Mudge and Mudge v The Secretary for Lands, The Independent State of Papua New Guinea and Delta Developments Pty Ltd [1985] PNGLR 387

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Pratt J, Woods J
• Judgment Date: 06 December 1985
• Court: Supreme Court
• Judgement Number: SC308

Full Title: Mudge and Mudge v The Secretary for Lands, The Independent State of Papua New Guinea and Delta Developments Pty Ltd [1985] PNGLR 387

Supreme Court: Kidu CJ, Pratt J, Woods J

Judgment Delivered: 6 December 1985

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

MUDGE AND MUDGE

V

SECRETARY FOR LANDS

FIRST RESPONDENT

AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA

SECOND RESPONDENT

AND DELTA DEVELOPMENTS PTY LTD

THIRD RESPONDENT

Waigani

Kidu CJ Pratt Woods JJ

31 July 1985

6 December 1985

TORRENS SYSTEM — Indefeasibility of title — Principles applicable to registration under Land Registration Act — Land Registration Act (Ch No 191), ss 33, 36 — Land Act (Ch No 185), ss 9, 29, 57.

REAL PROPERTY — Land Registration Act — Registration under Act confers indefeasible title — Torrens system principles applicable — Lease issued in breach of Land Act — Lease registered — Indefeasible title conferred — Land Registration Act (Ch No 191), ss 33, 36 — Land Act (Ch No 185), ss 9, 29, 57.

Held

(1) Registration of leases under the provisions of the Land Registration Act (Ch No 191) is effective to vest an indefeasible title in the registered proprietor subject only to the exceptions enumerated in s 33.

Frazer v Walker [1967] 1 AC 569; Breskvar v Wall (1971) 126 CLR 376, adopted and applied.

(2) Accordingly, notwithstanding that a State lease issued under the Land Act (Ch No 185) may have been issued irregularly and in breach of the provisions of that Act, registration under the Land Registration Act will confer an indefeasible title.

Cases Cited

Assets Co v Mere Roihi [1905] AC 176.

Avia Aihi v The State [1981] PNGLR 81.

Boyd v Mayor of Wellington [1924] NZLR 1174.

Breskvar v Wall (1971) 126 CLR 376.

Clements v Ellis (1934) 51 CLR 217.

Frazer v Walker [1967] 1 AC 569.

King v Mayor, Etc of Kew (1884) 10 VLR, L 183.

Mayer v Coe [1968] 2 NSWR 747.

Metropolitan Water, Sewerage & Drainage Board v OK Elliott Ltd (1934) 52 CLR 134.

Thompson v Council of the Municipality of Randwick (1944) 44 SR (NSW) 455.

Appeal

This was an appeal from a decision of Bredmeyer J in which his Honour found that there had been breaches of the provisions of the Land Act (Ch No 185) in respect of the granting of a State lease which was subsequently registered under the provisions of the Land Registration Act (Ch No 191), but refused to make orders forfeiting the lease.

Counsel

P Donigi, for the appellants.

J Goodman, for the first and second respondents.

J Gawi, for the third respondent.

Cur adv vult

6 December 1985

KIDU CJ:

BACKGROUND OF THE APPEAL

My brother Woods J has covered the background of this appeal and it is not my intention to go over the same ground.

PRELIMINARY POINT

Counsel for the first and second respondents, as a preliminary point, submitted that the first respondent cannot be sued as the office has no corporate personality. There cannot be any doubt that the office is a public service one created by the Head of State on advice pursuant to the Public Service Act (Ch No 67), s 14. As it is not a corporate entity that can sue or be sued I agree with counsel that the first defendant was an incompetent defendant. In law only a person (a human being of age) or a corporate person (an incorporated body) can sue or be sued in a court. In this case the appellant should have proceeded against the occupant of the office of the Secretary for Lands.

ORDERS CLAIMED IN THE NATIONAL COURT

In the National Court the appellants took out an originating summons (OS 8 of 1983) claiming the following orders:

"1. That the First Defendant as servant and/or agent of the Second Defendant acted ultra vires the Land Act (Ch No 185) in exempting the land known as Allotment 13 Section 156, Boroko and being the whole of the area described in the State Lease Volume 80 Folio 123 from being publicly advertised for persons to apply for the said property in accordance with the provisions of the Land Act (Ch No 185).

2. That the First Defendant as servant and/or agent of the Second Defendant acted illegally contrary to the Land Act (Ch No 185) in granting or causing a grant of the land being Allotment 13 Section 156, Boroko and being the land described, in the State Lease Volume 80 Folio 123 to Delta Developments Pty Ltd, a company duly incorporated in Papua New Guinea.

3. That the First Defendant as servant and/or agent of the Second Defendant acted illegally contrary to the Land Act (Ch No 185) by not considering the application of the Plaintiff or caused to be forwarded to the proper body or persons the application of the plaintiff in respect of the same land abovenamed.

4. That the defendants forfeit the lease granted to Delta Developments Pty Ltd and cause to be convened a proper Land Board hearing to consider applications for the said property by the plaintiff and any other interested applicants on their merits.

5. Such other and further Orders as this Honourable Court sees fit."

DECISION BY THE NATIONAL COURT

Bredmeyer J found that there had been breaches of the Land Act (Ch No 185) in that s 6 and s 29 (3) of that Act had not been complied with. But the learned trial judge rejected the submission by counsel for the appellants that these breaches invalidated the registered title of the third respondent. In rejecting it his Honour said, inter alia, in his judgment:

"As I have said, I consider there have been two aspects of maladministration in the grant of the lease to Delta. The lease should not have been granted before the rezoning was gazetted, and the chairman should have given written notice to Mudge of the application for lease as he was a person who, to the knowledge of the chairman, was interested in the application. What orders should flow from these conclusions? Mr Donigi has argued that I should order the State to forfeit the lease granted to Delta. I do not think that I can order the Minister to forfeit the lease under s 46 of the Land Act. He has his powers under that section; it is up to him whether he wishes to exercise those powers. Section 46 (1) (b) (ii) is a possibility but it seems to me that all of the grounds for forfeiture require fault in one way or another on the part of the lessee; for example, fault in failure to pay the rent or in failure to obey a covenant or condition of lease etc, and in this case no fault has been proved against Delta in theway it obtained the lease.

Although not expressly asked for I undoubtedly have power to grant a declaration. That is normal under s 155 (4) of The Constitution for an excess of power or an illegal administrative act. But it is a discretionary remedy and I do not propose to grant it. There has been a delay in bringing this case. It has not been a long delay. The originating summons was filed about one month after the registration of the lease; nevertheless in the circumstances it is a significant delay. In the interval Delta has expended K23,000 on improving the land the subject of the lease. But the more fundamental reason why I consider no declaratory order should be made is that of [the lease] is indefeasible subject to certain exceptions under s 33 and s 36 of the Land Registration Act 1981. Mr Donigi has been unable to satisfy me that his client comes under any of the nine exceptions stated there, or that s 160 and s 161, which give the Registrar a limited power to correct instruments and titles, has any application to the facts of his case. I have not been cited any authorities on Torrens Acts elsewhere to show that when a Crown lease has been granted in breach of several statutory provisions its registration can be upset in the absence of fraud or one of the other stated exceptions. No fraud has been alleged or proved against anyone. I do not think that is a failure of research on Mr Donigi's part; I would be very surprised if there was any such authority. The kind of indefeasibility conferred by a Torrens statute — is a very real and important thing. I am absolutely sure that the facts of this case give me no grounds whatsoever to upset the indefeasibility of that title. Whether as a result of my findings the plaintiff would have any claim against the State in damages I do not know. No such claim is made in the originating summons and I am not going to decide that. All the orders claimed in the originating summons are refused and the summons will be dismissed with costs." [Emphasis added.]

GROUNDS OF APPEAL

The appellants' grounds of appeal are as follows:

"1. That the judgment of the learned judge was wrong in law.

2. That the learned judge misdirected himself, took into account irrelevant considerations or ignored relevant matters:

(a) in holding that the lease granted to Delta Developments Pty Ltd under a valid law was not harsh or oppressive under Section 41 of the Constitution.

(b) in holding that "Delta has a registered Torrens type lease of the land which is indefeasible subject to certain exceptions under ss 33 and 36 of the Land Registration Act 1981".

(c) in finding that there has...