Lang v Wagun [2009] PGNC 242; N3933 (16 July 2009)

N3933

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 575 OF 2006

SCHOLLY LANG
First Plaintiff

LOSU REALTY LTD
Second Plaintiff

V

PAUL WAGUN,
PUBLIC CURATOR & OFFICIAL TRUSTEE
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Madang: Cannings J
2008: 27 May, 24 October;
2009: 8 April

DECEASED ESTATES – application for removal of Public Curator as administrator of deceased estate – Public Curator Act, Section 9 – application for inventory and account – Wills, Probate and Administration Act

The plaintiffs are aggrieved by the Public Curator's administration of the estate of a deceased, who died intestate. They seek removal of the Public Curator as administrator of the estate, the appointment of the first plaintiff, the widow of the deceased, in his place, and other orders, including damages.

Held:

(1) The plaintiffs established good grounds for removal of the Public Curator but it is not appropriate to appoint the first plaintiff as administrator or to make the other orders, including damages, sought by the plaintiffs.

(2) Orders made that provide for appointment by the court of a registered liquidator to administer the estate.

Cases cited

The following case is cited in the judgment:

Scholly Lang and Losu Realty Ltd v Paul Wagun and The State (2008) N3592

ORIGINATING SUMMONS

This was the trial of an originating summons which sought removal of the Public Curator as administrator of a deceased estate.

Counsel

B W Meten, for the plaintiffs
No appearance for the defendants

8 April, 2009

1. CANNINGS J: Mrs Scholly Lang is the widow of the late Galeng Lang, a member of Parliament, who died intestate on 8 August 1992. She is asking the court to transfer administration of Mr Lang's estate from the Public Curator to herself. She is the first plaintiff. The second plaintiff is Losu Realty Ltd, a family company which she and Mr Lang formed some years ago.

2. The estate is potentially quite valuable as Mr Lang had acquired several properties, including a commercial property in the central business district of Madang town, which has amongst its tenants the ANZ Bank.

3. The Public Curator, the first defendant, was appointed as administrator of Mr Lang's estate by letters of administration issued by the then Registrar of the National Court, Mr L M Newell, on 21 March 2002.

4. Mrs Lang and her son Elvis allege the Public Curator has failed to properly administer the estate. They allege that most of these properties are now in a state of disrepair and as a consequence, their value has significantly declined. They say that there have been no audited reports on the affairs of the estate. They claim that the Public Curator has failed miserably to discharge his duties under the Wills, Probate and Administration Act.

5. The plaintiffs commenced court proceedings against the Public Curator and the State, by originating summons, in 2006. As well as orders for transfer of administration of the estate, the plaintiffs want the court to order the Public Curator to prepare and file a statement of accounts and to produce in court all title deeds for properties forming part of the estate. They are also seeking a declaration that ownership of the properties that have been administered by the Public Curator be vested in Losu Realty Ltd. They also want damages for losses they say they have suffered as a consequence of the Public Curator's delay in filing a final statement of account.

6. In February 2008, I refused a motion by the plaintiffs for summary judgment (Scholly Lang and Losu Realty Ltd v Paul Wagun and The State (2008) N3592). On that occasion the defendants were legally represented. However, at the trial of the originating summons, they were not. The only evidence available to the court has been tendered by the plaintiffs.

7. The issues are straightforward:

1. Should administration of the estate be transferred?
   
2. Should the Public Curator be required to provide an account of the estate?
   
3. Should the court declare that ownership of properties be vested in Losu Realty Ltd?
   
4. Should the plaintiffs be awarded damages?
   

1 SHOULD ADMINISTRATION OF THE ESTATE BE TRANSFERRED?

8. The Public Curator has had more than six years to finalise administration of the estate. Though it is evidently a complex estate, no good reasons have been advanced to warrant the Public Curator continuing, after such a long period, in the role of administrator. He has not responded to repeated requests from Mrs Lang for an account of the estate. I am satisfied that there are good grounds for the Public Curator being removed as administrator and for appointing another person in his place.

9. I will effect the changes in accordance with Section 9(1) of the Public Curator Act, which states:

Where an order has been made under this Part, the National Court may nevertheless grant probate of the will, or administration of the estate, of a deceased person to any person—

(a) in such manner; and

(b) subject to such limitations or conditions,

as it thinks proper.

10. It is not a good idea to appoint Mrs Lang as administrator of the estate. She is likely to be the primary beneficiary. Under Section 84 of the Public Curator Act the widow of a man who dies intestate with children is generally entitled to one-third of the estate. Mrs Lang would be in a conflict of interest situation in the event that other persons wish to claim an interest in the estate. Mrs Lang claims to have had a statutory marriage with Mr Lang. However, it is acknowledged in the evidence that Mr Lang had a second, de facto, wife, in addition to Mrs Lang; and it is likely that that lady is claiming an interest in the estate. It is much better that an independent person be appointed as administrator. That person should have the technical skills required to administer a complex estate and I think that the most appropriate person would be a registered liquidator. I will order the Registrar of the National Court to nominate a registered liquidator.

2 SHOULD THE PUBLIC CURATOR BE REQUIRED TO PROVIDE AN ACCOUNT OF THE ESTATE?

11. Yes, this is a reasonable and necessary requirement. I will make an appropriate order based on Section 59 of the Wills, Probate and Administration Act.

3 SHOULD THE COURT DECLARE THAT OWNERSHIP OF PROPERTIES BE VESTED IN LOSU REALTY LTD?

12. No. The court is in no position to make such a declaration. It would defeat the purpose of having the estate administered independently to make this sort of pre-emptive decision.

4 SHOULD THE PLAINTIFFS BE AWARDED DAMAGES?

13. No. The court is in no position to declare liability or award damages. If the plaintiffs consider that they have a cause of action, in negligence for example, against the Public Curator, separate proceedings should be instituted by writ of summons.

ORDERS

(1) The letters of administration issued by the Registrar of the National Court in WPA No 4 of 2002 on 21 March 2002 are revoked forthwith.

(2) All the interest, powers, rights and duties of the Public Curator (except any right conferred by Section 9(4) or (5) of the Public Curator Act) in regard to the estate of the late Galeng Lang and all liabilities of the Public Curator under any contract or agreement entered into by him in relation to the estate of the late Galeng Lang, cease forthwith.

(3) The Public Curator shall within 21 days after service of this order upon him:

• (a) file an affidavit in the National Court exhibiting a correct inventory and account of the properties of the deceased, and without limiting the generality of the foregoing shall provide a full account of receipts and disbursements of the estate of the late Galeng Lang; and
  
• (b) hand deliver to the Registrar of the National Court all letters received, and copies of all letters written by him, and all deeds, papers and writings of and relating to the estate of the late Galeng Lang, including all title documents of all real property the subject of that estate.
  

(4) The Registrar of the National Court shall keep safe custody of all documents and things delivered to him under Order No (3)(b) and shall not transfer custody of them without the leave of the National Court.

(5) The Registrar of the National Court shall, within seven days after service on him of the affidavit and documents referred to in Order No (3), after consulting the Papua New Guinea Institute of Accountants, nominate to the Court, by affidavit, a person who is a registered liquidator under the Accountants Act 1996, for appointment as administrator of the estate of the late Galeng Lang, and the Court shall thereupon consider the nomination and decide whether to appoint the nominee.

(6) Until the appointment of an administrator by the Court under Order No (4), no interest in or any part of the property of the estate shall be assigned, transferred or otherwise dealt with, without the leave of the National Court.

(7) Costs of these proceedings shall be paid by the defendants to the plaintiffs on a party-party basis, to be taxed if not agreed.

(8) Time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Judgment accordingly.
____________________________
Narokobi Lawyers: Lawyers for the Plaintiffs
Solicitor-General: Lawyer for the Defendants