SCR No 73 of 2017; Application for Review pursuant to Section 155(2)(b) of the Constitution. Application by: Nodepa Plantation Ltd and Bruce Tsang v Bawan Balat and Winston Balat (2020) SC1927

• Jurisdiction: Papua New Guinea
• Judge: David, Yagi & Kassman, JJ
• Judgment Date: 14 February 2020
• Court: Supreme Court
• Citation: (2020) SC1927
• Year: 2020
• Judgement Number: SC1927

Full Title: SCR No 73 of 2017; Application for Review pursuant to Section 155(2)(b) of the Constitution. Application by: Nodepa Plantation Ltd and Bruce Tsang v Bawan Balat and Winston Balat (2020) SC1927

Supreme Court: David, Yagi & Kassman, JJ

Judgment Delivered: 14 February 2020

SC1927

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

SCR NO.73 OF 2017

APPLICATION FOR REVIEW PURSUANT TO SECTION 155(2)(b) OF THE CONSTITUTION

APPLICATION BY:

NODEPA PLANTATION LIMITED

First Applicant

AND:

BRUCE TSANG

Second Applicant

BAWAN BALAT AND WINSTON BALAT

Respondents

Waigani: David, Yagi & Kassman, JJ

2020: 14 February

SUPREME COURT REVIEW – Application to review decision of National Court – transfer of title to property to first applicant - fraud alleged – declarations sought to declare that transfer of title to first applicant null and void and of no effect – defence raised that proceedings statute-barred – summary judgment entered in favour of respondents - leave granted – substantive review upheld by majority judgment – Constitution, Section 155(2)(b).

Cases Cited:

Avia Aihi v The State (1981) PNGLR 81

Douglas Dent v Thomas Kavali & Ors (1981) PNGLR 488

Avia Aihi v The State (No.2) (1982) PNGLR 44

Mudge v Secretary for Lands [1985] PNGLR 387

NCDIC v Bogibada Holdings Pty Ltd (1987) PNGLR 135

PNG v Colbert [1988] PNGLR 138

Ok Tedi Mining Limited v Niugini Insurance Corporation & Ors (No.2) (1988-89) PNGLR 425

Emas Estate Development Pty Limited v John Mea and The State [1993] PNGLR 215

Kappo No. 5 Pty Ltd v Wong [1997] PGSC 3, SC 520

Application by Ludwig Patrick Shulze; Review Pursuant to Constitution, Section 155(2)(b) (1998) SC572

Tau Gumu v Papua New Guinea Banking Corporation (2001) N2288

Benny Diau v Mathew Gubag (2004) SC775

Mark Bob v The State (2005) SC808

Re An Election Petition for the Tari Pori-Pori Open Electorate; James Marabe v Tom Tomiape and Electoral Commission (2006) SC827

Application by Herman Joseph Leahy (2006) SC855

Poraituk v Hagen (2007) N3204

Ona v National Housing Corporation and Nambawan Supa Limited (2009) SC995

Elizabeth Kanari v Augustine Wiakar and Registrar of Titles (2009) N3589

Oil Search Limited v Mineral Resources Development Corporation Limited (2010) SC1022

Pololi v Wyborn (2013) N5253

Mamun Investment Ltd v Nixon Koi (2015) SC 1409

Treatise Cited:

Peter Hammond, Limitations of Actions - The Laws of Australia 2nd Edition, 2007

Counsel:

Ian Shepherd, for the Applicants

Otto Ogen Dekas, for the Respondents

JUDGMENT

14th February, 2020

1. DAVID & YAGI, JJ: INTRODUCTION: This is a decision in relation to an application to review the decision of the National Court made on 20 September 2012 brought under Section 155(2)(b) of the Constitution. Leave to apply for review was granted on 6 September 2017.

BACKGROUND

2. The National Court proceedings concerned a property known as Allotment 20 Section 15 Kavieng, New Ireland Province and described in State Lease Volume 63 Folio 241 (the property).

3. The title to the property was transferred to the second applicant, Bruce Tsang on 3 July 1978, then to Amon Balat (the deceased), the late husband and father of the respondents Bawan Balat and Winston Balat respectively on 1 June 1983 and then to the first applicant, Nodepa Plantation Ltd on 7 March 2003.

4. By writ of summons endorsed with a statement of claim filed on 25 February 2011 and amended by amended writ of summons endorsed with an amended statement of claim filed on 7 November 2011, the respondents commenced the National Court proceedings pursuant to which it was alleged that the transfer to the first applicant in 2003 was fraudulent. The respondents sought, among others, a declaration that the registration of title in the name of the first applicant was null and void and of no effect and an order that the deceased was the registered proprietor.

5. By a defence filed on 4 February 2012 (pp. 36-37 RB), the respondents averred that the proceedings were statute-barred under Section 16(1) of the Frauds and Limitations Act 1988 or alternatively, the respondents were not and never were the executors or administrators of the estate of the deceased.

6. By a reply filed on 26 March 2012, the respondents claimed that the proceedings were brought to recover the property that had been fraudulently transferred to the first applicant and that the action was saved under Section 19 of the Frauds and Limitations Act 1988. They also admitted that they were never executors or administrators of the estate of the deceased, but had sufficient interest to pursue the action as the immediate surviving relatives of the deceased.

7. On 22 May 2012, the respondents filed a notice of motion seeking summary judgment pursuant to Order 12 Rule 38(1)(b) of the National Court Rules on the basis that the applicants had no defence to the respondents’ claim.

8. On 5 July 2012, the applicants filed an amended notice of motion seeking, among others, orders to dismiss the proceedings on the basis that; they failed to disclose any reasonable cause of action, and for being an abuse of the process of the Court pursuant to Order 8 Rule 27 of the National Court Rules; or alternatively for being statute-barred pursuant to Section 16(1) and or Section 19(1) of the Frauds and Limitations Act 1988.

9. Both notices of motion were heard by the National Court on 20 September 2012. The National Court dismissed the applicants’ motion and granted the respondents’ application for summary judgment.

10. On 22 April 2013, the applicants filed an application to review the decision of the National Court in the Supreme Court in proceedings SCR No.28 of 2013.

11. The hearing of SCR No. 28 of 2013 went before the Supreme Court on 27 October 2016 when the Court found that as the applicants had not sought leave to apply for review in the first instance, the review was not properly before the Court. The Court granted leave to the applicants to withdraw that application and ordered costs against them. The Court also ordered that the applicants were at liberty to file an application for leave to review to go before a single judge of the Supreme Court.

12. Thereafter, on 27 July 2017, the applicants filed an application for leave to review. On 6 September 2017, the Court granted the application.

GROUNDS OF REVIEW

13. The grounds of review are set out at page 78 of the Review Book and these are:

1. The National Court erred in law in failing to uphold the Applicants’ application to dismiss the proceedings for being statute barred when the Respondents’ cause of action did not arise within six years before the commencement of the National Court proceedings and was therefore statute barred by virtue of section 16(1) of the Frauds and Limitations Act 1993.

2. The National Court erred in law in granting summary judgment in favour of the Respondents on the basis that the Applicants had no defence to the Plaintiffs’ claim when the Applicants had pleaded the Frauds and Limitations Act 1998 in its defence filed 4 February 2012.

3. The National Court erred in law in granting summary judgment in favour of the Respondents when the Respondents’ claim was based on fraud which was alleged to have occurred on 26 March 1999 or on registration of the First Applicant’s interest in the land in 2003 on the basis that Division IV of Order 12 of the National Court Rules relating to summary disposal is not available where the claim by the Plaintiff is one based on an allegation of fraud pursuant to Order 12 Rule 37(b).

4. The National Court erred in law in granting orders in terms of 1, 2, 3, 4, 5, 6, 7 and 8 when the Respondents claim was statute barred by virtue of the Frauds and Limitations Act 1988 and when it was not open for the National Court to enter summary judgment by virtue of Order 12 Rule 37(b) of the National Court Rules.

ORDERS SOUGHT

14. The orders sought in the review are set out at page 78 of the Review Book and the principal relief sought are:

1. An order that the National Court’s Decision of 20 September 2012 be reviewed and dismissed.

2. That National Court proceedings WS 113 of 2011 be dismissed.

3. The respondent[s] pay the applicants’ costs of this application and the National Court proceedings.

JURISDICTION

15. In a matter brought before the Supreme Court under Section 155(2)(b) of the Constitution, two distinct steps need to be observed. The first step is a determination of whether leave should be granted to the applicant for a review to occur. The second step is that if leave is granted, then the application for review will be heard and determined. However, if leave is not granted, then there will be no review: Mark Bob v The State (2005) SC808.

16. Where leave is granted to apply for judicial review, the Supreme Court needs to be satisfied that three criteria are satisfied before it will exercise its discretionary power to uphold the review and consider granting any of the orders sought by the applicant: Re An Election Petition for the Tari Pori-Pori Open Electorate; James Marabe v Tom Tomiape and Electoral Commission (2006) SC827, Benny Diau v Mathew Gubag...