Pololi v Wyborn [2013] PGNC 65; N5253 (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] UKLawRpAC 11; [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 presently before the court. It is contended that s. 14 Public Curator Act is intended to avoid a situation of bona vacantia, or lacuna in title in respect of the property of a deceased from the time of death until an administrator or executor is appointed. The first to third defendants refer to Certoma, The Law of Succession in New South Wales, Third Edition p253 and cite numerous cases in support of their contention: Chan Kit Sun v. Ho Fung Hang [1902] UKPC 10, (a Privy Council appeal from the Supreme Court of Hong Kong), Fred Long and Sons Ltd v. Burgess [1949] 2 All ER 484 and Andrews v. Hogan (1952) ALJR 282.

12. From a perusal of the passage from Certoma, and the cases cited, it is apparent that pursuant to the relevant legislation in England and Australia, s.9 Administration of Estates Act 1925 England and s. 61 Wills, Probate and Administration Act 1898 New South Wales, from the date of death until the making of a grant of representation, the real and personal estate of a deceased person was deemed to be vested in the President of the Probate, Divorce and Admiralty Division of the High Court, in the case of England or the Public Trustee, in the case of New South Wales. The positions of the President and Public Trustee are not that of a "mere formal repository of the legal estate". They have some rights and powers but have no obligations or active duties.

13. That this remains the position at least in the States of Western Australia and New South Wales is indicated by the cases of Ruth Mary Hart - Roach & Ors v. Public Trustee & Anor [1998] WASC 34, Byers v. Overton Investments Pty Ltd [2000] FCA 1761, Byers v. Overton Investments Pty Ltd [2001] FCA 760, Scallen v. Scallen [2001] NSWSC 1129 and Hewitt v. Gardner; Hewitt v. Gardner [2009] NSWSC 705.

14. The equivalent section in our jurisdiction is s. 44 Wills, Probate and Administration Act which is as follows:

"44. Initial vesting in Public Curator.

Until probate or administration is granted, the property of a deceased person vests in the Public Curator, in the same manner and to the same extent as formerly personal estate in England vested in the Ordinary."

15. Given that s. 44 is similar to s.9 Administration of Estates Act 1925 and s. 61 Wills, Probate and Administration Act 1898, and is likely derived from those sections or their predecessors, its interpretation should also be similar, in the absence of contrary interpretation by our Supreme Court. In that regard, in the Supreme Court case of The Public Curator v. BSP Ltd (2006) SC832, the Court said the following as to the position of the Public Curator:

"Until Grant of probate or Letters of Administration the property of a deceased person vests in the Public Curator. See: Wills Probate and Administration Act s 44. However he may not administer the estate unless he is granted representation. The deceased's property vests for the purpose of administration in the person appointed by the National Court to have representation rights (Probate or Letters of Administration) (s 45(2))."

16. This statement by the Supreme Court is indicative of a similar view to that previously referred to, of the vesting of the estate prior to a grant of representation and as to the lack of rights, powers and obligations of the Public Curator that are assumed upon such a vesting.

17. Section 14 Public Curator Act, it is as follows:

"14. Taking possession of deceased estates.

(1) Where a person dies leaving property in the country and, as far as the Public Curator or a Public Curator's agent can ascertain—

(a) he left no will; or

(b) he left a will, but no executor was appointed in the will; or

(c) he left a will and an executor was appointed in the will, but the executor—

(i) is dead; or

(ii) is too far from the place where the property or any part of it is situated to be able to take care of it without delay; or

(iii) does not intend, or neglects, to act as executor,

the Public Curator, or a Public Curator's agent on his behalf, may immediately and without any order under this Division take possession of the property or any part of it.

(2) When the Public Curator or a Public Curator's agent has taken possession under Subsection (1) of the real estate of a deceased person, he may—

(a) take any steps and incur any expense that he thinks necessary for preserving it or anything in, on, or annexed to it; and

(b) collect and sell any product of it that would decrease in value by being kept, and incur any necessary expense in connexion with the collection or sale.

(3) Where the Public Curator or a Public Curator's agent has taken possession under Subsection (1) of the personal estate of a deceased person, he may—

(a) sell or dispose of it, or any part of it, if it appears to him that it will be for the benefit of the estate of the deceased person that he should do so; and

(b) pay out of it, or of the proceeds of it—

(i) the funeral expenses of the deceased person; and

(ii) the expenses incurred in collecting, preserving, selling, or disposing of the personal estate; and

(iii) the expenses incurred under Subsection (2).

(4) Where a Public Curator's agent has taken any action under this section, he shall immediately give full particulars of the action to the Public Curator.

18. Section 14 permits the Public Curator or his agent to immediately and without any order of administration, to take possession of the property of a deceased person. This power given to the Public Curator or his agent, is given in a section that follows other sections that provide for the Public Curator to apply for an order to administer a deceased person's estate in certain circumstances such as where there is no executor or widow, or probate or administration has not been applied for, or there is a reasonable suspicion of the death of a person, or a person is missing. It is in this context that s. 14 should be considered, in my view.

19. Section 14 refers to possession being taken immediately, and s. 14 (2) (a) provides for the taking of any steps thought necessary for preserving real estate or anything in on or next to such real estate. Section 14 (2) (b) permits the sale of any product that would decrease in value, and s. 14 (3) (a) permits the sale or disposal of the personal estate or any part of it, if it appears to the Public Curator or his agent that it would be for the benefit of the deceased person's estate.

20. These provisions indicate in my view, that 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 in circumstances where the time that could be taken in applying for an administration order, may be detrimental.

21. Section 14 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, and given the widely accepted interpretation of the lack of rights, powers and obligations assumed upon a vesting of an estate prior to a grant of representation, I am of the view that the Public Curator does not have the power to commence and continue proceedings such as the one presently under consideration. I am fortified in my view by having regard to the following passage of Windeyer J. In Scallen v. Scallen (supra). This case concerned proceedings where there had not been a grant of probate or administration:

"..... I consider it is established by ex parte The Public Trustee re Birch (1951) 51 SR (NSW) 345 that the fact the estate of the deceased before grant is deemed to vest in the Public Trustee "in the same manner and to the same extent as aforetime the personal estate and effects vested in the Ordinary" does not mean that the Public Trustee has power, in respect of the estate of a deceased person before grant of administration, to bring an action to recover property transferred as a result of undue influence or unconscionable conduct. Andrews v Hogan [1952] HCA 37; (1952) 86 CLR 223, which held that a notice to quit can be served on the Public Trustee, and perhaps that the Public Trustee has capacity to surrender a lease, does not go so far as to hold that the Public Trustee would be empowered under s 61 to commence the action the plaintiff purports to bring as representative of the estate. In Foy v Public Trustee (1942) 64 SR (NSW) 209 at 211, Roper J held there was no such power. As power to take possession of assets and to hand them to the administrator for distribution does not extend to power to pursue a chose in action in Court proceedings; refusal to do so cannot be relied upon as a ground to entitle a beneficiary to take proceedings on behalf of the estate. It must be remembered that limited grants for the purpose of bringing actions can be made in appropriate circumstances. Assuming that the chose in action is vested in the Public Trustee (which it is) and the Public Trustee has power to take action to recover it, (which he has not) it would not be appropriate for a beneficiary in the estate to take action on the basis that the Public Trustee refused to do so."

22. Consequently, this proceeding should be dismissed.

Whether the plaintiff's claims are time barred

23. The first to fourth defendants contend that the claims of the plaintiff are time barred. This is because the claims are founded on tort and have been brought after the expiration of six years from when the alleged causes of action accrued, contrary to s. 16 Frauds and Limitations Act.

24. The first two claims of the plaintiff are described in the statement of claim as a "Fraudulent Rezoning of Land" in April 1984 and a "Fraudulent Transfer of Title to Brian James Wyborn" in August 1985.

26. As to the fraudulent rezoning of land, paragraph 13 of the statement of claim pleads negligence. As to the fraudulent transfer of title to Brian James Wyborn, paragraph 14 pleads a fraudulent transfer and paragraph 15 pleads fraudulent actions of the first defendant, Bryan James Wyborn, and Lands Department officials. The relief that is sought in respect of these claims are declarations that amongst others, the transfer of the subject land by Thomas Arthur Wyborn to Brian James Wyborn on 25th August 1985, is null and void and of no effect, as are subsequent rezoning and subdivisions, and transfers of the subject property.

27. Section 16 Frauds and Limitations Act relevantly provides that:

"(1) Subject to Sections 17 and 18, an action –

a) that is founded on simple contract or on tort;.....

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued."

28. Section 17 concerns actions within the admiralty jurisdiction and is not relevant here. Section 18 is:

"Section 16 does not apply to any claim for specific performance of a contract or for an injunction or for other equitable relief."

29. The relief sought in the statement of claim in regard to the first two claims is declaratory. As to whether the declaratory relief sought can be categorised as equitable relief, it is necessary to examine the pleadings in order to determine the true nature of the relief sought: H. Stanke & Sons Pty Ltd & Anor v. O'Meara [2007] SASC 246 para 39. An examination of the pleading reveals that no equitable claims for relief are made. The claims that are made are common law claims of negligence and fraud including forgery. Consequently the declaratory relief sought in respect of the first two claims of the plaintiff cannot be described as equitable relief and as covered by the wording of s. 18 Frauds and Limitations Act.

30. As to whether the first two claims made are founded on tort, I am satisfied that they are. The claim entitled "Fraudulent rezoning of Land" in fact pleads negligence. Negligence is an element of tort or a separate tort: Clerk & Lindsell on Torts 11th edition p 49. The claim entitled "Fraudulent transfer of title to Brian James Wyborn", pleads a claim of fraud and gives particulars which include forgery. Fraud or deceit is a tort: Derry v. Peek (1888) LR 14 App Cas 337, Magill v. Magill [2006] HCA 51.

31. In Oil Search Ltd v. Mineral Resource Development Corporation Ltd (2010) SC1022, the Supreme Court held amongst others, that the determination of whether an action is time barred entails a finding on three matters: identification of the cause of action, identification of the date on when the cause of action accrued and a categorisation of the cause of action.

32. As to the causes of action, as mentioned, they are in negligence and fraud/deceit, and are founded on tort. The dates that the causes of action accrued, submit the first to fourth defendants are either: 1981 when the deceased gave his power of attorney to Bryan Wyborn to deal with the subject land, or 1982 when the memorandum of transfer was signed by Thomas Wyborn, or 1985 when the subject land was registered in the name of Bryan Wyborn. I agree with this submission. It is therefore at least, about 27 years ago that the date of any cause of action that Thomas Wyborn may have had, accrued and that is the date of accrual of the causes of action the plaintiff now seeks to bring on behalf of Thomas Wyborn's estate.

33. Given the above, but subject to whether the plaintiff is able to rely upon the provisions of s. 22 Frauds and Limitations Act to extend the limitation period, I am satisfied that the plaintiff is precluded from bringing the first two claims pursuant to s. 16 (1) (a) Frauds and Limitations Act.

Extension of limitation period

34. It is submitted that the plaintiff is not able to rely upon the provisions of s. 22 Frauds and Limitations Act to extend the limitation period as there has not been any evidence adduced that Thomas Wyborn was under a relevant disability for the purposes of s.22 at the time that he transferred his interest in the subject property to Bryan Wyborn.

35. The evidence of Messrs Bryan, Ian and Graham Wyborn is that their father, Thomas Wyborn, was of sound mind when he transferred his interest in the subject land to Bryan Wyborn. It is further submitted that the handwritten notes of Thomas Wyborn together with the documents from lawyers in Papua New Guinea and Australia are strong evidence that Thomas Wyborn was not under any disability when he transferred the subject land. I agree with these submissions and am satisfied from a consideration of the evidence that Thomas Wyborn was not under any disability at the time that he transferred the subject land to Bryan Wyborn. Consequently any purported reliance upon extended limitation periods by virtue of s.22 Frauds and Limitations Act is not available in this instance.

Section 19 Frauds and Limitations Act

36. A further submission is that s. 19 Frauds and Limitations Act does not apply in this instance as the plaintiff's claim is not an action in respect of any claim to a personal estate or to any share or interest in a personal estate. Reliance has been placed upon my decision in Konze Kara v. Public Curator of PNG (2010) N4055 and Re Loftus: Green v. Gaul (2005) EWHC 40. Further, even if s. 19 does apply, the 12 year period commencing on the date when the right to receive a share or interest in the personal estate accrued, has expired. I agree with this submission. Section 19 does not apply in this instance. Section 19 applies to the claims of beneficiaries of a deceased estate. That is not the nature of the claim brought by the plaintiff.

37. Given the above, as mentioned, the plaintiff is precluded from bringing the first two claims pursuant to s. 16 (1) (a) Frauds and Limitations Act and those claims should be dismissed. The remaining claims are brought by the plaintiff on the basis that the estate of Thomas Wyborn owns the subject land - that is that the transfer of the subject land to Bryan Wyborn is null and void and of no effect. As the claim seeking to overturn the transfer of the subject land to Bryan Wyborn is precluded from being brought pursuant to s. 16 (1) (a) Frauds and Limitations Act, the estate of Thomas Wyborn does not own the subject land, and the plaintiff has no standing to bring the remaining claims. Consequently all of the claims of the plaintiff in the statement of claim should be dismissed.

Indefeasibility of title

38. The various declarations and other relief claimed by the plaintiff impugne the titles of the fourth defendant to the subject land. The fourth defendant's titles are registered and pursuant to s. 33 Land Registration Act, the titles are indefeasible, subject to certain exceptions. The exception relied upon by the plaintiff is fraud. The first to fourth defendants' submit that the plaintiff's case falls short as there is no evidence of any fraud.

39. Section 33 (1) (a) Land Registration Act is as follows:

"(1) The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except –

(a) in the case of fraud;....."

40. The nature of fraud for the purposes of s. 33 (1) (a) has been considered by the Supreme and National Courts on numerous occasions. Counsel for the first to third defendants submits that the traditional interpretation of this provision, its predecessors, and its counterparts in other jurisdictions is that a registered proprietor has indefeasible title except in the case of fraud meaning fraud on his part. The following cases are cited in this regard: Assets Company Ltd v. Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176; Mudge v. Secretary for Lands [1985] PNGLR 387; Keimbun Keindip v. State [1993] PNGLR 28; The Papua Club v. Nusaum Holdings Ltd (No 2)(2004) N2630; Koitachi Ltd v. Schnaubelt (2007) SC870.

41. In Koitachi (supra), the Supreme Court of which I was a member, said that fraud under section 33 Land Registration Act means more than constructive or equitable fraud. The Supreme Court quoted extensively from the decision of Gavara Nanu J. in The Papua Club case (supra) including:

"It can therefore be deduced from these principles that once the land is registered, the owner attains indefeasibility of title which cannot be invalidated by any unregistered interests or mere irregularities except fraud by the registered proprietor or actual fraud."

42. There is however, the Supreme Court case of Emas Estate Development Pty Ltd v. Mea [1993] PNGLR 215 and some subsequent National Court cases which allow a wider meaning to be given to what constitutes fraud for the purposes of s. 33 (1) (a) Land Registration Act. These cases support the proposition that fraud also includes circumstances where an interest in land has been created or transferred in an obviously unlawful or irregular manner.

43. Counsel for the first to fourth defendants submit that these apparent differences in what constitutes fraud for the purposes of s. 33 (1) (a) can be reconciled. The Supreme Court cases of The Papua Club (supra), PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126 (in which I was a member of the court but did not express a view on this issue), and the majority decision in Lae Bottling Industries Ltd v. Lae Rental Homes Ltd (2011) SC1120, are cited in this regard.

44. The first to fourth defendants submit that even if the wider approach of the definition of fraud in s. 33 (1) (a) is preferred, there was no evidence adduced on behalf of the plaintiff of fraud such that the registered title of the fourth defendant should be set aside.

45. The fourth defendant further submits that:

a) the plaintiff's pleading that the fourth defendant was not a "bona fide purchaser for value without notice" is an equitable principle only and is not applicable and relevant when regard is had to s. 33 Land Registration Act. The only exceptions to an indefeasible title are those contained in s. 33 (1) (a) to (i) Land Registration Act,

b) any fraud must be referable to the transaction by which registered title was obtained and not some prior dealing with the title,

c) there is no pleading in the statement of claim concerning, and there was no evidence of, any irregularity or non-compliance with mandatory statutory requirements concerning the transactions pursuant to which the fourth defendant obtained its registered titles.

46. As to the pleading that the fourth defendant was not a bona fide purchaser for value without notice, it is irrelevant to whether the fourth defendant has a good title under s. 33 Land Registration Act. This is an equitable principle only and cannot defeat a statutory right. Further, it is not replicated in one of the exceptions under s. 33 (1) (a) to (i) Land Registration Act.

47. As to the fraud being relied upon being referable only to the transaction by which title was obtained and not a prior dealing, a perusal of the relevant authorities confirms this. Further, there is no pleading concerning, and there was no evidence adduced of, any irregularity or non-compliance with any mandatory statutory requirements concerning the transactions pursuant to which the fourth defendant obtained its registered titles.

48. As to actual fraud, the plaintiff pleads that:

a) the fourth defendant conspired to defraud the State by not paying proper stamp duty. The evidence of Mr. Steven Kami comprehensively dealt with these allegations. It is clear that the stamp duty as assessed was paid, being 5% of the contract price as assessed by the Internal Revenue Commission. Mr. Kami's evidence was convincing and unchallenged. I am satisfied that the fourth defendant did not conspire to defraud the State and in fact paid all relevant stamp duty as properly assessed.

b) the plaintiff alleges that the relevant contracts were signed by one director of the fourth defendant and that this renders the contracts and the titles to the fourth defendant void. This allegation is without merit. There was no evidence of the signing requirements of the fourth defendant and in any event it is a matter between the contracting parties, neither of whom complain about the transactions.

c) the plaintiff alleges that the fourth defendant bribed the fifth defendant and that a payment was made by the third defendant for the purchase of a kit house for Mr. Aloysius Aihi, an employee of the fourth defendant. Mr. Aihi has dealt with these allegations comprehensively in his evidence. I am satisfied from the evidence that these allegations have no basis and are without merit.

49. Given the above, I am satisfied that the plaintiff's claims for the relief that impugn the fourth defendant's registered titles to the subject land must fail. The pleadings and the evidence are such that the plaintiff's attempt to set aside the fourth defendants registered titles falls far short of what is required, on either the traditional or wider definitions of fraud in s. 33 (1) (a) Land Registration Act. There is not in my view, any evidence of fraud by the fourth defendant.

50. As I am satisfied that the proceeding should be dismissed as:

a) the plaintiff is not the correct entity to bring this proceeding, and has not been granted any order to administer the estate of Thomas Arthur Wyborn,

b) the Public Curator does not have the power to commence and continue this proceeding,

c) the first two claims of the plaintiff are time barred and the plaintiff does not have standing to bring the remaining claims,

and as I am satisfied that the plaintiff's claims for relief that impugne the fourth defendant's registered titles for the subject land must fail, this proceeding is dismissed. Given this, it is not necessary for me to consider the other submissions of counsel apart from on the question of costs.

51. As to costs, the first to fourth defendants submit that the plaintiff and his agents personally or Mr. Samson Jubi, an agent of the plaintiff, personally should pay their costs of the proceedings on an indemnity basis. I wish to hear further submissions on this issue.

Orders

52. The formal Orders of the Court are:

a) The claims of the plaintiff are dismissed.

b) Judgment is entered for the defendants on the amended statement of claim.

c) All interlocutory injunctions presently in force are discharged.

d) The Registrar of the National Court is directed to pay out forthwith to the trust account of the lawyers for the first, second and third defendants, or as they may otherwise direct the Registrar in writing, all monies paid into court by or on behalf of any of the first, second or third defendants pursuant to any interlocutory injunctions in this proceeding, with any accretions if any.

e) Costs are reserved for further submissions and determination.

f) Time is abridged.

___________________________________________________________

Twivey Lawyers: Lawyers for the Plaintiff
Posman Kua Aisi: Lawyers for the First, Second and Third Defendants
Gadens Lawyers: Lawyers for the Fourth Defendant