Vitus Kais & 13 Others and Masuba Land Group Incorporated v Sali Tagau and Selon Limited and Tropic Timbers Limited and Pepi Kimas, Secretary for Lands and Physical Planning and The Independent State of Papua New Guinea; Tropic Timbers Limited and John Davidson v Vitus Kais & 13 Others and Masuba Land Group Incorporated and Sali Tagau and Selon Limited (2012) N4810

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 05 October 2012
• Citation: (2012) N4810
• Docket Number: WS NO 301 of 2010
• Year: 2012

Full Title: WS NO 301 of 2010; Vitus Kais & 13 Others and Masuba Land Group Incorporated v Sali Tagau and Selon Limited and Tropic Timbers Limited and Pepi Kimas, Secretary for Lands and Physical Planning and The Independent State of Papua New Guinea; Tropic Timbers Limited and John Davidson v Vitus Kais & 13 Others and Masuba Land Group Incorporated and Sali Tagau and Selon Limited (2012) N4810

National Court: Cannings J

Judgment Delivered: 5 October 2012

PRACTICE AND PROCEDURE—motion for summary judgment—National Court Rules, Order 12, Rule 38—whether summary judgment can be entered before the time for filing a defence to a claim has expired

PRACTICE AND PROCEDURE—whether orders in the nature of substantive relief can be sought by notice of motion—Motions Rules, Rule 9

The cross-claimants in proceedings concerning State land applied by notice of motion, before the time for filing defences to the cross-claim expired, for: summary judgment against the cross-defendants, orders restraining the cross-defendants and others from interfering with the cross-claimants’ enjoyment of land, orders requiring other parties to produce original title documents, an order reinstating previously cancelled mortgages over the contentious land (or in the alternative an order that new mortgages be registered) and an order closing a market that was permitted to be conducted by a previous order of the National Court.

Held:

(1) The application for summary judgment was refused as it is not proper to enter summary judgment before the time for filing a defence has expired; or at any time before a defence is filed.

(2) The applications to restrain the cross-defendants and others from interfering with the cross-claimants’ enjoyment of the land and to reinstate cancelled mortgages were refused as these were substantive...