Koitachi Limited v Walter Schnaubelt and Johnson Zhang and SJS Enterprises Limited and Raga Kavana, Register of Titles (2007) SC870

• Jurisdiction: Papua New Guinea
• Judge: Gavara–Nanu, J, Mogish, J, Hartshorn, J
• Judgment Date: 11 September 2007
• Court: Supreme Court
• Docket Number: SCM 18 OF 2005
• Judgement Number: SC870

Full Title: SCM 18 OF 2005; Koitachi Limited v Walter Schnaubelt and Johnson Zhang and SJS Enterprises Limited and Raga Kavana, Register of Titles (2007) SC870

Supreme Court: Gavara-Nanu, J, Mogish, J, Hartshorn, J

Judgment Delivered: 11 September 2007

SC870

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM 18 OF 2005

BETWEEN:

KOITACHI LIMITED

Appellant

AND:

WALTER SCHNAUBELT

First Respondent

AND:

JOHNSON ZHANG

Second Respondent

AND:

SJS ENTERPRISES LIMITED

Third Respondent

AND

RAGA KAVANA, REGISTER OF TITLES

Fourth Respondent

Waigani: Gavara-Nanu, J., Mogish, J., and Hartshorn, J.

2007: 28 February,

11 September

PRACTICE AND PROCEDURE - fresh evidence - Supreme Court Act s.6(1) - Originating Summons - judicial review - application to amend statement - requirement to make application - National Court Rules O16 r 6(1)

REAL PROPERTY –s.33 (1) Land Registration Act - definition of “fraud” - indefeasibility of title

Case cited

Papua New Guinean cases

The Administration of the Territory of Papua New Guinea -v- Balius Tirupia and Others In Re. Vunapaladig and Japalik Land [1971- 72] PNGLR 229

John Peng v. The State [1982] PNGLR 331,

Mudge -v- Secretary for Lands [1985] PNGLR 387

MVIT v. James Pupune [1993] PNGLR 370,

MVIT v. John Etape [1994] PNGLR 596,

Nancy Tambe v. Linda Tamsen (2004) N 2714,

Roslyne Cecil Kusa -v- Motor Vehicles Insurance (PNG) Trust –N2328,

Steamships Trading Co Ltd v. Garamut Enterprises Ltd (2002) N1959,

The Papua Club Inc. v. Nusaum Holdings Ltd. (No.2) (2004) N 2603

Overseas Cases

Assets Company Ltd -v- Mere Roihi and Others [1905] AC 176,

Butler -v- Fairclough and Another (1917) 23 CLR 78,

Templeton -v- Leviatham Pty Ltd (1921) 30 CLR 34,

R. v. Medical Appeal Tribunal (North Midland Region) [1959] 2QB 408.

Friedman -v- Barret, Ex-parte Friedman [1962] QD.R 498,

Scruttons -v- Midland Cilicones Ltd [1962] 2 WLR 186 at 199,

Frazer -v- Walker [1967] 1 AC 569,

Breskvar -v- Wall (1971) 126 CLR 376,

Registrar of Titles (WA) –v- Franzon (1975)132 CLR 611

Tanzone Pty Ltd -v- Westpac Banking Corporation [1999] ATPR 46-195,

Conlan (as Liquidator of Oakleigh Acquisitions Pty Ltd) and Others -v- Registrar of Titles and Others (2001) 24 WAR 299,

Counsel

J. Nonggorr, for the Appellant

A. MacDonald, for the First Respondent

11 September, 2007

1. BY THE COURT: Introduction: Koitachi Ltd (Koitachi) and Mr. Walter Schnaubelt both contend that they purchased the property called Koitachi Haus from SJS Enterprises Ltd (SJS). SJS decided to proceed with the sale of the property to Koitachi. Mr. Schnaubelt lodged a caveat on the title to the property. The Registrar of Titles (Registrar) cancelled the caveat and registered the transfer of the property to Koitachi. Mr. Schnaubelt successfully applied to the National Court by way of judicial review for the registration of the transfer to Koitachi to be set aside and for his caveat to be reinstated. Koitachi appeals against that decision.

Fresh evidence

2. Koitachi applied to introduce fresh evidence under Order 6 (1)(a) Supreme Court Rules. This application was opposed by Mr. Schnaubelt. The appeal proceeded on the basis that the Court reserved its finding on the application. We now deliver our finding.

3. In an appeal to the Supreme Court, s. 6(1) of the Supreme Court Act allows fresh evidence to be called. Section 6(1) is as follows:

An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court—

(a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and

(b) to draw inferences of fact.

4. In John Peng v. The State [1982] PNGLR 331, the Supreme Court favourably referred to the definition of “fresh evidence” in R. v. Medical Appeal Tribunal (North Midland Region)[1959] 2QB 408. That definition was, “evidence which the claimant was unable to produce before the decision was given, or which he could not reasonably be expected to have produced in the circumstances of the case.”

5. As to, “justice of the case warrants it”, in Peng's case (supra) the Supreme Court was of the opinion that if, “the evidence is “fresh” in the accepted judicial interpretation; that it is relevant, credible, admissible according to the rules of evidence and by it a reasonable man would be given cause to doubt, then a proper case exists where the court can exercise its discretion to admit it.”.

6. In this instance, the evidence concerned the status of SJS. The evidence was available at the date of trial but not when the proceedings were commenced. Koitachi contends that it was not aware of the evidence at the date of the trial. In our view, regardless of whether this evidence is “fresh” we find that it is not relevant as it does not relate to the issues before the trial judge or the various grounds of appeal before this Court for determination. Accordingly the application to introduce fresh evidence by Koitachi is refused.

Grounds of Appeal

7. The Grounds of Appeal are:

(a) The trial judge erred in law in holding that the Registrar’s decision to cancel the caveat lodged on the property – Allotment 6, Section 56, Hohola (“the Property”) by Mr. Schnaubelt was not for good or valid reasons/grounds and that the Registrar wrongly cancelled the said caveat when this was not a matter raised in the pleadings and evidence led on it.

(b) The trial judge erred in law in holding that the Registrar acted wrongly in cancelling the caveat lodged by Mr. Schnaubelt in that there was no finding made that Mr. Schnaubelt had an estate or interest in the Property.

(c) The trial judge erred in law in setting aside the registration of the Transfer from SJS to Koitachi (“the Transfer”) in that the registration of the Transfer was effective since the registration occurred after the caveat had been cancelled as the cancellation was voidable.

(d) The trial judge erred in fact and law in holding that Koitachi’s actions were unfair, unreasonable, deliberately or highly irregular and tantamount to fraud as there was no evidence to support a finding of fraud against Koitachi.

(e) The trial judge erred in fact and law in holding that the Registrars actions were unfair, unreasonable, deliberately or highly irregular and tantamount to fraud as there was no evidence to support a finding of fraud against the Registrar.

(f) The trial judge erred in fact and law in setting aside the registration of the Transfer when there was no evidence of fraud to vitiate the registration.

(g) The trial judge erred in law in setting aside the registration of the Transfer after ruling that the doctrine of indefeasibility did not apply when the doctrine is applicable in the circumstances of the case.

(h) Consequent upon the grounds pleaded in paragraphs (a) and (b), above, the trial judge erred in law in quashing the decision of the Registrar cancelling the caveat lodged on the Property by Mr. Schnaubelt.

(i) Consequent upon the grounds pleaded in paragraphs (c) - (g), above, the trial judge erred in law in setting aside the registration of the Transfer.

(j) The trial judge's decision and order setting aside the registration of the Transfer is harsh and oppressive in the circumstances and is unfair and not equitable as Koitachi stands to suffer the most.

Ground (a)

8. Koitachi contends that the pleadings of Mr. Schnaubelt do not challenge the reasons or grounds given by the Registrar for cancelling the caveat and that Mr. Schnaubelt did not apply to amend his pleadings but merely made reference to the lack of pleadings.

9. Mr. Schnaubelt responds that this contention was raised in the ‘pleadings’ and it was the subject of evidence and submissions. Further, if it was not raised in the ‘pleadings’ Koitachi is bound by its actions in allowing the evidence and submissions without objection.

10. The original proceedings were commenced by Originating Summons so there are no pleadings. Pursuant to O 8 r 1 National Court Rules, pleadings only arise in actions commenced by Writ and not in any other originating process; Steamships Trading Co Ltd v. Garamut Enterprises Ltd (2002) N1959. In judicial review proceedings however, the Originating Summons must be supported by a statement, “setting out …, the relief sought and the grounds on which it is sought”; O 16 r 3(2) (a) and, “subject to sub-rule (2), no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement.”; O 16 r 6(1). O 16 r 6(2) provides for the court on the hearing of the summons to allow the applicant to amend his statement.

11. There is no ground in the statement of Mr. Schnaubelt questioning the reasons given by the Registrar for cancelling the caveat. The grounds concern the lack of notice but not the reasons given by the Registrar for cancellation. Mr. Schnaubelt submits that if the matter was not pleaded, Koitachi is bound by its actions in allowing the evidence and submissions without objection. For this proposition Mr. Schnaubelt relies upon the Supreme Court decisions of MVIT v. James Pupune [1993] PNGLR 370, and MVIT v. John Etape [1994] PNGLR 596. In Pupune (supra) the court said: “It is clear from the authorities we have referred to that if a party allows an issue which is not litigated to be litigated fairly, he cannot on appeal hark back to the pleadings and argue that the issue was not pleaded.” Pupune (supra) and Etape...