Albert Areng v Gregory Babia and National Housing Corporation (2005) N2895

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 22 June 2005
• Citation: (2005) N2895
• Docket Number: WS 501 of 2003
• Year: 2005

Full Title: WS 501 of 2003; Albert Areng v Gregory Babia and National Housing Corporation (2005) N2895

National Court: Sawong J

Judgment Delivered: 22 June 2005

1 PRACTICE AND PROCEDURE—Claim against National Housing Corporation for Damages for Breach of Contract—Notice of Intention to make a Claim against the State—Claims by and Against the State Act 1996 s5—Not Applicable.

2 PRACTICE AND PROCEDURE—Proceedings against Statutory Corporations—Claim against National Housing Corporation—Proceedings against National Housing Corporation—National Housing Corporation Act 1990 as amended to date.

3 Mt Hagen Urban Local Level Government v The National Housing Corporation (2004) WS 1194 of 2002 (Unreported and Unnumbered National Court Judgment of Mogish J dated 20 April 2004), SCR No 1 of 1998; Reservation Pursuant to s15 of the Supreme Court Act (2001) SC672, Steven Pupune v Ubum Makarai [1997] PNGLR 622, AGK Pacific (NG) Pty Ltd v ET Taylor Constructions Pty Ltd (1990) N871, PNGBC v Barra Amevo [1998] PNGLR 240, Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, Tweddle v Atkinson (1861) 1 VS 398 referred to

Held:

1. The provisions of s5 of the Claims By and Against the State Act 1996 do not apply to Statutory Corporation such as the National Housing Corporation.

2. The Failure to give such a Notice on the State will not render nugatory proceedings instituted against a statutory corporation.

3. There are exception either in equity by statute to the principles of privity of contract.

Decision

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Sawong J: By an undated Notice of Motion filed on 19 August 2004 the applicant seek the following orders:

1. The proceedings be dismissed as the plaintiff is not a proper party; ie has no standing to bring proceedings.

2. The proceedings be dismissed for non–compliance of s5 of the Claims by and Against the State Act 1996.

3. In the alternative default judgment entered on the 16 July 2003 be set aside.

4. Leave be granted to the defendants to file a Defence out of time.

In support of the application, counsel for the applicants relied on her own affidavit sworn on 16 August 2004.

The plaintiff/respondents opposes the application. Mr Akuani relies on four (4) affidavits. These were the affidavits of the plaintiff sworn on 28 March 2004, 9 September 2004 and the 10 October 2004 and the affidavit of Michael Areng, filed on 9 September 2004.

Both counsels filed written submissions and also made oral remarks or submissions.

The background to these applications may be briefly stated as follows. The plaintiff is the eldest son and next of kin of Michael Areng and his wife who were the purchaser of a property from the National Housing Corporation (NHC) located at Section 67 Allotment 28 town of Madang (the property). They entered into a contract for the sale and purchase of land with the NHC. The contracts and other relevant documents were duly stamped and ministerial approval was given in 1985. They paid for the property but the NHC have yet to transfer the Title Deed to the plaintiff. Despite many requests to NHC, over the many years the NHC has procrastinated and delayed the transfer. A period of over 17 years lapsed without an end insight. They therefore authorized their son, the plaintiff to institute the present proceedings. Consequently, the plaintiff issued proceedings claiming damages for breach of contract etcetera. Those proceedings were filed on the 24 April 2003. The defendants were duly served with the proceedings. They did not file their Notices of Intention to Defend nor their Defenses at all. Consequently, the plaintiff moved by way of Notice of Motion to have default judgment entered against the defendants for damages to be assessed. Subsequently, on 16 July 2003 the Court granted default judgment to the plaintiff for damages to be assessed and also ordered the defendants to pay the plaintiffs costs. The matter was awaiting the trial of assessment of damages, when the Defendants filed the present application on the 19 August 2004.

The applicants raise several grounds in support of the application. The first ground is that the present plaintiff is not a proper party to bring the present proceedings. In...