The Public Curator as Administrator of the State of the Late Geno Iari and Paul Wagun and David Mea Lcb Holdings Limited v Bank of South Pacific Limited (2006) SC832

• Jurisdiction: Papua New Guinea
• Judge: Los J, Sevua J and Lay J
• Judgment Date: 11 July 2006
• Court: National Court
• Citation: (2006) SC832
• Docket Number: SCA NO. 17 OF 2003
• Year: 2006
• Judgement Number: SC832

Full Title: SCA NO. 17 OF 2003; The Public Curator as Administrator of the State of the Late Geno Iari and Paul Wagun and David Mea Lcb Holdings Limited v Bank of South Pacific Limited (2006) SC832

National Court: Los J, Sevua J and Lay J

Judgment Delivered: 11 July 2006

SC832

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 17 OF 2003

BETWEEN

THE PUBLIC CURATOR AS ADMINISTRATOR OF THE STATE OF THE LATE GENO IARI

First Appellant

PAUL WAGUN

Second Appellant

DAVID MEA

Third Appellant

LCB HOLDINGS LIMITED

Fourth Appellant

BANK OF SOUTH PACIFIC LIMITED

Respondent

Los J, Sevua J and Lay J

PORT MORESBY

3 November 2005

PRACTICE AND PROCEDURE-estate of deceased represented by administrator-effect on representation of estate in appeal by change of administrator-Wills Probate and Administration Act s36,44 & 45-appellant dilatory in prosecution of appeal-no explanation for delay-appeal dismissed-Supreme Court Rules O7 r12 & O7 r53(a)-orders for costs-Supreme Court Act s8(e), Supreme Court Rules O7 r19-22.

Facts

The Appellants filed a Notice of Appeal and Application for Leave to Appeal on 27th February 2003 which were served on the Respondent on 14th March 2003. On 12th August 2004 the National Court ordered that the administration of the estate of the late Geno Iari by the Public Curator be terminated and John Beattie was appointed administrator. On 19th October 2004 the Appellants served the Respondent with a draft index to the appeal book which was filed in the Registry on 22 November 2004. On 5th April 2005 the First Appellant represented by John Beattie abandoned the appeal. On 12th August 2005 the Third and Fourth Appellants abandoned the appeal.

The Second appellant applied for an order that the discontinuance abandoning the appeal filed by John Beattie be struck out on the basis that he was not the First Appellant. The Respondent applied to have the appeal dismissed for want of prosecution.

Held

1.The First Appellant was the Estate of the late Geno Iari, not the Public Curator. The removal of the Public Curator and appointment of John Beattie as administrator by order of the National Court and pursuant to Wills Probate and Administration Act s45, had the effect of terminating the Public Curator’s power to represent the estate in the appeal. John Beattie then represented the estate and had power to abandon the appeal on behalf of the estate. Therefore, although it would have been desirable for John Beatie to have applied to be substituted, for the record, the appeal was abandoned by the estate when John Beattie filed the Notice of Discontinuance, which would therefore not be struck out. Since the Third and Fourth Appellants abandoned the appeal on 12th August 2005 the Second Appellant was the only appellant prosecuting the appeal.

2.The delay of 14 days in serving the Notice of Appeal and Application for Leave to Appeal was inordinate when the Respondent’s lawyers were well known and located in the same town as the Registry and the Appellants. The delay of 18 months between filing the appeal and the draft index was inordinate. There was no explanation for either delay. The appeal was struck out pursuant to O7 r53(a).

3.Costs follow the event. The Respondent is entitled pursuant to Supreme Court Rules O7 r21 to costs, from the Appellants who abandoned the appeal. An Appellant is not liable for costs incurred after the day his notice of discontinuance was served on the Respondent’s lawyers.

4.The Court has power to order taxed costs pursuant to Supreme Court Act s8(e) and National Court Rules O22. The Appellants are to pay the taxed costs of the Respondent, an Appellant shall not be liable for costs incurred after notice of abandonment of the appeal by that Appellant was served on the Respondent’s lawyers.

Cases Cited

Burns Philp (New Guinea) Limited v George [1983] PNGLR 55; SC484 Yema Gaiapa Developes Limitedv Hardy Lee; SC530 Attorney-General, Minister for Justice and the State v Papua New Guinea Law Society; SC691 Donigi v PNGBC; SC667 Bernard Juali v The State; SC537 Joe Chan and PNG Arts Pty Ltd v Mathias Yambunpe; SC762 Dan Kakaraya v Michael Somare, Koiari Tarata and Francis Kaupa; General Accident Fire and Life Assurance v Ilimo Farm [1990] PNGLR 331; Don Polye v Jimson Sauk Papaka & Anor SC651

Appearances

K.Kokiva for the Second Appellant

D. Wood for the Respondent

BY the court: There are two applications before the Court. The Appellant seeks the following orders:

1 that the Notice of Discontinuance filed by John Beattie on 5th April 2005 be struck out as John Beattie is not the First Appellant and it is an abuse of the court process under O7 r19 of the Supreme Court Rules;

2 that the Respondent file and serve on the Appellants within 14 days a sealed copy of the court order of 20 January 2003 in the proceedings O.S. No. 705 of 2002;

3 the First and Second Appellants’ file and serve the appeal book on the Respondent within seven days after service of the National Court order of 20 January 2003;

The Respondent seeks the following orders:

1 that the Appellants’ Notice of Appeal filed on 27 February 2003 be dismissed for want of prosecution pursuant to O7 r53(a) of the Supreme Court Rules;

2 the Appellants and the Estate of the late Geno Iari pay the Respondent's costs of the proceedings.

The respondent filed an Originating Summons on 22nd November 2002 in the National Court for a writ of possession.

On the 20th January 2003 the National Court ordered that the writ of possession issue to the Respondent in respect of the land described as Section 8 Lot 4 Matirogo (“the land”) and for consequential orders for mesne profits, exemplary damages and costs. The writ of possession issued on the 27th February 2003.

The Appellants filed an Application for Leave to Appeal and a Notice of Appeal on the 27th February 2003 in respect of questions of law and fact arising from the decision of the National Court.

The sealed Notice of Appeal and Application for Leave were served on the Respondent on 14th March 2003.

On the 8th of May 2003 the Application for Leave to Appeal came before a single judge of the Supreme Court. There was an appearance for the Public Curator and the application for leave was withdrawn.

On the 6th of May 2004 the Respondent sold the land, there being no stay or restraining order in place.

On the 12th August 2004 the National Court ordered that the estate of the late Geno Iari be vested in John Beattie.

On the 19th of October 2004 Saulep lawyers served a draft index to the appeal book on the Respondent.

Between 6th October and 18th December 2004 the Appellant's lawyers unsuccessfully checked at the Registry for the National Court file to obtain the order of 20th January 2003.

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On the 23 March 2005 the Respondent’s lawyers advised the Appellant's lawyers that they had instructions to make application to dismiss the appeal for want of prosecution.

On the 5th of April 2005 John Beattie on behalf of the Estate of the Late Geno Iari discontinued the Supreme Court appeal.

By a letter of the 13 April 2005 Saulep Lawyers, lawyers for the Second Appellant, advised the Respondent that the appeal book had not been filed because the Order made in the National Court on 20th January 2003 could not be located.

On 29th of April 2005 the lawyer for the Respondent put the lawyers for the Second Appellants on notice that it was their responsibility to ensure the appeal was expedited.

On 19th May 2005 the Second Appellant lawyers delivered a copy of the transcript of the National Court proceedings of 20th January 2003 to the Registrar together with a draft order and request that the order be sealed. The Registrar replied that the order could not be sealed without the file. That was the position at the end of the first week of June 2005.

The Respondent's lawyers could not find the National Court proceedings file in the National Court Registry between April and early June 2005.

The National Court order of 20th January 2003 obtained by the Respondent was taken out by the Appellant on 3rd August 2005.

The Third and Fourth Appellants filed a notice to withdraw as parties on 10th August 2005. This may not have been served on the Respondent.

Discontinuance by the First Appellant

The Public Curator submits that John Beattie is not the First Appellant and that the Public Curator has never appointed him to act for the Public Curator. It is also submitted that John Beattie was never the Administrator of the land and the appeal arises out of alleged acts or omissions of the Public Curator in his capacity as Administrator of the Estate of the Late Geno Iari in relation to the land, which was not part of the Estate when administration was granted to John Beattie.

Until Grant of probate or Letters of Administration the property of a deceased person vests in the Public Curator. See: Wills Probate and Administration Act, s44. However he may not administer the estate unless he is granted representation rights. The deceased’s property vests for the purpose of administration in the person appointed by the National Court to have representation rights (Probate or Letters of Administration) (s45(2)). Property includes a thing in action and an...