Papua New Guinea Harbours Board v Hargy Oil Palms Pty Ltd

• Jurisdiction: Papua New Guinea
• Judge: Sawong J
• Judgment Date: 12 December 1995
• Citation: (1995) N1384
• Court: National Court
• Year: 1995
• Judgement Number: N1384

National Court: Sawong J

Judgment Delivered: 12 December 1995

N1384

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 86 OF 1995

PAPUA NEW GUINEA HARBOURS BOARD

v

HARGY OIL PALMS PTY LTD

Waigani

Sawong J

5 May 1995

12 December 1995

PRACTICE & PROCEDURE — Entry of summary Judgment — Recovery of rent due under a lease

LANDLORD AND TENANT — Agreement for lease.

APPROVAL OF MINISTER REQUIRED — Effect of lack of approval — Possession given and taken — whether rent recoverable — Land Act (Ch 185).

LANDLORD AND TENANT — Agreement for lease — Lease not registered — Effect of lack of registration — possession given and taken.

LANDLORD AND TENANT — Application for Summary Judgment for unpaid rent — whether non approval by Minister and or non registration of lease amount to serious questions law for consideration.

Cases Cited:

The following cases are cited in the judgment:

Luabar Logging Pty Ltd [1988] PNGLR 124

Ningiga v Koavea [1988-89] PNGLR 312

Wal Wine v Bill Giglma [1990] PNGLR 462

Danny Jabos v Kasper Kwaidu, Unreported Judgment N1051 of 1991

12 December 1995

SAWONG J: The decision on this matter was to have been handed down on 19th May 1995, but on 18th May 1995 both counsel advised the Court to delay handing down a decision, as both parties were entering into negotiations to settle the matter.

It appears from recent correspondence to my associate that the matter has not been amicably resolved, and the parties hae requested that the Court hand down its decision.

By a Notice of Motion, the Plaintiff claimed the following orders:

"A. An Order directing the entry of Judgment for the Plaintiff in these proceedings pursuant to Order 12 Rule 38;

B. Costs;

C. And such further Orders as the Court thinks fit."

In support of its relief, an affidavit deposed to by one Steven Tupa was filed. Mr Tupa is the Acting Director, Finance and Administration of the Plaintiff.

Mr Tupa deposed that there was in existence between the parties, a Lease Agreement. The lease was dated 21 March, 1990 and it was for a term of 15 years commencing on 1 July 1990.

He further deposed that, under the terms of the lease, the Defendant as lessee, agreed to pay to the Plaintiff an annual rent of K520,772.00 payable by equal quarterly payments. He further deposed that the Defendant had not paid any of rentals for the period 1991 to 1994 inclusive and there was therefore due to the Plaintiff an amount of K1,683,088.00.

He further deposed that, under the term of the lease agreement it was agreed between the parties that the Defendant would pay interest at the rate of 15% per annum on overdue monies. The amount of interest due, for the same period referred to above, amounted to a sum of K252,463.00.

Before I deal with the application for entry of summary judgment, I wish to deal with a preliminary point of law raised by the defendant. Mr Anderson for the Defendant has raised the point that as the Lease Agreement was neither approved by the Minister under s. 69 of the Land Act, (Ch 185) nor was it registered under s. 49 (1)...of the Land Registration Act, it was not enforceable against the Defendant.

Firstly, in relation to the argument that the lease is unenforceable because it has not been approved under s. 69 of the Land Act, I say this. There is no doubt that a lease agreement exists between the parties. This was not challenged by the Defendant. The only challenge by the Defendants to a summary judgment being entered against it, is that, that the Lease Agreement was not approved by the Minister for Lands under s. 69 of the Land Act (Ch 185) and or that the agreement was not registered pursuant to s. 49 (1) of the Land Registration Act. If I understood Mr Anderson's argument correctly, it is as follows. He submitted that the lease is void and of no effect and thus a debt created under it (i.e. under the Lease Agreement) cannot be recovered because of non compliance with s. 69 of the Land Act (Ch 185). In the alternative he says, that the lease is also void because the agreement has not been registered under s. 49 (1) of the Land Registration Act, and accordingly any debt created under the agreemnt cannot be recovered.

Section 69 of the Land Act (Ch 185) has been judicially considered in this jurisdiction. See Luaba Logging Pty Ltd [1988] PNGLR 124; Ningiga v Koavea [1988-89] PNGLR 312; Wal Wine v Bill Giglma [1990] PNGLR 462; Danny Jabos v Kasper Kwaindu (Unreported Judgment) N1051 of 1991. In Re Luabar...