N11691
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO 226 OF 2021 (IECMS-CC3)

BETWEEN:
MOROBE PROPERTIES LIMITED
Plaintiff

AND:
GERU HOLDINGS LIMITED
Defendant

WAIGANI: WAWUN-KUVI J
29 MARCH 2023; 4 FEBRUARY 2026

DECLARATION-REAL PROPERTY-TITLE TO PROPERTY-Title transferred to plaintiff through a mortgage sale-Defendant had mortgaged the property as a guarantee for a sister company- Sister company defaulted- multiplicity of proceedings filed by the defendant to prevent sale of property- Defendant continued to occupy property and continually refused to give vacant possession alleging that the mortgagee did not following proper process despite prior court rulings.
Morobe Properties Limited is the registered proprietor to the property described as Allotment 10, Section 3, Town of Kundiawa, area of 12 Peaches, District of Chimbu, Volume 28, Folio 156. It acquired the property through a mortgage sale from Bank of South Pacific Limited. However, despite purchasing the property it has not been able to take possession for almost 15 years because Geru Holdings Limited refuses to give it vacant possession. Geru Holdings has filed several proceedings claiming that proper processes were not followed leading to the sale of the property.
Held:
1.	The multiple proceedings filed by Geru Holdings against Bank of South Pacific were unsuccessful.
2.	Morobe Properties Limited is an innocent third party.
3.	Given that there is no controversy that Morobe Properties Limited is the registered proprietor of the property described as Allotment 10, Section 3, Town of Kundiawa, area of 12 Peaches, District of Chimbu, Volume 28, Folio 156 and that its right to the property is being affected by Geru Holdings Limited refusal to give up vacant possession, all the reliefs sought are granted.
Counsel
P Kewa for the plaintiff
A Daugl for the defendant

DECISION

1.	WAWUN-KUVI  J: The plaintiff, Morobe Properties Limited (MPL) seeks the following declarations and consequential reliefs:

1.	A Declaration pursuant to s 155(4) of the Constitution and s 32 of the Land Registration Act, 1981 that Morobe Properties Limited (Plaintiff) is the sole registered proprietor and has indefeasible title over the property described as Allotment 10, Section 3, Town of Kundiawa, area of 12 Peaches, District of Chimbu, Volume 28, Folio 156, contained in business lease under s 61 of the Land Ordinance 1962 (as amended), as such, it has the legal right to occupy the property to the exclusion of others. 
2.	An order pursuant to s 155(4) of the Constitution and Order 14 Rule 10 (2) or alternatively under Order 12 Rule (1) of the National Court Rules 1983 that the plaintiff be given vacant possession of the property described as Allotment 10, Section 3, Town of Kundiawa, area of 12 Peaches, District of Chimbu, Volume 28, Folio 156, contained in business lease under s 61 of the Land Ordinance 1962 (as amended)
3.	 If the order sought in terms of paragraph 2 herein is in the affirmative, a further order pursuant to s 155(4) of the Constitution and Order 14 rule (10)(2) alternatively, under Order 12, (1) of the National Court Rules 1983, the defendant, its tenants, servants and/ or agents shall, within 14 days from the date of the service of the order, vacate the property.
4.	 If the order sought in terms of paragraph three hearing is not complied with, the members of the Royal Papua New Guinea Constabulary are directed to give vacant possession to the plaintiff forthwith.
5.	 Costs
6.	Any other orders the honorable court deems fit. 

2.	There is no controversy that the plaintiff MPL is the registered title holder of the property described as Allotment 10, Section 3, Town of Kundiawa, area of 12 Peaches, District of Chimbu, Volume 28, Folio 156 (the property). It is also incontrovertible that the property was sold to the plaintiff MPL through a mortgage sale by the Bank of South Pacific Limited (BSP). However, despite the plaintiff MPL being the registered title holder, it has not occupied the property.

3.	The background facts are also of no controversy. Peter Kama is a director and shareholder of the defendant GHL. The defendant GHL initially held title to the property. On 2 June 2008, the defendant GHL signed a deed of guarantee and indemnity supported by registered mortgages against the property and other properties for a loan to Piunde Limited from the Bank of South Pacific Limited. Mr Kama was also the director of Piunde Limited.

4.	A judgement debt was obtained against Piunde Limited in proceedings styled WS 1423 of 2004. The judgement creditor commenced proceedings to recover the debt in proceedings styled MP 34 of 2014. These events then eventually led to BSP issuing notices of default to Piunde Limited and its guarantors.

5.	BSP eventually sold the property to the plaintiff MPL.

6.	Prior to the sale, the defendant GHL and Mr Kama filed several proceedings challenging BSP’s ability to rely upon various securities for the monies owed by Piunde Limited, including the deed of security and indemnity and its ability to enforce those securities by the sale of the various properties.

7.	These proceedings are court records. The proceedings are:

1.	 OS 305 of 2009: Instituted by Mr Kama and GHL against BSP in relation to the property and two other properties. The proceeding was discontinued in August 2012.
2.	WS 157 of 2011: Commenced by Piunde Limited and Homeland Joint Venture Limited against BSP and two of its officers. Homeland Joint Venture Limited is jointly owned by Mr Kama and the Simbu Provincial Government. The claim was that BSP had breached an oral agreement made in 2007 to lend funds to Homeland Joint Venture which caused Piunde Limited to fund Homeland Joint Venture causing it to default. The proceeding was dismissed in 2011 for want of prosecution.
3.	OS 797 of 2015: Commenced by GHL against James Kruse and Deloitte Touche Tohmatsu. Deloitte was appointed by BSP to sell the properties which secured the loan. Mr Kruse acted as an agent for Deloitte to sell the properties. 
4.	On 23 January 2017, Hartshorn J refused to continue interim injunctions restraining the sale of the properties by BSP. GHL discontinued the proceeding and the next day filed WS 428 of 2017.
5.	WS 428 of 2017 (Geru Holdings Ltd v Kruse [2017] N7650): GHL commenced the proceeding to stop BSP from advertising the sal properties. The property subject of this proceeding was one of the properties. On 5 July 2017, Kariko J refused to grant interim orders restraining BSP from advertising and subsequently selling the properties. The Court refused the relief on the following basis:
•	There was no real question to be tried because:
o	the claims of negligence and deceit/misrepresentation were likely statute-barred pursuant to s 16 of the Frauds and Limitations Act 1988.
o	the claim of unfair/unconscionable conduct was likely statute-barred pursuant to s 11(1) of the Fairness of Transactions Act 1993.
o	there was no legal basis to claim that an agent, appointed to sell a property on behalf of a bank exercising its rights to sell as a secured mortgagee over that property, owes the duty of care that was claimed by GHL.
•	Damages was an adequate remedy
•	Abuse of process: In OS 797 of 2015: Geru Holdings Limited v James Kruse & Deloitte Touche Tohmatsu, Hartshorn J refused the continuation of interim injunctions restraining the sale of the properties. Further to that refusal, his Honour ordered the action proceed by way of pleadings. Rather than acting pursuant to that order and seeking leave to add Homeland Joint Venture Limited and Peter Kama as plaintiffs and BSP and Robin Fleming as defendants, OS 797 of 2015 was discontinued and this proceeding was then filed the very next day together with the present application that seeks effectively the same interim injunctions sought in OS 797 of 2015.

8.	SCA No 105 of 2017 (Geru Holdings Limited, Homeland Joint Venture Limited and Peter Kama v James Kruse, Deloitte Touche Tohmatsu, Robin Flemming and Bank of South Pacific Limited [2020] SC 2050): Aggrieved by the decision of Kariko J in WS 428 of 2017, GHL appealed. The Supreme Court dismissed the appeal and affirmed the decision of Kariko J concluding: 

“the appellants did not have a very strong case at all and all their claims in the National Court appeared to be statute barred and appeared to be a rehash of relief sought in previous proceedings. The primary judge correctly ruled that the application for interim injunctive relief was an abuse of process.”

9.	 The decision by the National Court on 5 July 2017 in WS 428 0f 2017 was affirmed.

10.	Consequential, there was nothing preventing BSP from selling the properties by exercising its right as a mortgagee.
11.	What of the outcome of the substantive proceeding in WS 428 of 2017? Court records show that WS 428 of 2017 was discontinued following the dismissal of the appeal in SCA 105 of 2017.

12.	WS 221 of 2021 (Geru Holdings Limited v James Kruse and Deloitte Touche Tohmatsu published decision Geru Holding Ltd v Kruse [2021] PGNC 338; N9169): GHL commenced proceedings again. The facts in the case were that GHL was a guarantor to a loan taken out by Piunde Limited. Piunde Limited defaulted in 2009 to its loan obligations and as a result, BSP exercised its’ rights in respect of that loan and its’ securities.

13.	Tamade AJ dismissed the proceeding on application by MPL on the following basis:

•	The claim by MPL was time barred as discussed by the Supreme Court in SCA No 105 of 2017 (Geru Holdings Limited, Homeland Joint Venture Limited and Peter Kama v James Kruse, Deloitte Touche Tohmatsu, Robin Flemming and Bank of South Pacific Limited [2020] SC 2050).
•	GHL engaged in multiplicity of proceedings.
•	The conduct of Mr Gagma who has been the lawyer on record in all the matters was unprofessional.
•	GHL is a vexatious litigant.

14.	GHL appealed in SCA 142 of 2021. 

15.	MPL then commenced this proceeding to seek a declaration that it had indefeasible title and consequential relief for vacant possession.

16.	Court records show that on 3 November 2023, the Supreme Court affirmed the decision in WS 221 of 2021. The decision is published as Geru Holdings Ltd v Kruse [2023] PGSC 141; SC2492. 

17.	Having regard to the history of the matter, the plaintiff MPL is an innocent third party. It purchased the property from BSP through a mortgage sale. The multiple proceedings prior to the sale demonstrate that all cases against BSP were unsuccessful and that BSP was not restrained from selling the property.

18.	Given that there is no controversy that MPL is the registered proprietor under s 32 of the Land Registration Act, it has a right to the property. Its right has been affected for almost 15 years by GHL refusing to give vacant possession. 
19.	Considering the background and the reasons given, I grant all the reliefs sought by the plaintiff.

Orders 

20.	The Court orders:
1.	The declaration sought pursuant to s 155(4) of the Constitution and s 32 of the Land Registration Act, 1981 that Morobe Properties Limited (Plaintiff) is the sole registered proprietor and has indefeasible title over the property described as Allotment 10, Section 3, Town of Kundiawa, area of 12 Peaches, District of Chimbu, Volume 28, Folio 156, contained in business lease under s 61 of the Land Ordinance 1962 (as amended), as such, it has the legal right to occupy the property to the exclusion of others is granted.
2.	Pursuant to s 155(4) of the Constitution, Order 14 Rule 10 (2) and Order 12 Rule (1) of the National Court Rules 1983 the plaintiff  is given vacant possession of the property described as Allotment 10, Section 3, Town of Kundiawa, area of 12 Peaches, District of Chimbu, Volume 28, Folio 156, contained in business lease under s 61 of the Land Ordinance 1962 (as amended).
3.	Pursuant to s 155(4) of the Constitution, Order 14 rule (10)(2) and Order 12, (1) of the National Court Rules 1983, the defendant, its tenants, servants and/or agents shall, within 14 days from the date of the service of the order, vacate the property.
4.	After 14 days, in the event that the defendant its tenants, servants and/ or agents fail to vacate the property, the Police Provincial Commander of Chimbu Province and all the members of the Royal Papua New Guinea Constabulary are directed to enter the property and give vacant possession of the property to the plaintiff forthwith.
5.	 The defendant shall pay the costs of the plaintiff on a party-party basis to be taxed if not agreed.
6.	Time is abridged.

Lawyers for the plaintiff: Pacific Attorneys & Consulting Group
Lawyers for the defendant: Gagma Legal Services