Albright Limited v Mekeo Hinterland Holdings Limited and Lucas Dekene, Minister for Lands and Physical Planning and Romilly Kila Pat, Secretary for Lands and Physical Planning and Independent State of Papua New Guinea (2014) SC1400

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 02 May 2014
• Citation: (2014) SC1400
• Docket Number: SCA 150 OF 2013
• Year: 2014

Full Title: SCA 150 OF 2013; Albright Limited v Mekeo Hinterland Holdings Limited and Lucas Dekene, Minister for Lands and Physical Planning and Romilly Kila Pat, Secretary for Lands and Physical Planning and Independent State of Papua New Guinea (2014) SC1400

Supreme Court: Salika, DCJ; David, Yagi JJ

Judgment Delivered: 2 May 2014

SUPREME COURT—Practice and Procedure—setting aside of default judgment—O12 r(2)(a) and r35 of National Court Rules—Default judgment regularly entered—circumstances in which regularly entered default judgment may be set aside.

Cases Cited:

Lerro v Stagg (2006) N3050

Green & Co Pty Ltd v Green [1976] PNGLR 73,

Barker v The Government of Papua New Guinea & Ors [1976] PNGLR 340;

The Government of PNG & Davis v Barker [1977] PNGLR 386;

George Page Pty Ltd v Malipu Bus Balakau [1982] PNGLR 140;

Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145;

Hannet and Hannet v ANZ Banking Group (PNG) Ltd (1996) SC505;

Leo Duque v Avia Andrew Paru [1997] PNGLR 378;

Danny Totamu v Small Business Development Corporation (2009) N3702

Yamanka Multi Services Ltd v National Capital District Commission (2010) N3904.

1. BY THE COURT: Introduction: The appellant was the plaintiff in Proceedings WS N0 258 of 2012—Albright Limited v Mekeo Hinterland Holdings Limited and Others (“the primary proceedings”).

Background

2. On or about 30th November 2007, the Second, Third and Fourth Respondents, their agents and or servants, issued to the First Respondent, a Certificate of Title for a Special Purpose Agriculture and Business Lease (“SPABL” or “Portion 45C Omeri”) over 116,400 hectare of rural customary land known as Portion 45C, Omeri, Yule, in the Central Province, pursuant to Section 11 and 102 of the Land Act 196 (hereinafter referred to as the Lease).

3. On account of the Certificate of Title being indefeasible, the Appellant and the First Respondent entered into various written agreements to enable the Appellant to develop to the lease, giving exclusive rights to the Appellant to conduct agro-forestry projects within the said lease for a period of 98 years.

4. On or about 21st December 2010, the National Court of Justice in another Court Proceedings OS (JR) No 400 of 2009 declared that the Certificate of Title over Portion 45 Omeri, Yule, Central Province, issued to the First Respondent as the Landowner Company was null and void ab initio and was therefore illegal.

5. On 22nd March 2012, Albright Limited (as Plaintiff) as a result of National Court proceedings in OS 400 of 2009 commenced legal proceedings in WS No 258 of 2012 seeking damages against Mekeo Hinterland Holdings Limited (First Defendant), Lucas Dekene as Minister for Lands and Physical Planning (Second Defendant), Romilly Kila-Pat as Secretary for Lands (Third Defendant) and The Independent State of Papua New Guinea (Fourth Defendant).

6. The appellant alleged that prior to the issue of the Lease, and unknown to the Appellant, the First, Second, Third and Fourth Respondents, their servants and agents failed to comply with the requirements of Section 10, 11 and 102 of the Land Act 1996, in that no proper land investigation report (“LIR”) was done or conducted prior to or immediately before the grant of the lease to the First Respondent.

7. The Appellant further alleged that before it entered into the various written agreements to develop the SPABL it had no knowledge that the Certificate of Title issued was defective. It relied upon the indefeasibility of the Title to its detriment. Furthermore, it was argued that the “guarantee” given by the fourth respondent (State) under clause 1.10 of the Instrument of Lease dated 16th November 2007 that the Lease instrument was issued in accordance with all relevant laws induced the Appellant into investing substantial amounts of money in the project. It argued the inducement was negligent misrepresentation and otherwise false.

8. In its statement of claim the appellant Albright Limited alleged that the second, third and fourth respondent owed it a duty of care in ensuring that the Certificate of Title it issued to the First Respondent (which the Appellant/Plaintiff relied upon to its detriment and which the State, through its various entities knew the Appellant would be relying upon) was legal and not defective, by complying with Sections10, 11 and 102 of the Land Act 1996.

9. The appellant alleged that the failure to comply with Sections 10, 11 and 102 of...