“NCR”).

2.     According to the statement of claim endorsed to the writ of summons filed on 14th June 2023, the plaintiff whom I shall refer to as Mrs Kapi-Haoda alleges that the first defendant’s late father had obtained a loan from PNG Banking Corporation (PNGBC), now Bank South Pacific Limited (BSP Bank) to purchase a residential property described as Allotment 42 Section 355, Gerehu Stage 1 (Hohola), National Capital District.  The property was put up as security for the loan and mortgaged to PNGBC (now BSP Bank). The first defendant’s late father passed away on 24th September 2004 without completing the loan.  

3.	Mrs Kapi-Haoda further alleges that BSP Bank repossessed the property under the mortgage and rather than putting it on public tender for interested applicants to bid for it, BSP Bank Security Division engaged Strickland Real Estate to recover the outstanding loan.  At that material time, she was working with BSP Bank and expressed an interest “for my family and I to move into the property”.  The BSP Bank Asset Management and Strickland Real Estate entered into a lease agreement for 12 months which Mrs Kapi-Hoada signed and paid a bond fee and first instalment and moved into the property with her family.  The lease was from December 2007 to December 2008.  When the lease expired, she and her family remained on the property from 2009 to date.  She alleges that she “paid loan on our own accord until the loan was repaid on 6th September 2010.”

4.	Also, she alleges that she paid over K85,799.52 from her wages and some from her retirement benefits.  When the outstanding loan was completed on 6th September 2010, the mortgage was discharged to the Office of the Public Curator.  In 2021, the title of the property was transferred from the Public Curator to the first defendant by the third defendant.  As a result of the actions of the defendants, she and her family were deprived from the quiet enjoyment of the property and suffered distress and anxiety including incurring further costs in litigating the dispute.  She seeks an injunction, continuation of a caveat on the property and transfer of title from the first defendant to her, reimbursement of K85,799.52 and general damages, plus costs on an indemnity basis.

5.	The first defendant and third to fifth defendants filed their respective defences, essentially denying the claim and allegations made by Mrs Kapi-Haoda.  The first defendant also included a crossclaim in its defence and alleges that he is the title holder of the property following its transmission from the second defendant to him and seeks an order for vacant possession of the property and payment of outstanding rentals from Mrs Kapi-Haoda or the second defendant in the sum of K132,166.26.  

6.	On 5th November 2025 when the matter came on for motions and for hearing of the first defendant’s motion to dismiss the proceedings for want of prosecution, Mrs Kapi-Haoda did not appear.  It was Ms Williams from the Public Solicitors Office who appeared and advised the Court that her instructions to act for Mrs Kapi-Haoda were withdrawn.  As a result, she was not heard.  Mr Malaga of counsel for the first defendant appeared.  Ms Wungin of the Solicitor General’s Office appeared for the third to fifth defendants. After hearing Mr Malaga, who was supported by Ms Wungin, the Court dismissed the proceedings for want of prosecution and issued further orders to progress the first defendant’s crossclaim to trial.  The crossclaim was adjourned to 11th November 2025 at 9:30 am for further directions: see Court Order of 5th November 2025. 

7.	Mrs Kapi-Haoda relies on her affidavit sworn and filed on 17th December 2025.  In this affidavit she explains that she did not attend the hearing on 5th November 2025 because she travelled to Brisbane, Australia to be with and care for her sick husband who was seeking specialist medical treatment at the Royal Brisbane and Women’s Hospital.  She was in Brisbane from 13th October 2025 until 7th November 2025 and she returned to Port Moresby.  She admitted that she did not inform the defendants’ lawyers about her travel to Australia and her unlikely availability if the matter was called up in Court while she was overseas.  

8.	Her explanation and in particular, the lack of notice to the defendants’ lawyers of her unlikely availability received criticism from Mr Malaga whom I must agree is, entitled to express that view.   It’s quite interesting what a short note to the defendants’ lawyers or even a telephone call noting that these days, communication between people by mobile phone is, in everyday life, readily available, can do if Mrs Kapi-Haoda had resorted to either.  She gave the first defendant’s lawyers no option but for Mr Malaga to ask for the first defendant’s motion to be heard in her absence.  However, as outlined at [7] above, Mrs Kapi-Hoada has provided a reasonable explanation for the default or non-appearance on the date of hearing.  
9.	The next question is, does she have an arguable case?  Based on her submissions and allegations pleaded in the statement of claim and outlined at [2]-[4] above, it is noted that Mrs Kapi-Hoada does not allege that the BSP Bank agreed to sell the property to her and pursuant to that agreement, she will pay by fortnightly instalment, a fixed sum of Kina to BSP Bank for a fixed period of time.  In other words, what is missing in the pleadings is the existence of a contract of sale of the property between BSP Bank and Mrs Kapi-Haoda which she can seek to enforce if it was breached.  In the absence of such pleadings, if the matter is progressed to trial, Mrs Kapi-Hoada will be confined to proving the allegation that she “paid loan on our own accord until the loan was repaid on 6th September 2010,” which is not the same as breach of the agreement by BSP Bank for not selling the property to her.

10.	It may be that Mrs Kapi-Hoada paid a total sum of K85,799.52 to BSP Bank, as alleged, but again there is no allegation that the BSP Bank had agreed to sell the property to her when she completes the outstanding loan of the first defendant’s late father.  On the other hand, it is clear she was given the property and moved in with her family in December 2007 under a lease agreement for 12 months.  During that period, she paid rent for the use of the property.  When the lease expired in December 2008, there is no mention in the pleadings that the lease was extended.  Indeed, Mrs Kapi-Hoada admitted that she took it upon herself to pay the outstanding loan after the lease agreement expired. But this would be contrary to the lease agreement because it has expired. 

11.	In addition, she has not produced any written agreement or contract of sale between BSP Bank and herself as evidence that BSP Bank agreed to sell the property to her at the completion of the outstanding loan of the first defendant’s late father.  Without this evidence, it will not be necessary to consider her evidence that she completed the outstanding loan.

12.	These key points demonstrate that Mrs Kapi-Hoada does not have an arguable case for the Court to exercise its discretion to set aside the ex parte order of 5th November 2025 and allow her case to progress to trial.

13.	Finally, the Court must weigh up the interests of justice and finality to litigation considerations. Because Ms Kapi-Haoda alleges that the mortgage to the BSP Bank was discharged to the Office of the Public Curator in 2010 and subsequently, the title was transmitted to the first defendant in 2021, the BSP Bank has recouped its money and the title to the property passed to the first defendant who holds it free of any encumbrances unless proven otherwise under Section 33(1) of the Land Registration Act.  The first defendant is the current title holder.  Mrs Kapi-Hoada does not have title but resides on the property.  Weighing up the interests of the parties, it would not be in the interests of justice to relitigate the case against the defendants.  

14.	For the foregoing reasons, the application to set aside the ex parte order of 5th November 2025 is refused, with costs to the first defendant, to be taxed if not agreed.
________________________________________________________________
Lawyers for first defendant: Sanol Malaga Lawyers	
Lawyer for second, third, fourth & fifth defendants: Solicitor General