SC1927
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

SCR NO.73 OF 2017

APPLICATION FOR REVIEW PURSUANT TO SECTION 155(2)(b) OF THE CONSTITUTION

APPLICATION BY:
NODEPA PLANTATION LIMITED
First Applicant

AND:
BRUCE TSANG
Second Applicant

BAWAN BALAT AND WINSTON BALAT
Respondents

Waigani:  David, Yagi & Kassman, JJ
2020:  14 February

SUPREME COURT REVIEW – Application to review decision of National Court – transfer of title to property to first applicant - fraud alleged – declarations sought to declare that transfer of title to first applicant null and void and of no effect – defence raised that proceedings statute-barred – summary judgment entered in favour of respondents - leave granted – substantive review upheld by majority judgment – Constitution, Section 155(2)(b).

Cases Cited:

Avia Aihi v The State (1981) PNGLR 81
Douglas Dent v Thomas Kavali & Ors (1981) PNGLR 488
Avia Aihi v The State (No.2) (1982) PNGLR 44
Mudge v Secretary for Lands [1985] PNGLR 387
NCDIC v Bogibada Holdings Pty Ltd (1987) PNGLR 135
PNG  v Colbert [1988] PNGLR 138
Ok Tedi Mining Limited v Niugini Insurance Corporation & Ors (No.2) (1988-89) PNGLR 425
Emas Estate Development Pty Limited v John Mea and The State [1993] PNGLR 215
Kappo No. 5 Pty Ltd v Wong [1997] PGSC 3, SC 520
Application by Ludwig Patrick Shulze; Review Pursuant to Constitution, Section 155(2)(b) (1998) SC572
Tau Gumu v Papua New Guinea Banking Corporation (2001) N2288
Benny Diau v Mathew Gubag (2004) SC775
Mark Bob v The State (2005) SC808
Re An Election Petition for the Tari Pori-Pori Open Electorate; James Marabe v Tom Tomiape and Electoral Commission (2006) SC827
Application by Herman Joseph Leahy (2006) SC855
Poraituk v Hagen (2007) N3204
Ona v National Housing Corporation and Nambawan Supa Limited (2009) SC995
Elizabeth Kanari v Augustine Wiakar and Registrar of Titles (2009) N3589
Oil Search Limited v Mineral Resources Development Corporation Limited (2010) SC1022
Pololi v Wyborn (2013) N5253  
Mamun Investment Ltd v Nixon Koi (2015) SC 1409

Treatise Cited:

Peter Hammond, Limitations of Actions - The Laws of Australia 2nd Edition, 2007

Counsel:

Ian Shepherd, for the Applicants
Otto Ogen Dekas, for the Respondents

JUDGMENT
14th February, 2020

1.	DAVID & YAGI, JJ:  INTRODUCTION: This is a decision in relation to an application to review the decision of the National Court made on 20 September 2012 brought under Section 155(2)(b) of the Constitution.  Leave to apply for review was granted on 6 September 2017. 

BACKGROUND

2.	The National Court proceedings concerned a property known as Allotment 20 Section 15 Kavieng, New Ireland Province and described in State Lease Volume 63 Folio 241 (the property).

3.	The title to the property was transferred to the second applicant, Bruce Tsang on 3 July 1978, then to Amon Balat (the deceased), the late husband and father of the respondents Bawan Balat and Winston Balat respectively on 1 June 1983 and then to the first applicant, Nodepa Plantation Ltd on 7 March 2003.

4.	By writ of summons endorsed with a statement of claim filed on 25 February 2011 and amended by amended writ of summons endorsed with an amended statement of claim filed on 7 November 2011, the respondents commenced the National Court proceedings pursuant to which it was alleged that the transfer to the first applicant in 2003 was fraudulent.  The respondents sought, among others, a declaration that the registration of title in the name of the first applicant was null and void and of no effect and an order that the deceased was the registered proprietor.   

5.	By a defence filed on 4 February 2012 (pp. 36-37 RB), the respondents averred that the proceedings were statute-barred under Section 16(1) of the Frauds and Limitations Act 1988 or alternatively, the respondents were not and never were the executors or administrators of the estate of the deceased.

6.	By a reply filed on 26 March 2012, the respondents claimed that the proceedings were brought to recover the property that had been fraudulently transferred to the first applicant and that the action was saved under Section 19 of the Frauds and Limitations Act 1988.  They also admitted that they were never executors or administrators of the estate of the deceased, but had sufficient interest to pursue the action as the immediate surviving relatives of the deceased.  

7.	On 22 May 2012, the respondents filed a notice of motion seeking summary judgment pursuant to Order 12 Rule 38(1)(b) of the National Court Rules on the basis that the applicants had no defence to the respondents’ claim.

8.	On 5 July 2012, the applicants filed an amended notice of motion seeking, among others, orders to dismiss the proceedings on the basis that; they failed to disclose any reasonable cause of action, and for being an abuse of the process of the Court pursuant to Order 8 Rule 27 of the National Court Rules; or alternatively for being statute-barred pursuant to Section 16(1) and or Section 19(1) of the Frauds and Limitations Act 1988.

9.	Both notices of motion were heard by the National Court on 20 September 2012.  The National Court dismissed the applicants’ motion and granted the respondents’ application for summary judgment.

10.	On 22 April 2013, the applicants filed an application to review the decision of the National Court in the Supreme Court in proceedings SCR No.28 of 2013.

11.	The hearing of SCR No. 28 of 2013 went before the Supreme Court on 27 October 2016 when the Court found that as the applicants had not sought leave to apply for review in the first instance, the review was not properly before the Court.   The Court granted leave to the applicants to withdraw that application and ordered costs against them.  The Court also ordered that the applicants were at liberty to file an application for leave to review to go before a single judge of the Supreme Court.

12.	Thereafter, on 27 July 2017, the applicants filed an application for leave to review.  On 6 September 2017, the Court granted the application.

GROUNDS OF REVIEW

13.	The grounds of review are set out at page 78 of the Review Book and these are:
1.	The National Court  erred in law in failing to uphold the Applicants’ application to dismiss the proceedings for being statute barred when the Respondents’ cause of action did not arise within six years before the commencement of the National Court proceedings and was therefore statute barred by virtue of section 16(1) of the Frauds and Limitations Act 1993.
2.	The National Court erred in law in granting summary judgment in favour of the Respondents on the basis that the Applicants had no defence to the Plaintiffs’ claim when the Applicants had pleaded the Frauds and Limitations Act 1998 in its defence filed 4 February 2012.
3.	The National Court erred in law in granting summary judgment in favour of the Respondents when the Respondents’ claim was based on fraud which was alleged to have occurred on 26 March 1999 or on registration of the First Applicant’s interest in the land in 2003 on the basis that Division IV of Order 12 of the National Court Rules relating to summary disposal is not available where the claim by the Plaintiff is one based on an allegation of fraud pursuant to Order 12 Rule 37(b).
4.	The National Court erred in law in granting orders in terms of 1, 2, 3, 4, 5, 6, 7 and 8 when the Respondents claim was statute barred by virtue of the Frauds and Limitations Act 1988 and when it was not open for the National Court to enter summary judgment by virtue of Order 12 Rule 37(b) of the National Court Rules.

ORDERS SOUGHT

14.	The orders sought in the review are set out at page 78 of the Review Book and the principal relief sought are:

1.	An order that the National Court’s Decision of 20 September 2012 be reviewed and dismissed.
2.	That National Court proceedings WS 113 of 2011 be dismissed.
3.	The respondent[s] pay the applicants’ costs of this application and the National Court proceedings.

JURISDICTION

15.	In a matter brought before the Supreme Court under Section 155(2)(b) of the Constitution, two distinct steps need to be observed.  The first step is a determination of whether leave should be granted to the applicant for a review to occur. The second step is that if leave is granted, then the application for review will be heard and determined.  However, if leave is not granted, then there will be no review:  Mark Bob v The State (2005) SC808.  

16.	Where leave is granted to apply for judicial review, the Supreme Court needs to be satisfied that three criteria are satisfied before it will exercise its discretionary power to uphold the review and consider granting any of the orders sought by the applicant:  Re An Election Petition for the Tari Pori-Pori Open Electorate; James Marabe v Tom Tomiape and Electoral Commission (2006) SC827, Benny Diau v Mathew Gubag (2004) SC775. The applicant needs to convince the Court that the applicant is not a busy body and he must demonstrate that there is an issue (or are issues) to be tried or reviewed: Benny Diau v Mathew Gubag (2004) SC775.

17.	The three criteria are set out in Avia Aihi v The State (1981) PNGLR 81 and Avia Aihi v The State (No.2) (1982) PNGLR 44 and were further clarified by the Supreme Court in Application by Ludwig Patrick Shulze; Review Pursuant to Constitution, Section 155(2)(b) (1998) SC572 and Application by Herman Joseph Leahy (2006) SC855.  In Application by Ludwig Patrick Shulze; Review Pursuant to Constitution, Section 155(2)(b) (1998) SC572, the Supreme Court stated:

“The nature of a review is different from the right of appeal that may be invoked under the provisions of the Supreme Court Act. The grounds upon which the right of appeal may be exercised are much wider in that a person may appeal on virtually any ground including appeal against findings of fact only.  On the other hand, the grounds upon which a judicial review may be brought are limited by the criteria set out in Avia Aihi v The State  (supra) ... (and) conveniently set out in PNG v Colbert (1988) PNGLR 138 where the Court concluded that the discretionary power of the Court should be exercised only where:

1.	it is in the interest of justice;
2.	there are cogent and convincing reasons and exceptional circumstances, when some substantial injustice is manifest or the case is of special gravity; and
3.	there are clear legal grounds meriting a review of the decision.”

18.	In the same case, His Honour Justice Injia (as he then was), observed that review of a decision for the National Court under Section 155 (2)(b) should only be granted in the most exceptional of cases on an important point of law which clearly has merit or on points of evidence where there is a gross error clearly manifested on the face of the record.

CONSIDERATION OF GROUNDS OF REVIEW

19.	The four grounds of review can be narrowed down to two main grounds and these are:

1.	the respondents’ claim in the National Court was statute-barred and so the applicants’ application for summary dismissal should have been granted; and
2.	the Court had no jurisdiction to award summary judgment in favour of the respondents as their claim was based on an allegation of fraud and summary judgment procedure was not available under Division 4 of the National Court Rules.

Frauds and Limitations Act 1988

Applicants’ submissions

20.	Mr Shepherd essentially contended that the National Court ought to have granted the applicants’ application for summary dismissal as the proceedings were statute-barred under Section 16(1) of the Frauds and Limitations Act 1988.  In addition, it was argued that the respondents’ reliance on Section 19 of the Frauds and Limitations Act 1988 to support their contention that the action could be brought within 12 years after the date on which the cause of action accrued was misconceived as that provision clearly only relates to a claim against the personal estate of a deceased person.  That is, it does not relate to real estate, but only relates to claims against the personal estate of a deceased person and not by his or her personal representatives.  It was also argued that the National Court’s findings that the cause of action was not founded on contract nor was it a specialty, but was to preserve the estate of the deceased was questionable as only the Public Curator had standing, as opposed to the respondents, by virtue of Section 44 of the Wills Probate and Administration Act to commence proceedings with respect to the estate of the deceased.    

21.	For these reasons, it was submitted that the National Court clearly fell into error.

Respondents’ submissions 

22.	It was Mr Dekas’ contention that since the cause of action accrued on 13 April 2004 when the title to the property was purportedly transferred to the first applicant, the respondents’ action was preserved by Section 19(1) of the Frauds and Limitations Act 1988 which allowed for actions to be commenced within 12 years of the cause of action accruing.

23.	As to the applicants’ argument that only the Public Curator had standing to commence an action with respect to the estate of the deceased, it was argued that the National Court correctly found that the deceased died intestate, no probate or letters of administration was granted to the Public Curator and the purported transfer of the title to the first applicant was tainted with fraud.  Therefore, it was submitted that the respondents who had admitted that they were never appointed as executors or administrators of the estate of the deceased had sufficient interest to pursue the action as the immediate surviving relatives of the deceased.  

Reasons for decision

24.	Was the respondents’ action statute-barred?  The application of Sections 16(1), 18 and 19 of the Frauds and Limitations Act 1988 are relevant to the determination of the question and we set them out below:

	16.	Limitations of actions in contract, tort, etc

(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 and sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,
shall not brought after the expiration of six years commencing on the date on which the cause of action accrued.

18.	Claims for specific performance, etc.
Section 16 does not apply to any claim for specific performance of a contract or for an injunction or for other equitable relief.

19 	Actions claiming personal estate of a deceased person, etc
(1)	No action in respect of any claim -
(a)	to the personal estate; or
(b)	to any share or interest in the personal estate,
of a deceased person, whether such claim is under a will or on intestacy, shall be brought after the expiration of twelve years commencing on the date when the right to receive the personal estate or the share or interest in the personal estate accrued.
(2)	No action to recover arrears of interest in respect of any legacy, or damages in respect of such arrears, shall be brought after the expiration of six years commencing on the date when the interest became due.

25.	In the National Court proceedings, the respondents claim a declaration that the registration of the title in favour of the first applicant was null and void and other consequential orders and the principal relief was sought based on the allegation that the property was transferred to the first applicant fraudulently.

26.	Is a declaratory relief, an equitable relief?  Two positions appear to be taken in this jurisdiction.  One view is that it is an equitable relief so Section 18 of the Frauds and Limitations Act 1988 would apply:  see NCDIC v Bogibada Holdings Pty Ltd (1987) PNGLR 135, Puraituk v Hagen (2007) N3204.  The other view is that it is a statutory remedy having its origins in the latter words of Section 155(4) of the Constitution hence it is necessary to examine the pleadings in each case in order to determine the true nature of the relief sought: Douglas Dent v Thomas Kavali & Ors (1981) PNGLR 488, Ok Tedi Mining Limited v Niugini Insurance Corporation & Ors (No.2) (1988-89) PNGLR 425, Mamun Investment Ltd v Nixon Koi (2015) SC 1409.  We subscribe to that position.
 
27.	In this case, as in Mamun Investment Ltd v Nixon Koi (2015) SC 1409, the primary basis for the declaratory relief claimed is not in equity, but is actually based on the tort of fraud:  see also Pololi v Wyborn (2013) N5253.  In our view, the principal claim and relief claimed in the statement of claim cannot be categorised as “other equitable relief” which would necessarily be saved under Section 18.   

28.	The respondents claim therefore ought to have been filed within six years of the cause of action accruing.

29.	In Mamun Investment Ltd v Nixon Koi (2015) SC 1409, the Supreme Court approved of the view propounded in English cases mentioned there that a cause of action accrues and time begins to run irrespective of the plaintiff’s lack of knowledge.  It disapproved of the decision in Tau Gumu v Papua New Guinea Banking Corporation (2001) N2288 where the National Court observed that in an action based on fraud, the period of limitation does not begin to run until the aggrieved party has discovered the fraud.  We subscribe to those views.  In Mamun Investment Ltd v Nixon Koi (2015) SC 1409, the Supreme Court said that the cause of action accrued at the latest from the date of registration of the transfer of title.  

30.	In the present case, the transfer of the title from the deceased to the first applicant occurred on 7 March 2003.  The instrument of transfer was produced for registration on 7 March 2003 and entered on 13 April 2004.  

31.	Section 27 of the Land Registration Act is relevant in considering the effective date of registration.  It states:

  	27.	Effective date of registration.

(1)	An instrument, when registered, takes effect from the date when it was produced to the Registrar for registration which date shall be specified in the certificate of title or other instrument issued by the Registrar.
(2)	The date of production of an instrument to the Registrar for the purpose of registration shall be deemed to be the date of registration of the instrument.

32.	Clearly, in the present case, the effective date of registration was 7 March 2003 being the date of production of the transfer for registration.  The cause of action at the latest accrued from 7 March 2003.

33.	The National Court proceedings initially were filed on 25 February 2011.  Clearly, they were filed after the expiration of six years. They are caught by Section 16(1).  The effect of that is the National Court proceedings were incompetent and they did not disclose any reasonable cause of action and also amounted to an abuse of the process of the Court. 

34.	In the result, it is now not necessary to consider the remaining ground.  

35.	KASSMAN J:  I have had the benefit of reading the joint judgment of my learned brothers David J and Yagi J.  With respect, I will dissent. My consideration of this matter is now provided. 

Background facts

36.	Nodepa Plantation Limited ("Nodepa") and Bruce Tsang ("Tsang") apply pursuant to section 155(2)(b) of the Constitution for review of the decision of the National Court by His Honour Justice Sawong ("the learned primary judge") of 20 September 2012 in proceedings WS 113 of 2011 Bawan Balat and Winston Balat v Nodepa Plantation Limited and Bruce Tsang ("the National Court proceeding").  Bawan Balat and Winston Balat ("the Balats") are the wife and son respectively of the Late Amon Balat ("Amon").   

37.	By the decision under review, the learned primary judge made two interlocutory rulings which substantively determined liability in favour of the Balats.  Firstly, the learned primary judge refused an application by Nodepa and Tsang for dismissal of the proceedings where they argued the claims by the Balats were statute barred pursuant to section 16(1) of the Frauds & Limitations Act 1993. Nodepa and Tsang say in this review the learned primary judge erred and they repeat their arguments presented before the learned primary judge.  Secondly, the learned primary judge granted summary judgement for the Balats and issued consequential orders. Nodepa and Tsang say in this review the learned primary judge erred in granting summary judgment when the essential claim by the Balats was based on an allegation of fraud and summary judgment is not a procedure available and they base their arguments on Order 12 Rule 37(b) of the National Court Rules.  

38.	Nodepa and Tsang first applied for review of the decision of the learned primary judge in Supreme Court proceedings SCR No. 28 of 2013 on 22 April 2013.  That proceeding went before the Supreme Court and on 27 October 2016 which found Nodepa and Tsang had failed to seek leave of the Supreme Court and the review was not properly before the Court. The Supreme Court then granted Nodepa and Tsang leave to withdraw proceeding SCR No. 28 of 2013. The Supreme Court also granted Nodepa and Tsang “liberty to file an Application for Leave to Review to go before a single judge of the Supreme Court”.

39.	Nodepa and Tsang filed application for leave to apply for review in this proceeding SCR 73 of 2017 on 27 July 2017. In considering the grant of leave, the court had to be convinced Nodepa and Tsang had a serious interest in the proposed review proceedings and were not busy bodies and that there was a serious issue to be reviewed by the Supreme Court. The Supreme Court granted Nodepa and Tsang leave to apply for review on 6 September 2017.   The Application for Review was filed on 18 September 2017 which this court will now determine.  

Law on Review pursuant to section 155(2)(b) of the Constitution

40.	The law on a review pursuant to section 155(2)(b) of the Constitution was first set out by the Supreme Court in Avia Aihi v The State [1981] PNGLR 81 and was further clarified in Application by Ludwig Patrick Shulze [1998] PGSC41 SC572 where the Supreme Court concluded: “The nature of review is different from the right of appeal that may be invoked under the provisions of the Supreme Court Act. The grounds upon which the right of appeal may be exercised are much wider in that a person may appeal on virtually any ground including appeal against findings of fact only. On the other hand, the grounds upon which a judicial review may be brought are limited by the criteria set out in Avia Aihi v The State (supra).” In most matters that come for review pursuant to section 155(2)(b) of the Constitution, the applicants have failed to file an appeal as of right within time allowed of 40 days from the decision appealed as provided by section 17 of the Supreme Court Act. In this matter, the decision under review was made on 20 September 2012. Nodepa and Tsang had until 30 October 2012 to file an appeal and they failed to do that. They filed the first review proceeding on 22 April 2013.      

41.	The Supreme Court in Shulze (supra) then referred to PNG v Colbert [1988] PNGLR 138 where the court concluded “the discretionary power of the Court should be exercised only where: (a) it is in the interests of justice; (b) there are cogent and convincing reasons and exceptional circumstances, when some substantial injustice is manifest or the case is of special gravity; and (c) there are clear legal grounds meriting a review of the decision.”
 
Grounds of Review

42.	The grounds of review set out in the Application for Review filed on 18 September 2017 are as follows:

“3.1	The National Court erred in law in failing to uphold the Applicants application to dismiss the proceedings for being statute barred when the Respondents' cause of action did not arise within six years before the commencement of the National Court proceedings and was therefore statute barred by virtue of section 16(1) of the Frauds and Limitations Act 1993.

3.2	The National Court erred in law in granting summary judgment in favour of the Respondents on the basis that the Applicants had no defence to the Plaintiffs' claim when the Applicants had pleaded the Frauds and Limitations Act 1998 in its defence filed 4 February 2012.

3.3	The National Court erred in law in granting summary judgment in favour of the Respondents when the Respondents' claim was based on fraud which was alleged to have occurred on 26 March 1999 or on registration of the First Applicant's interest in the land in 2003 on the basis that Division IV of Order 12 of the National Court Rules relating to summary disposal is not available where the claim by the Plaintiff is one 	based on an allegation of fraud pursuant to Order 12 Rule 37(b).

3.4	The National Court erred in law in granting orders in terms of 1, 2, 3 4, 5, 6, 7 and 8 when the Respondents claim was statute barred by virtue of the Frauds and Limitations Act 1988 and when it was not open for the National Court to enter summary judgment by virtue of Order 12 Rule 37(b) of the National Court Rules.”

43.	I am permitted to exercise my discretionary power of review only where: (a) it is in the interests of justice; (b) there are cogent and convincing reasons and exceptional circumstances, when some substantial injustice is manifest or the case is of special gravity; and (c) there are clear legal grounds meriting a review of the decision. In coming to that exercise of discretion, I am also asked in this review to make three specific findings. Firstly, I must find whether the claim or claims of the Balats are based on allegations of fraud. Secondly, if I find the claims by the Balats are based on a claim or claims raising allegations of fraud, I must find whether summary judgment was not a procedure available to the Balats pursuant to Order 12 Rule 37(b) of the National Court Rules. Thirdly, I must find whether the claims by the Balats were statute-barred pursuant to section 16(1) of the Frauds & Limitations Act 1993. I will deal firstly with the specific findings to be made and then return to discuss whether I should exercise my discretionary powers of review.   

Claims or pleadings by the parties in the National Court proceedings

44.	The following are not disputed. Firstly, the National Court proceedings between the Balats, Nodepa and Tsang concern property at Allotment 20 Section 15 Kavieng, New Ireland Province ("the property"). Secondly, title to the property was transferred to Tsang in 1978, then to Amon in 1983 and then to Nodepa in 2003.  Thirdly, Amon passed away on 4 March 1993.  

45.	If the National Court proceedings had progressed to a trial on the substantive issues raised in the pleadings of the parties, the trial court would have had to examine the process by which title to the property was transferred from Amon to Nodepa in or prior to the year 2003, ten years after Amon had passed away. Further, the trial court would have had to determine whether that was a legitimate transfer of title from Amon to Nodepa. 

46.	The National Court proceedings were not progressed to trial where the Balats would have had to call or adduce evidence, direct or circumstantial, as to the facts of their claims and in anticipation of any evidence to be called or adduced by Nodepa and Tsang. Following that, Nodepa and Tsang would have also been allowed the opportunity to call evidence in response to the evidence from the Balats and in support of their defence. The National Court proceedings did not progress to trial on the substantive facts and issues raised in the pleadings but was summarily determined by the learned primary judge who determined the two interlocutory applications in two rulings in favour of the Balats.            

47.	By the Writ of Summons filed on 25 February 2011 and amended on 7 November 2011, the Balats claimed the transfer of title to the property from Amon to Nodepa in 2003 was fraudulently procured or registered and for those reasons the Balats claimed declarations the transfer to Nodepa was null and void and of no effect and that Amon remains the registered proprietor of the property.  The Balats also claimed damages for losses allegedly sustained by the fraudulent actions that resulted in the transfer of title to Nodepa in 2003. 

48.	Essentially, the Balats claimed Amon and Tsang were property and business owners in Kavieng, New Ireland Province where they were both resident with their respective families. Tsang conducted business through his company Nodepa. Amon was the owner of the land on which was erected buildings from which the business “Discount Store” was operated as a trade store (“the trade store”). Tsang was the owner of land on which the Biwa Plantation was operated principally as a coconut and cocoa plantation (“the Plantation”). In the year 1975, Amon and Tsang entered into an agreement to conduct business together. It may have been the case Amon being a citizen and Tsang a non-citizen, they both entered into this arrangement in compliance with requirements or to satisfy regulations as to the conduct of business by non-citizens in PNG immediately after PNG gained independence on 16 September 1975. The trade store was operated by Amon from 1976 to 1984 and then Tsang from 1984 to 1988.   In the year 1989, Amon and Tsang entered into another agreement providing that the Plantation would be transferred and wholly owned by Amon for a set price of K100,000 and Amon would transfer the trade store to Tsang for a set price of K40,000. It was also agreed that, in the event of a default in the agreed arrangements, that agreement would be deemed null and void and Amon would pay Tsang K800 monthly for the Plantation and Tsang would pay Amon K400 monthly for the lease of the trade store and the leases were extended for a further 5 years. The Balats claimed the agreement was not followed or implemented. The trade store was never returned to Amon. Tsang continued to occupy and operate the trade store. Amon passed away on 4 March 1993. The Plantation was returned by the Balats to Tsang. 

49.	The Balats later discovered title to the Trade Store was transferred to Nodepa and the Balats claim that was done fraudulently. The particulars of fraud provided were “(1) There was no transfer of title from the late Amon Balat to the First or Second Defendant or to any other person. (2) Under the terms of the Memorandum of Agreement of 28 March 1989, the trade store and the whole property were to have been returned to Amon Balat by the Second Defendant which did not happen.(3) The Contract for Sale and Purchase of Land and the Transfer dated 26 March 1999 purported to have been signed by Winston Balat for and on behalf of his late father Amon Balat was not signed by Winston Balat. (4) The First and Second Defendants were represented by Watt & Co. Lawyers in the sale and transfer of title of the property and they should have also known that Winston Balat had no legal authority to execute the sale and transfer of title or to deal with his late father’s estate without the authority of the Public Curator.

50.	In a Defence filed on 4 February 2012, Nodepa and Tsang claimed the Balats "alleged cause of action did not arise within 6 years before the commencement of this action and is barred by section 16(1) of the Frauds and Limitations Act 1988."  Alternatively, Nodepa and Tsang claimed the Balats "are not and never were executors or administrators of the said Amon Balat deceased". I note Nodepa and Tsang failed to respond specifically to the pleading by the Balats that the transfer of title to the property from Amon to Nodepa in about 2003 was fraudulently procured or registered.  All they assert is that the claim by the Balats is time-barred.

51.	By a Reply filed 26 March 2012, the Balats joined issue with the defence of Nodepa and Tsang and said that the Balats "action is brought to recover land ... that was fraudulently transferred to Nodepa and the action is saved by Section 19 of the Frauds & Limitations Act 1988." Further, the Balats say they "admit that they were never executors and administrators to the estate of their late husband and father respectively, but the Plaintiffs have sufficient interest to bring this action as the immediate surviving relatives of the deceased." 

Two interlocutory applications in the National Court proceedings

52.	On 11 July 2012, the learned primary judge heard two applications, one filed by the Balats and the other by Nodepa and Tsang.  Both applications were supported by affidavits sworn by lawyers for each party and not by the parties in person from a member of the Balat family or from Bruce Tsang and a director or principal officer of Nodepa.  Obviously, that evidence relied on by the parties on the critical issues was all hearsay and presumably on instructions. 

Application for Summary Judgment 

53.	The motion filed on 14 May 2012 by the Balats sought summary judgment pursuant to Order 12 Rule 38(1) of the National Court Rules on the basis Nodepa and Tsang had no defence to the claim by the Balats. 

54.	The only affidavit filed in support of the motion by the Balats was that of Paul Harricknen, a lawyer with the firm of Harricknen Lawyers, filed 14 May 2012 which in effect was a legal submission making reference to the pleadings and some essential facts.  I repeat in full paragraphs 6, 7 and 8 which are relevant:

"6. 	The Plaintiff's claim is that the transfer of title in the land described as Section 15, Lot 	20,Kavieng, New Ireland Province to the First Defendant is fraudulent on the original power in the estate of the deceased intestate are vested in the Public Curator.

7.	I am informed and believe that the purported transfer of land occurred between Winston Balat and the Defendants.  The Defendants knew or ought to have known that the Public Curator should be involved in such transfer of land, or alternatively by the Plaintiffs if they had been granted letters of administration.

8.	The Defendants have raised a general defence based on constraint under the Frauds 	and Limitation Act, the matter complained of which is the transfer of land in 2003 part of the interest of an estate of the late Amon Balat and was accordingly fraudulently transferred by the Defendants." 

55.	Paul Harricknen had annexed to his affidavit the State Lease to the property and the two documents critical to the matters in issue which are the contract for sale and the transfer instrument as to the purported transfer of title from Amon to Nodepa that was registered on title in 2003. 

56.	The State Lease Volume 63 Folio 241 was issued as a Business Lease in 1978 and it shows registration on title of various transfers.  First to Tsang in 1978, then to Amon in 1983 and then to Nodepa in 2003. In 1983, Westpac Bank registered a mortgage which was discharged in 2003.  

57.	In respect of the transfer from Amon to Nodepa, the contract for sale and purchase of land was prepared by Wat & Co. Lawyers of Kavieng and is in standard form for a simple conveyance of property.  It is between Amon as vendor and Nodepa as purchaser for the price of K6,000.  The contract has the date handwritten as 26th March 1999.  On perusal of the execution page, for the vendor, the name Winston Balat is inserted below a signature which appears along with the signature of a witness who is not specifically named or identified.  For the purchaser, a common seal of Nodepa was applied with a signature of a person who is not identified. I note there are seals or stamps applied on the first page which ordinarily show that the document was lodged at the Stamp Duties Office and registered in the Department of Lands and Registry of Titles. The transfer instrument as to the purported transfer of title from Amon to Nodepa was entered on the Register of Titles on 7 March 2003. I note there are seals or stamps applied on the first page of the Transfer instrument which would ordinarily confirm that the Transfer instrument was lodged at the Stamp Duties Office and registered in the Department of Lands and Registry of Titles. Critically, I note the transfer instrument is not signed by or on behalf of the transferor Amon.   

58.	Harricknen also has annexed to his affidavit a copy of official receipt no:135554 issued by the Department of Lands on 27 February 2003 as evidence of payment of "Registration of Transfer" fee of K1000 but it states it is in respect of Lot 3 Section 2 Namatanai, New Ireland Province. That document is of no relevance to the property the subject of this dispute which is Allotment 20 Section 15 Kavieng, New Ireland Province.

59.	In a written submission filed in the National Court on 5 July 2012, the Balats argue "... the defence raised by the Defendant does not address the serious triable factual and legal issues of fraud and the fraudulent transfer of land to the Defendants in 2003." and relied on the National Court case of National Provident Fund Board of Trustees v Maladina (2003) N2486 saying the court can grant summary judgment based on the grounds the defendant has not raised a defence to the allegations of fraud by the plaintiff.         
  
Application for dismissal of the proceedings

60.	The amended motion filed by Nodepa and Tsang on 5 July 2012 sought dismissal of the proceedings for disclosing no reasonable cause of action and for being an abuse of process pursuant to Order 8 Rule 27 of the National Court Rules. Alternatively, dismissal of the proceedings was sought on the basis the claims by the Balats were statute barred pursuant to Sections 16(1) and 19(1) of the Frauds & Limitations Act 1988.    

61.	The only affidavit filed in support of the motion by Nodepa and Tsang was that of Newman Dickson, a lawyer in the firm of Henaos Lawyers, filed 11 April 2012.  Annexed to this affidavit are the pleadings filed which we referred to above being the statement of claim, defence and reply. Also annexed is a document titled "Deed of Acknowledgment" which has the date handwritten in as 12 March 1999 and it apparently has the signatures of the wife and children of Amon namely Bawan Balat, Winston Balat, Rhonda Balat, Cynthia Balat, Lorna Balat, Mala Balat and Evelyn Balat. The deed contains three paragraphs which state:

"We, Bawan Balat (wife of Mr Amon Balat), and children of Mr Amon Balat (Winston Balat, Rhonda Balat, Cynthia Balat, Mala Balat, Evelyn Balat), hereby acknowledge the debt owed by Mr Amon Balat to Mr Bruce Tsang to the sum of Sixty Thousand Kina (K60,000).
We also acknowledge the agreement between Mr Amon Balat and Mr Bruce Tsang in satisfaction of the said Debt above mentioned, the property being Section 15, and Allotment 20 in the Town of Kavieng, New Ireland Province will be transferred to Mr Bruce Tsang as payment of the said Debt.

The above debt will be settled on the transfer of ownership and title of the above mentioned property to Mr Bruce Tsang with the title being registered to Nodepa Plantation."   

62.	In a written submission filed by Henaos Lawyers in the National Court on 10 July 2012, Nodepa and Tsang address the time limitation issues separately. Reliance on section 16 of the Frauds & Limitations Act is made in two respects. 

63.	Firstly, reference is made to the agreement allegedly entered into between Amon and Tsang on 28 March 1989. The parties did not produce any document evidencing that agreement. Neither was there an affidavit filed containing any evidence about that agreement. On the documents on record or filed in Court, the alleged agreement is referred to in the Amended Statement of Claim at paragraph 10 as a "Memorandum of Understanding". In paragraph 12 of the Amended Statement of Claim, it was claimed the property was to have returned to Amon on or by 1998.  As the property was not returned to Amon on or by 1998, Nodepa and Tsang argue the cause of action on breach of the Memorandum of Understanding accrued from the year 1998 and the time limitation of six years expired in 2004. The writ was filed in the year 2011 which is 13 years after accrual of the cause of action.

64.	Secondly, reference is made to the contract for sale and transfer allegedly executed in 2003 which the Balats claim, in the Amended Statement of Claim, was fraudulently executed.  Nodepa and Tsang argue that cause of action accrued the year the fraud allegedly took place and that was in 2003 and so it is time barred as the Balats had six years or until 2009 to commence legal proceedings but their Writ was filed out of time in the year 2011. 

65.	Nodepa and Tsang rely on section 19 of the Frauds & Limitations Act saying that as Amon passed away on 4 March 1993, the right to receive the personal estate or interest in the personal estate of Amon accrued on the day after Amon’s demise on 5 March 1993. Section 19 provides a time period of 12 years for filing of a claim based on the personal estate of a deceased person and, as such, proceedings had to be filed by 2005.  The writ was filed in the year 2011 and again that cause of action is time-barred.

66.	In response, Fairfax Legal for the Balats filed written submission on 10 July 2012. They argued, Amon died intestate on 4 March 1993 and by section 44 of the Wills Probate and Administration Act, the estate of Amon vested in the Public Curator. Although Nodepa and Tsang argue the transfer was signed by Winston Balat, the son of Amon, Winston denies that and the Balats argue he was never appointed as the Administrator of the Estate of Amon and accordingly he could not have legally transferred title to Nodepa. 

67.	Further, the Balats argued their action is preserved by section 19 as it is an action seeking to preserve the estate of the late Amon. They say their cause of action accrued following the registration of the transfer of title from Amon (allegedly) to Nodepa on 13 April 2004. The Balats say they had 12 years to commence their action and that ran until the year 2016. The Balats filed their writ of summons in the year 2011 which is well with the time limitation period of 12 years. 

68.	The Balats also argued the transfer was fraudulently executed and was an illegal transaction and reliance was placed on the cases of Elizabeth Kanari v Augiustine Wiakar and Registrar of Titles (2009) N3589, Mudge v Secretary for Lands [1985] PNGLR 387, Emas Estate Development Pty Limited v John Mea and The State [1993] PNGLR 215.

69.	Further, the Respondents also argued Nodepa and Tsang could not rely on the law to defeat their failure to comply with the law and they relied on a decision of the Supreme Court in Ona v. National Housing Corporation and Nambawan Supa Limited (2009) SC995 which said " It would be unconscionable for an employer and the Board, having failed to comply with their statutory duties, to wear the cloak of Frauds and Limitations Act and deny an employee and a contributor of an entitlement provided for by law.  On this note, we endorse the decision of Kandakasi J in the case of Tau Gumu v PNGBC (2001) N2288 where his Honour ruled against an employer who attempted to rely on the Frauds and Limitations Act after it failed to give the required notice under the Workers Compensation Act 1988 resulting in lapse of time beyond 6 years." 

70.	In oral submissions in court on 11 July 2012, Mr Dickson of Henaos Lawyers appeared for Nodepa and Tsang and Mr Dawidi of Fairfax Legal appeared for the Balats. Both counsel relied on their written submissions referred to above. Interestingly, Mr Dickson submitted that real estate or land was "personal estate" of a deceased person for the purposes of Section 19 of the Frauds & Limitations Act. He argued "personal estate" "refers to the personal property or estate of a deceased person, anything that is owned by the person who is deceased." Mr Dickson did not raise any statutory provision or case law as authority to support this proposition. It was his submission that the cause of action accrued on the death of Amon in the year 1993 and the writ of summons was filed in the year 2011 which is eighteen years after the cause of action accrued and reliance on section 19 providing a time limitation of twelve years was of no benefit to the Balats. For the Balats Mr Dawidi confirmed that his client Winston Balat did not file an affidavit specifically refuting Nodepa and Tsang's argument that the contract for sale and transfer instrument were signed by Wilson Balat on behalf of his father Amon who was already deceased at that time.   

Decision of the National Court on the two applications

71.	I have not had the benefit of a written decision of the learned primary judge. I rely on the transcript of proceedings of the court on delivery of the judgment of the court by the learned trial judge on 7 September 2012 which is found at pages 176 to 181 in the Review Book filed 24 October 2017.

72.	In dealing with the two motions, the learned primary judge determined liability in favour of the Respondents, issued consequential orders and entered judgement for damages to be assessed. The learned primary judge refused the application by Nodepa and Tsang to dismiss the proceedings for being statute barred and granted the Balats’ application for summary judgment on finding Nodepa and Tsang had no defence to the claims of the Balats. 

73.	In the learned primary judge's discussion, His Honour adopted what the Supreme Court said in Oil Search Limited v Mineral Resources Development Corporation Limited (2010) SC1022 that a proper determination of whether an action involving alleged breaches of contractual obligations is time barred entails a finding on three matters namely (1) identification of the cause of action; (b) identification of the date on which the cause of action occurred or accrued; (c) categorisation of the cause of action according to whether it is founded on simple contract or an action upon a specialty. With respect, it then gets confusing but the learned primary judge then says at line 13 on page 4 of the transcript "In my view, the cause of action is not founded on contract or torts or causes of action of similar nature." and then from line 30 of page 4 His Honor proceeded to discuss the various issues together before concluding to refuse the application to dismiss the proceedings as being time-barred and His Honour granted summary judgment.  I set out in full that discussion:

o	As can be seen, until probate or letters of administration are granted a deceased estate is initially vested in the Pubic Curator.  This means in my view that no one can or should deal with the estate of a deceased person who dies intestate until the Public Curator obtains the necessary probate or letters of administration.

o	There is evidence that the deceased died intestate.  There is also evidence that no probate or letters of administration was granted to the Public Curator.  There is evidence that the transfer was or may have been tainted with fraud.  It follows that the cause of action in this case was preserved by section 19 of the Act.  The time period under section 19 is 12 years.  The deceased died on 4 March 1997.  Pursuant to section 44 of the Wills, Probate and Administration Act the personal estate of the deceased Amon Balat vested on the Public Curator.  The Public Curator did not exercise his functions or duties over the property.  Until letters of administration or probate is granted the property still vests in the Public Curator thus the purported transfer was unlawful and void ab initio.  That being the case the purported transfer in 2004 is seriously questionable particularly in the light of the evidence that one of the plaintiffs did not transfer the instrument.  The court should not condone what appears to be on the face of the evidence an unlawful and fraudulent transfer.

o	When did the cause of action occur?  As to this issue the plaintiffs submit that the cause of action arose following the entry of transfer of the land on 13 April 2004.  The plaintiffs had 12 years from that point to do the claim to the estate of late Amon Balat pursuant to section 19(1) of the act.

o	The defendant submits that the cause of action occurred in 1998.  I conclude that the cause of action arose on 17 April 2004 when the purported transfer was effected and entered on Title Deed by the Registrar of Titles.  The rationale behind this conclusion is that, the defendant did not acquire early purported legal interest on the property until the transfer was formally entered in the Title of Deed.  It follows therefore, that the cause of action was preserved by section 19 of the Act and was not time barred.  Was this as simple contract or a speciality?  As to this issue it is not a simple, safe straight forward answer as the Supreme Court said in Oil Search Limited –v- Mineral Resource Development Corporation Limited.

o	The issue of whether an action is upon a speciality is not at all straight forward.  There is no definition of speciality in the Frauds and Limitations Act or the Interpretation Act or any other written law. Davani J found in the National Court in Bank of South Pacific –v- Leahy, 2002 N2263 that the guarantee was a speciality because of its nature and form, it being the form of a deed but that appears to be the only PNG case that has touched on this issue.  And the issue was not addressed in detail and thus, as in the present case, it is evidence that the National Court did not have the benefit of extensive argument on the point.  

o	It is really a question of statutory interpretation of an old term specialty but it raises questions of law that require thorough consideration as it may have significant practical implications for claims made in the commercial law context.  In the present case, it is clear to my mind that a present cause of action is not founded on simply contract or on a founded speciality.  The proceedings are to preserve the estate of the late Amon Balat and to deal with his estate including the property that is, lot 20 section 15, Kavieng, New Ireland Province according to law.  It is clear from the evidence and the reasons I have set out earlier that the defendant did not acquire the said property.

o	The process required by law was not followed.  It follows that the purported acquisition of the property by the defendant is a nullity.  It is void ab initio.  Accordingly I will dismiss the application by the defendants and grant the orders sought by the plaintiffs in their notice of motion.  Mr Dawidi, again there are some typographic errors, I will correct.  Once I correct it, I will give it to you.  The decision will be given to counsel.  All right, yes, I am sorry, I did not acknowledge your appearance but your present is acknowledged counsel.  Once they are corrected, I will send your copy.

74.	The primary judge then issued declarations that the transfer of title to the property was "fraudulent", was "illegal and contrary to provision of section 44 of Wills Probate and Administration Act, as the transferor had no authority to transfer the property of a deceased person", and was "null and void and of no effect". Further, the primary judge declared the registered proprietor of the property is Amot Balat. In pursuance of that declaration, the primary judge ordered the Registrar of Titles shall within 21 days after service of this Order upon him or his delegate, amend the register and all copies of the State Lease for the property naming Amon Balat as the owner of the land herein. The primary judge also ordered Nodepa and Tsang and all their families, agents, servants and all other associates, shall vacate the property within 21 days of the orders served on them and shall give up peaceful possession of the land to Bawan Balat and Winston Balat and shall not enter upon the land anytime thereafter and interfere in any way with the Bawan Balat and Winston Balat' enjoyment of the land. In furtherance of these orders, the primary judge also ordered the Police are authorised to take such reasonable steps as are necessary to effect these declarations and orders. Finally, the primary judge entered judgment against Nodepa and Tsang with damages to be assessed.

75.	On 8 February 2013, the Registrar of Titles complied with the Court Order of the learned primary judge and transferred the title to the land to Amon.

Findings
 
76.	I make the following findings. Firstly, I find the principal claim by the Balats was based primarily on an allegation of fraud. I have discussed the Balats Amended Statement of Claim in detail. Amon was the registered owner of the property. In 1989, Amon entered into discussions and possibly an agreement to sell the property to Tsang at a price of K40,000. Amon passed away on 4 March 1993. The Balats claim the transfer of title was not executed lawfully by Amon personally signing the contract and transfer instrument. The Balats also claim those documents were not signed by a lawful representative of Amon. The transfer of title from Amon to Nodepa was registered in the year 2003 a period of ten years after Amon died. That is clearly a claim of fraud on the part of the Balats. 

77.	Having found the principal claim by the Balats was based on an allegation of fraud, I must now determine whether summary judgment was a procedure available to the Balats pursuant to Order 12 Rule 37(b) of the National Court Rules which provides the procedure of summary disposal applies to all proceedings except proceedings which include a claim by the plaintiff based on an allegation of fraud. Rule 37 is followed by Rule 38 which provides for summary judgment which is what the Balats sought and were granted by the learned primary judge. The Supreme Court in Kappo No. 5 Pty Ltd v Wong [1997] PGSC 3, SC 520 said Rule 37 “clearly states that where there is a claim based on fraud, summary procedure is not applicable. It is clearly intended that such allegations must be dealt with at the substantive trial. We find that the trial judge made no reference to this Rule in his judgment. If his attention was drawn to the Rule, he may not have entered judgment against the appellants. We find that the trial judge erred in this regard.”. The learned primary judge in this matter erred when he granted summary judgment for the Balats which is not permitted by Order 12 Rule 37(b).

78.	Were the claims by the Balats statute-barred pursuant to various provisions of the Frauds & Limitations Act referred to by the Nodepa and Tsang and by the Balats including sections 16(1), 16(3) and 19. 

79.	In calculating time, I must first determine when the cause of action accrued. In the leading text by Peter Hammond, Limitations of Actions - The Laws of Australia 2nd Edition, 2007 the learned author says:

“The term “cause of action” is not defined in the Limitations Acts. “Action” however, is defined. A cause of action is “simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. More precisely, a cause of action is constituted by “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to a judgment of the Court.”  

The requirements of a cause of action vary according to the kind of case in issue and are a matter for the general law. In some instances, the Limitations Acts determine when a cause of action arises. In other instances, it is left to be determined by the common law. The general rule is that a cause of action accrues at the time when, first, the necessary facts occur, and, second, there exists a competent plaintiff who can sue and a competent defendant who can be sued.”           

80.	The Supreme Court in Mamun Investment Limited and Nixon Koi v Onda Koim and others (2015) SC1409, the date the plaintiffs’ cause of action accrued at the latest was the registration date of the transfer of title. In the matter now under review, the learned primary judge found that to be the date the Balats cause of action accrued and that date was 13 April 2004 being the date of entry of the transfer on title.          

81.	Section 16(1) provides an action that is founded on tort shall not be brought after expiration of six years commencing on the date on which the cause of action accrued. The principal claim of the Balats was based on an allegation of fraud and that is a “tort”. By a strict reading of section 16(1), the Balats had six years from 13 April 2004 and that period expired on 13 April 2010. The writ was filed on 25 February 2011, a date after expiry of the six years period.      

82.	The learned primary judge correctly found the Balats cause of action was not founded on simple contract or on a founded specialty. Section 16(3) states an action upon a specialty is shall not be brought after the expiration of twelve years commencing on the date when the cause of action accrued. As noted by the Learned primary judge, the term “specialty” is not defined in the Frauds and Limitations Act. Hammond at page 91 in Limitations of Actions - The Laws of Australia states “Although specialty may denote any contract under seal, it is usually used to mean a specialty debt, that is, an obligation under seal securing a debt or debt due from the Crown or under statute. In this sense a specialty includes a bond, a contract under seal and a covenant. … An action on a specialty refers only to actions to enforce obligations created or secured by a specialty, and does not include an action to enforce an obligation merely acknowledged or evidenced by an instrument under seal. However, it includes not only actions for specific performance of the debt or other obligation created by the specialty but also actions for damages for breach of that obligation” As I have stated above, the Balats primary claim was an allegation of fraud which is a cause of action in tort and not an action upon a “specialty” within the meaning of section 16(3) and as defined here.     

83.	Section 19 provides no action in respect of any claim to the personal estate or to a share or interest in the personal estate of a deceased person shall be brought after the expiration of twelve years commencing on the date when the right to receive the personal estate or the share or interest in the personal estate accrued. The term “personal estate” is not defined in the Frauds and Limitations Act and neither did the learned primary attempt to define that phrase. The learned primary judge said the Balats “proceedings are to preserve the estate of the Late Amon Balat and to deal with his estate including the property that is lot 20 section 15 Kavieng, New Ireland Province according to law.”  The learned primary judge also said the Balats had 12 years from 17 April 2004 to “do the claim to the estate of late Amon Balat pursuant to section 19(1) of the Act”. The learned primary judge relied on section 19(1).

84.	As I said above, it was interesting to note that counsel for Nodepa and Tsang submitted that real estate or land was "personal estate" of a deceased person for the purposes of Section 19 of the Frauds & Limitations Act. He argued "personal estate" "refers to the personal property or estate of a deceased person, anything that is owned by the person who is deceased." Mr Dickson did not raise any statutory provision or case law as authority to support this proposition. It was his submission that the cause of action accrued on the death of Amon in the year 1993 and the writ of summons was filed in the year 2011 which is eighteen years after the cause of action accrued and reliance on section 19 providing a time limitation of twelve years was of no benefit to the Balats. That was clearly an error on the part of counsel for Nodepa and Tsang.

85.	I have found the Balats cause of action accrued on 13 April 2004 being the date of entry of the transfer on title. Twelve years from that date expired on 13 April 2016. The writ was filed on 25 February 2011, a date of over five years prior to the date of expiry of the limitation period twelve years. I am satisfied that the learned primary judge did not err.     

Factors relevant - exercise of discretionary power of review pursuant to section 155(2)(b) 
  
86.	I will now discuss the factors relevant to the exercise of discretionary power of review pursuant to section 155(2)(b). I am on the view that I must firstly take into consideration the merits of the claims and defence raised by the parties in the trial court and the conduct of the parties in the trial court proceeding, secondly matters that have occurred following the decision of the learned primary judge and the proceedings and thirdly the conduct of the parties in the Supreme Court in the two review proceedings.  

87.	I have discussed the respective pleadings of the parties and their conduct in the National Court proceedings. I note Nodepa and Tsang failed to respond to the primary claim of fraud. The claim was clearly stated with full particulars. Nodepa and Tsang failed to specifically refute the claim that the contract for sale and transfer instrument were not signed by the lawful representative of the deceased Amon. Section 2(1) provides no interest in land can be disposed of except by writing signed by the person disposing of the interest or that persons agent lawfully authorised in writing for that purpose. Nodepa and Tsang failed to state who signed the contract and transfer on 26 March 1999 on behalf of the deceased Amon who had died six years prior to that on 4 March 1993. At the hearing of the two interlocutory applications before the learned primary judge, Nodepa and Tsang failed to file sworn affidavits as to the all the critical and pertinent facts and relied on a sworn affidavit of their lawyer. My only conclusion was that they Tsang and the lawful representative of Nodepa were avoiding being held personally liable for any false statements as to these matters. These are fundamental facts which are significant to my consideration against the exercise my discretionary power of review.  

88.	On 8 February 2013, the Registrar of Titles complied with the Court Order of the learned primary judge and transferred the title to the land to Amon. The registration of the fraudulent transfer instrument was lawfully corrected and title correctly returned to Amon. The Register of Titles should not be disturbed. 

89.	Being aggrieved with the decision of the learned primary judge, Nodepa and Tsang failed to file an appeal within 40 days of the date of the decision of the learned primary judge. In the application for leave to review, Nodepa and Tsang state at paragraph 4(f), the application “was made out of time due to the reasons as follows: (i) A lawyer of the Applicants’ previous lawyers who was in carriage of the Applicants’ matter did make a file note regarding Summary Judgment to inform his Law Firm before resigning from the Law Firm on 20 September 2012. (ii) As a result to (i) above, the Applicants previous Lawyers were not aware of the Summary Judgment and did not file an appeal within the 40 days’ time period allowed by the Supreme Court Act. (iii) Further to (i) & (ii) above, the National Court file for WS No. 113 of 2011 went missing or misplaced in the National Court Registry and was located in February 2013. (iii) The Applicant Lawyer did search with the National Court Registry on 29 October 2012, 6 December 2012 and 13 February 2013 but could not locate the Court file. (iv)The Applicants Lawyer also wrote to the National Court Registry regarding the Missing or misplace court file on 6 December 2012 and in February 2013 and thereafter the file was located. (v) The Applicants Lawyers were informed of the decision on 20 September 2012 by Respondents Lawyers letter dated 7 February 2013.”    

90.	At paragraphs (g) and (h), Nodepa and Tsang refer to the Supreme Court granting them leave on 26 October 2016 to withdraw their incompetent application for review SCR 28 of 2013 and granting them liberty to file an application for leave to review but their lawyers still failed them. At paragraph 4(g), they say: (i) The Applicants previous lawyer were instructed by the applicant to file Application for eave to Review but did not file on reasons only known to them. (ii) The Applicants previous lawyers did not contact the Applicant with regard to the Application since 26 October 2016. (iii) The Applicants in June 2017 changed their lawyers from its previous Lawyers to their current Lawyers, Ashurst PNG. (iv) A factor involved in the change in (iii) above is the transfer of files from previous to current Lawyers.”  These are fundamental facts which are significant to my consideration against the exercise my discretionary power of review.

91.	In conclusion, I am satisfied the learned primary judge did not err in his decision of 20 September 2012. Further, I am not persuaded to exercise my discretionary power of review requested by Nodepa and Tsang.   

ORDER

92.	The formal orders of the Court by majority judgment are:

1.	The applicants’ application for review is upheld.
2.	The decision of the National Court of 20 September 2012 is quashed and set aside.
3.	The National Court proceedings WS 113 of 2011 are dismissed.
4.	The respondents shall pay the applicants’ costs of the application for review and the National Court proceedings.   
________________________________________________________________
Ashurst: Lawyers for the Applicants	
Murray & Associates:  Lawyers for the Respondents