Ruth Don v Public Curator of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 13 September 2017
• Citation: (2017) N6869
• Court: National Court
• Year: 2017
• Judgement Number: N6869

Full : WS No 1194 of 2014; Ruth Don v Public Curator of Papua New Guinea and Alex Werner and Comfort Tours & Travel Limited and Registrar of Titles and the Independent State of Papua New Guinea (2017) N6869

National Court: Cannings J

Judgment Delivered: 13 September 2017

N6869

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

WS NO 1194 OF 2014

BETWEEN

RUTH DON

Plaintiff

AND

PUBLIC CURATOR OF PAPUA NEW GUINEA

First Defendant

AND

ALEX WERNER

Second Defendant

AND

COMFORT TOURS & TRAVEL LIMITED

Third Defendant

AND

REGISTRAR OF TITLES

Fourth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Madang: Cannings J

2016: 15 March, 20 May,

2017: 13 September

LAND – government land – residential property – State Lease – whether fraud involved in transfer of State Lease – meaning of “fraud” in Land Registration Act – actual fraud – constructive fraud.

LIMITATION PERIODS – Frauds and Limitations Act, Section 19 – whether claim of fraud by alleged de facto partner of deceased registered proprietor of State Lease is an action re personal estate of deceased person.

Facts

The third defendant became registered proprietor of a State Lease over a residential property in a town in the following circumstances: on the same day, 26 October 2010, that the lease was transmitted to the Public Curator (the first defendant) pursuant to letters of administration, the lease was transferred by the Public Curator to a person regarded as the deceased registered proprietor’s son (the second defendant), who transferred it to the third defendant. The original registered proprietor died in April 1996. The plaintiff claimed that she was his de facto wife and that he had left a will, leaving the property to her. Probate of that will had, however, never been obtained. The plaintiff commenced proceedings against the defendants in 2014, claiming that all transactions on 26 October 2010, in particular the transfer to the third defendant, were cases of fraud (both actual fraud and constructive fraud were pleaded) and should be declared null and void and cancelled. She also sought damages. A trial was conducted. The first defendants argued as a preliminary point that the proceedings should be summarily dismissed for being time-barred by Section 19 of the Frauds and Limitations Act. As to the substantive question of whether fraud was involved in transfer of the State Lease, they denied the allegation. The fourth and fifth defendants (the Registrar of Titles and the State) took no part in the trial.

Held:

(1) As to the preliminary issue: Section 19 of the Claims By and Against the State Act did not apply as the plaintiff’s primary cause of action was fraud in relation to the transactions of 26 October 2010, rather than a claim to the personal estate or to any share or interest in the personal estate of the deceased person. The preliminary argument failed.

(2) Under Papua New Guinea’s Torrens Title system of land registration the general principle is that once the transfer of a State Lease is registered, an indefeasible title is conferred on the registered proprietor, subject only to the exceptions in Section 33(1) (protection of registered proprietor) of the Land Registration Act, including Section 33(1)(a), which states: “The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except … in the case of fraud”.

(3) “Fraud” means actual fraud or constructive fraud (where it is proven that the circumstances in which a person has obtained title are so unsatisfactory, irregular and unlawful as to warrant the setting aside of title).

(4) Here, the plaintiff failed to prove actual fraud. She also failed to prove constructive fraud as there was insufficient evidence to show that the circumstances in which the transfers of the State Lease took place on 26 October 2010 were unsatisfactory, irregular or unlawful, given that: the plaintiff had not in the period of 14 years after the death of her alleged de facto husband obtained probate of the purported will on which she based her claim to an interest in the property; the order of the National Court of 12 August 2010 granting letters of administration to the Public Curator was never set aside; the decision of the Public Curator to regard the second defendant as the son and primary beneficiary of the deceased estate was unremarkable; it was open to the second defendant to transfer his interest in the property (to sell it) to whoever he wanted at whatever price he wanted; and there was no credible evidence of any impropriety on the part of any of the defendants, including the third defendant.

(5) All relief sought by the plaintiff was refused and the proceedings were dismissed. All interim orders were dissolved. The plaintiff was given one month to vacate the property. The plaintiff was ordered to pay the third defendant’s costs.

Cases cited:

The following cases are cited in the judgment:

Emas Estate Development Pty Ltd v John Mea & Ors [1993] PNGLR 215

Eric Kiso v Bennie Otoa & Ken Wutnalom (2013) SC1222

Julius Pololi v Bryan James Wyborn (2013) N5253

Koitachi Ltd v Walter Schnaubelt (2007) SC870

Kol Toki v Moeka Morea (2016) SC1588

Konze Kara v Public Curator (2010) N4055

Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120

Mudge v Secretary for Lands [1985] PNGLR 387

PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126

STATEMENT OF CLAIM

This was a trial in which the plaintiff sought declarations and orders regarding a State Lease, the registered proprietor of which was the third defendant.

Counsel:

G Pipike, for the plaintiff

M Koimo, for the First Defendant

E Wurr, for the Second Defendant

H Masiria, for the Third Defendant

13th September, 2017

1. CANNINGS J: This case is about a residential property in Madang town, Section 26, Allotment 20, Bougainvillea Drive, near Binnen Harbour. The plaintiff, Ruth Don, has occupied the property for more than 20 years.

2. Until 26 October 2010 the registered proprietor of the State Lease over the property was Jan Werner, who died in April 1996. The plaintiff claims that she was the late Mr Werner’s de facto wife. She also claims that he made a will and left the property to her. She has, however, never obtained probate on that purported will.

3. On 26 October 2010 the Registrar of Titles (the fourth defendant) registered a number of transactions regarding the property:

· first, the Registrar of Titles transmitted the State Lease to the Public Curator (the first defendant) pursuant to letters of administration (a court order authorising a person to administer the estate of a deceased person who has died intestate (without leaving a will)) granted by the National Court in proceedings described as WPA No 61 of 2010 on 12 August 2010;

· secondly the Public Curator transferred the State Lease to the person who he regarded as the son of the late Mr Werner and the primary beneficiary of the deceased estate, Alex Werner (the second defendant);

· thirdly Alex Werner transferred the State Lease (in effect selling the property) to Comfort Tours & Travel Ltd (the third defendant), which is the current registered proprietor.

4. The plaintiff alleges that those transactions are fraudulent. She commenced proceedings against the defendants in 2014, seeking declarations that all the transactions, in particular the transfer to the third defendant, are null and void, and orders that the transactions be cancelled, on the ground of fraud. She also seeks damages.

5. She says that she has been thwarted by the Public Curator over many years in proving the will and obtaining probate. She says that letters of administration granted in August 2010 by the National Court to the Public Curator (giving the Public Curator authority to administer the estate of the late Mr Jan Werner) were a result of fraudulent and false documents being put to the Court and collusion between the defendants. She says that the second defendant, Alex Werner, has falsely and fraudulently held himself out as being the son of the deceased Jan Werner.

6. The first, second and third defendants have filed defences, denying all allegations of fraud. The fourth defendant (the Registrar of Titles) and the fifth defendant (the State) did not file defences and have played no part in the proceedings.

7. A trial was conducted. It was argued as a preliminary point that the proceedings should be summarily dismissed for being time-barred by Section 19 of the Frauds and Limitations Act. The following issues arise:

1 Should the proceedings be summarily dismissed?

2 Are the circumstances in which Comfort Tours and Travel Ltd became registered proprietor a case of fraud?

3 What declarations or orders should the Court make?

1 SHOULD THE PROCEEDINGS BE SUMMARILY DISMISSED?

8. The defendants submitted that the proceedings are time-barred by Section 19(1) (actions claiming personal estate of a deceased person, etc) of the Frauds and Limitations Act, which states:

(1) No action in respect of any claim—

(a) to the personal estate; or

(b) to any share or interest in...