Niugini Properties Ltd v Londari [2014] PGNC 269; N5727 (15 September 2014)

N5727

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 725 OF 2008

NIUGINI PROPERTIES LIMITED
Plaintiff

V

JEFFERY LONDARI
Defendant

Madang: Cannings J
2014: 11 July, 15 September

LAND – State Leases – indefeasibility of registered title – Land Registration Act, Section 31 (protection of registered proprietor)

The plaintiff became registered proprietor of a State Lease over a residential property pursuant to a transfer to it executed by the former registered proprietor, the defendant. The plaintiff commenced proceedings against the defendant soon after the date of transfer, seeking a declaration that the defendant has no legal or equitable rights over the property and an order permanently restraining him from remaining on or entering it. The plaintiff claimed that those remedies were required as the defendant had failed to give up vacant possession of the property. The defendant did not defend the proceedings.

Held:

(1) The plaintiff proved that it was the registered proprietor of the State Lease. Under the principle of indefeasibility of title enshrined in Section 33 of the Land Registration Act, it holds title to the land from the date of transfer "absolutely free of all encumbrances" subject to limited exceptions, including in the case of fraud (Mudge v Secretary for Lands [1985] PNGLR 387).

(2) The onus of proving a case of fraud or that any of the other exceptions applies rests with the person who challenges the title of the registered proprietor.

(3) The defendant, who evidently refuses to give up vacant possession of the property, is by his conduct challenging the plaintiff's title but has declined the opportunity to defend these proceedings and to take legal steps to disturb the plaintiff's title.

(4) The plaintiff therefore proved that the defendant has no right or interest in the property. The court granted the declaration and orders sought.

Cases cited

The following cases are cited in the judgment:

Elizabeth Kanari v Augustine Wiakar (2009) N3589
Emas Estate Development Pty Limited v John Mea and The State [1993] PNGLR 215
Mudge v Secretary for Lands [1985] PNGLR 387

ORIGINATING SUMMONS

The plaintiff sought declarations and orders to enforce its position as registered proprietor of a State Lease.

Counsel

J Haiara, for the plaintiff

15th September, 2014

1. CANNINGS J: At the centre of this case is a residential property in Alamanda Crescent, Madang: Section 33, Allotment 13. It is covered by a State Lease, the registered proprietor of which is, and has been since 1 August 2008, the plaintiff, Niugini Properties Ltd. Title to the property was on 11 July 2008 transferred to the plaintiff by the prior registered proprietor, the defendant, Jeffery Londari.

2. On 28 November 2008 the plaintiff commenced these proceedings against the defendant, seeking a declaration that the defendant has no legal or equitable rights over the property and an order permanently restraining him from remaining on or entering the property. The plaintiff claims that these remedies are required as the defendant has failed to give up vacant possession of the property. The plaintiff's managing director Sir Soekandar Tjandra deposes in an affidavit that the defendant has resisted all attempts to get him to vacate the property. Evidence has also been adduced that the Police Force has been reluctant to assist the plaintiff.

3. The defendant was originally represented by Kumul Legal Group Lawyers, who filed a notice of intention to defend on 2 February 2009, but they ceased to act for the defendant on 28 April 2009. On 30 April 2009 Kolo & Associates Lawyers commenced to act for the defendant. They are still the lawyers on the record for the defendant, no notice of ceasing to act having been filed. However, in practical terms nothing has been done to defend the proceedings. There was no appearance for the defendant at the trial.

4. The plaintiff has adduced adequate evidence to prove that it is the registered proprietor of the property. Under the principle of indefeasibility of title enshrined in Section 33 of the Land Registration Act Chapter 191, it holds title to the property from the date of transfer "absolutely free of all encumbrances" subject to limited exceptions, including in the case of fraud (Mudge v Secretary for Lands [1985] PNGLR 387). Fraud can be established by proof of actual fraud or constructive fraud (Emas Estate Development Pty Ltd v John Mea & Ors [1993] PNGLR 215, Elizabeth Kanari v Augustine Wiakar (2009) N3589).

5. However, the onus of proving a case of fraud or that any of the other exceptions applies rests with the person who challenges the title of the registered proprietor. The defendant, who evidently refuses to give up vacant possession of the property, is by his conduct challenging the plaintiff's title but has declined the opportunity to defend these proceedings and to take legal steps to disturb the plaintiff's title. The plaintiff has therefore proven that the defendant has no right or interest in the property. I cannot see any reason that the declarations and orders sought by the plaintiff should be refused. Costs will follow the event.

ORDER

(1) It is declared that the defendant has no legal or equitable rights or interests over the property known as Section 33, Allotment 13, Madang ("the property") and he is ordered to give vacant possession of it to the plaintiff within seven days of the date of this order.

(2) The defendant is permanently restrained from remaining on or entering or re-entering the property.

(3) All persons who occupy the property without the approval and consent of the plaintiff are ordered to vacate the property within seven days after the date of service of this order, failing which the plaintiff and members of the Police Force are authorised to use reasonable force to eject such persons and their personal effects from the property.

(4) The defendant shall pay the plaintiff's costs of the entire proceedings on a party-party basis which shall, if not agreed, be taxed.

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

______________________________________________________________
Haiara's Legal Practice: Lawyers for the Plaintiff
Kolo & Associates: Lawyers for the Defendant