Julius Pololi—Acting Public Curator as the Administrator and Trustee of the Deceased Estate of Late Thomas Arthur Wyborn v Bryan James Wyborn and Norman Carl May and My Home Development Limited and PNG Sustainable Development Program Limited and Rupert Tabua and and Romley Kila Pat — Deputy Secretary Lands Department and John Ofio — Acting Secretary for Lands and Henry Wasa — Registrar of Titles and The Independent State of Papua New Guinea (2013) N5253

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J
• Judgment Date: 21 January 2013
• Court: National Court
• Citation: (2013) N5253
• Docket Number: WS 474 OF 2012
• Year: 2013
• Judgement Number: N5253

Full Title: WS 474 OF 2012; Julius Pololi—Acting Public Curator as the Administrator and Trustee of the Deceased Estate of Late Thomas Arthur Wyborn v Bryan James Wyborn and Norman Carl May and My Home Development Limited and PNG Sustainable Development Program Limited and Rupert Tabua and and Romley Kila Pat — Deputy Secretary Lands Department and John Ofio — Acting Secretary for Lands and Henry Wasa — Registrar of Titles and The Independent State of Papua New Guinea (2013) N5253

National Court: Hartshorn J

Judgment Delivered: 21 January 2013

N5253

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 474 OF 2012

BETWEEN:

JULIUS POLOLI – ACTING PUBLIC CURATOR

as the Administrator and Trustee of the Deceased

Estate of Late Thomas Arthur Wyborn

Plaintiff

AND:

BRYAN JAMES WYBORN

First Defendant

AND:

NORMAN CARL MAY

Second Defendant

AND:

MY HOME DEVELOPMENT LIMITED

Third Defendant

AND:

PNG SUSTAINABLE DEVELOPMENT

PROGRAM LIMITED

Fourth Defendant

AND:

RUPERT TABUA

Fifth Defendant

AND:

ROMLEY KILA PAT – DEPUTY SECRETARY

LANDS DEPARTMENT

Sixth Defendant

AND:

JOHN OFOI – ACTING SECRETARY FOR LANDS

Seventh Defendant

AND:

HENRY WASA – REGISTRAR OF TITLES

Eighth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Ninth Defendant

Waigani: Hartshorn J.

2012: 12th, 13th, 14th, 17th, 18th December

2013: 21st January

Trial – sections 2, 10 and 14 Public Curator Act, section 44 Wills Probate and Adminstration Act, sections 16, 19 and 22 Frauds and Limitations Act and section 33 (1)(a) Land Registration Act considered

Facts:

Thomas Arthur Wyborn died in Australia in 1994. In August 1985 he had transferred land that he owned to the first defendant who is one of his sons. The plaintiff contends that the transfer of that land was fraudulent and seeks to overturn that transfer and subsequent transfers of the land.

Held:

1. The Public Curator is a corporation that has perpetual succession, has a seal and is entitled “Public Curator of Papua and New Guinea”. It is not the entity described as the plaintiff in this proceeding.

2. The plaintiff is not the correct entity to bring this proceeding as it is not the requisite corporation and has not been granted any order to administer the estate of Thomas Arthur Wyborn.

3. The purpose of s. 14 Public Curator Act is for the Public Curator to be able to act immediately to preserve the property of a deceased person and its value when the time that could be taken in applying for an administration order, may be detrimental.

4. Section 14 Public Curator Act does not provide for the Public Curator to be able to commence proceedings for any specific purpose or at all. In the absence of an order of administration or any other order granting representation the Public Curator does not have the power to commence and continue proceedings such as the one presently under consideration.

5. The plaintiff is precluded from bringing the first two claims pursuant to s. 16 (1) (a) Frauds and Limitations Act. Any purported reliance upon extended limitation periods by virtue of s.22 Frauds and Limitations Act is not available to the Plaintiff.

6. The proceeding is dismissed.

Cases cited:

Papua New Guinea Cases

Mudge v. Secretary for Lands [1985] PNGLR 387

Emas Estate Development Pty Ltd v. Mea [1993] PNGLR 215

Keimbun Keindip v. State [1993] PNGLR 28

The Papua Club v. Nusaum Holdings Ltd (No 2) (2004) N2630

The Public Curator v. BSP Ltd (2006) SC832

Koitachi Ltd v. Schnaubelt (2007) SC870

Oil Search Ltd v. Mineral Resource Development Corporation Ltd (2010) SC1022

Konze Kara v. Public Curator of PNG (2010) N4055

Overseas Cases

Derry v. Peek (1888) LR 14 App Cas 337

Chan Kit Sun v. Ho Fung Hang [1902] UKPC 10

Assets Company Ltd v. Mere Roihi [1905] AC 176

Fred Long and Sons Ltd v. Burgess [1949] 2 All ER 484

Andrews v. Hogan (1952) ALJR 282

Ruth Mary Hart - Roach & Ors v. Public Trustee & Anor [1998] WASC 34

Byers v. Overton Investments Pty Ltd [2000] FCA 1761

Scallen v. Scallen [2001] NSWSC 1129

Byers v. Overton Investments Pty Ltd [2001] FCA 760

Re Loftus: Green v. Gaul (2005) EWHC 40

Magill v. Magill [2006] HCA 51

H. Stanke & Sons Pty Ltd & Anor v. O’Meara [2007] SASC 246

Hewitt v. Gardner; Hewitt v. Gardner [2009] NSWSC 705

Counsel:

Ms. Twivey, for the Plaintiff

Mr. I. R. Molloy and Mr. G. Gileng, for the First, Second and Third Defendants

Mr. J Brooks, for the Fourth Defendant

21st January, 2013

1. HARTSHORN J. Thomas Arthur Wyborn died in Australia in 1994. In August 1985 he had transferred land that he owned to Bryan James Wyborn, one of his sons. The plaintiff, the Acting Public Curator contends that the transfer of that land was fraudulent and he seeks to overturn that transfer and subsequent transfers of the land.

2. The trial of the plaintiff's claim proceeded after this court refused an application by counsel for the plaintiff for the hearing of the trial to be vacated. During the presentation of the defendants’ case, a further application on behalf of the plaintiff for the trial to be vacated was refused. The remainder of the case was presented in the absence of representation on behalf of the plaintiff.

3. The fifth to ninth defendants have not taken any part in this proceeding and were not represented at the trial.

4. The first to fourth defendants have raised some preliminary issues for consideration which I now consider.

Whether the plaintiff is the correct entity to bring this proceeding

5. The first to third defendants contend that the plaintiff is not the correct legal entity to bring this proceeding. The plaintiff is “Julius Pololi - Acting Public Curator as Administrator and Trustee of the Deceased Estate of Late Thomas Arthur Wyborn”. In paragraph 1 of the amended statement of claim (statement of claim) it is pleaded that “The plaintiff is a legal entity established under the provisions of the Public Curators Act 1951, and is the custodian and legal trustee of deceased estates in Papua New Guinea”. In paragraph 11 it is pleaded that “The plaintiff is the legal trustee and administrator of the deceased estate of Thomas Arthur Wyborn…. who died intestate in 1994, and without leaving a Will.”

6. The first to third defendants contend that there was never any legislation entitled the “Public Curators Act 1951”. There was the Probate and Administration Ordinance 1951 which later became the Probate and Administration Act 1951. This was followed by the Wills, Probate and Administration Act 1970. This earlier legislation contained provisions concerning the Public Curator of Papua New Guinea. Upon the revision of the laws, after Independence, separate legislation, namely the Public Curator Act Ch 81, was created. From the beginning, the Public Curator has been a statutory corporation: s. 6 (1) Probate and Administration Ordinance 1951 and s.2 (2) Public Curator Act Ch 81. Consequently the only entity that could have brought this proceeding, pursuant to s. 2 (2) Public Curator Act, is the corporation by the name of “Public Curator of Papua and New Guinea”. As the plaintiff is not that corporation, the plaintiff is not the correct legal entity to bring this proceeding.

7. From a perusal of the relevant legislation, it is clear that the Public Curator is a corporation that has perpetual succession, has a seal and is entitled “Public Curator of Papua and New Guinea”. It is not the entity described as the plaintiff in this proceeding.

8. Further, the first to third defendants contend that the capacity in which the plaintiff purports to bring this proceeding, apart from Acting Public Curator, namely the administrator and legal trustee, is not correct as there has not been any order of administration made in respect of the estate of Thomas Arthur Wyborn, to the Public Curator or anyone else. During the course of the trial it was conceded by counsel for the plaintiff that no such order had been made.

9. Given the above, I am satisfied that the plaintiff is not the correct entity to bring this proceeding as it is not the requisite corporation and has not been granted any order to administer the estate of Thomas Arthur Wyborn. The proceeding should be dismissed as a consequence.

Whether the plaintiff has the power to bring and continue this proceeding on behalf of the estate

10. A further contention of the first to third defendants, supported by the fourth defendant, is that the plaintiff or the Public Curator as a statutory corporation under the Public Curator Act, does not have the power to bring and continue this proceeding on behalf of the estate of Thomas Arthur Wyborn, whether as administrator, trustee or at all.

11. It is contended that no order has been granted under s. 10 (1) Public Curator Act to the plaintiff to administer the estate of Thomas Arthur Wyborn and no application has been made for such an order. Further, if the plaintiff is reliant upon s. 14 Public Curator Act, that section does not provide to the Public Curator the power to commence and prosecute proceedings of the nature of this proceeding...