Maip Pty Ltd v Ambra Coffee Estates Pty Ltd

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 29 September 1995
• Citation: [1995] PNGLR 25
• Court: National Court
• Year: 1995
• Judgement Number: N1368

National Court: Woods J

Judgment Delivered: 29 September 1995

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MAIP PTY LTD

V

AMBRA COFFEE ESTATES PTY LTD

Mount Hagen

Woods J

3 August 1995

29 September 1995

EQUITY — Tender for purchase of property — Tender accepted — No contract prepared — Delay in submitting requirements for contract — Occupation pending contract — Whether constructive trust.

EQUITY — Claim in equity — Nature of equitable estoppel — Laches.

EQUITY — Unjust enrichment — Limits to claim.

REAL PROPERTY — Occupation pending sale of property — Tenancy at will — Nature of.

Facts

The registered proprietor of property mortgaged it to a bank to secure a loan. On default, the bank advertised the property for sale by public tender. The plaintiff was the successful applicant and was required by the bank to act within 14 days in meeting a number of requirements, including payment of deposit, supplying the name in which the purchase was to proceed etc. It was also provided that the mortgagor may redeem up to the date of execution of the contract of sale.

The plaintiff paid the deposit and arranged the funding of the balance. It went into possession but was, however, subsequently advised that the mortgagor had exercised the right of redemption and the tender offer was withdrawn.

Held

1. There was no contract for sale but merely a tender and offer, which was accepted subject to some unfulfilled requirements.

2. The plaintiff could not be accorded equitable rights based on its occupation and improvement of the property, as there was no agreement for these.

3. The plaintiff was guilty of undue delay in meeting the requirements set out in the offer, and a plaintiff seeking equity must not be guilty of laches.

Cases Cited

Papua New Guinea cases cited

McCosker v Kuster [1967-68] PNGLR 182.

Ningiga v Koavea [1988-89] PNGLR 312.

Re Luabar Logging Pty Ltd [1988] PNGLR 124.

Other cases cited

Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582; 64 ALJ 536.

Waltons Stores Ltd v Maher (1988) 164 CLR 387; 62 ALJR 110; 76 ALR 513.

Counsel

D L O'Connor, for the plaintiff.

P M Dowa, for the defendant.

29 September 1995

WOODS J: The plaintiff is claiming certain rights to a property, namely portion 870, Mt Ambra, being an agricultural lease registered vol 62 folio 219 and being a coffee plantation. The plaintiff is claiming rights as the successful tenderer for the property following an advertised mortgage sale, and an implied authority to enter into possession pending completion of the purchase.

The evidence is as follows: The registered proprietor of the property according to the title deed is Totou No 36 Pty Ltd. Totou No 36 has changed its name to Ambra Coffee Estates Pty Ltd. However, that change of name has not been noted on the title due to there being no transfer requiring such notification.

Ambra Coffee Estates mortgaged the property to the Papua New Guinea Banking Corpn (PNGBC), and that mortgage is noted on the registered title. There appears to have been default under the mortgage, and the bank in 1992 advertised the property for sale by public tender.

The plaintiff was the successful applicant following this advertisement. On 14 December 1992, the bank advised the plaintiff by letter that it accepted the plaintiff's tender and required the plaintiff to act within 14 days in meeting the following requirements:

1. deposit of 10% (K9,000) is payable now;

2. confirmation/evidence of ability to meet the balance of purchase price;

3. name in which purchase is to proceed, and

4. name of solicitor acting on the plaintiff's behalf.

The bank also advised as follows: "Also note that the Bank reserves the right to allow the mortgagor right to redemption up to the date of execution of contracts between yourself and the mortgagee" (bank).

On 4 January 1993, the plaintiff, by letter under the letterhead of Gena Coffee Pty Ltd, thanked the bank for approving its application, forwarded the deposit of 10%, and advised that "we are under the process of arranging cash flow to be submitted to our bank for complete funding of our proposal. Although the plantation was a complete right [sic] off we are taking necessary steps to prevent it from further deterioration and vandalism. Obviously we are left with no option but to bear the costs ourselves."

On 24 February 1993, the Agriculture Bank wrote to the PNGBC advising that the plaintiff was a client of theirs and that the plaintiff had "held discussions with us about funding the balance of the tender offer and we have requested them to submit loan proposal for our consideration".

The next development over this tender was a letter from the PNGBC to the plaintiff advising that the directors of the defendant company had presented themselves at the bank...