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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 85 OF 2014
BETWEEN:
PING TAN ENTERPRISE LIMITED
First Plaintiff
AND:
WESTPAC BANK (PNG) LIMITED
Second Plaintiff
AND:
HENRY WASA AS REGISTRAR OF TITLES
First Defendant
AND:
MARGARET MOLAI
Second Defendant
AND:
HINOKI TIMBER LIMITED
Third Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant
Waigani: Nablu, J
2015: 28th August
2016: 29th September, 21st October, 4th November
JUDICIAL REVIEW – Decision of Registrar of Titles to cancel an entry on a certificate of title and restore title to a former title holder – ss.160 &161 of the Land Registration Act – allegations of fraudulent transaction and breach of contract of sale – Registrar does not have power to determine fraud or breach of contract – Registrar’s actions were ultra vires – application for Judicial Review granted.
JUDICIAL REVIEW – Grant of Relief – Applicant must properly plead particulars of damage – claim for damages pursuant to s.150 of the Land Registration Act – General statement of claim not sufficient for Court to exercise its discretion to award damages pursuant to Order 16 Rule 7 of the National Court Rules – Relief of damages refused.
Cases cited:
Aipa v. Samson &Ors (2012) N4777
Kavana v. Hunter (2007) N3208
Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122
MisionAsiki v. ManasupeZurenuoc (2005) SC 797
Counsel:
H. Leahy, for the First Plaintiff
T. Anis, for the Second Plaintiff
M. Mai, for the First and Fourth Defendants
B. Lai, for the Second and Third Defendants
JUDGMENT
4th November, 2016
1. NABLU J: The first plaintiff, Ping Tan Enterprise Ltd and the second plaintiff, Westpac Bank (PNG) Limited were granted leave to review the decision of the first defendant the Deputy Registrar of Titles on the 4thof May 2012 to cancel entry 40759 in respect of the State Lease, Volume 1020 Folio 171for land described as Portion 1620, Granville, Fourmil, Port Moresby.
2. The notice of motion for the substantive review was filed on 13th April 2014. The plaintiff seeks an order in the nature of certiorari to quash the decision of the first defendant made on 4th May 2012 to cancel entry no. 40759 in respect of the State Lease. They also seek an order to restore the first plaintiff and the second plaintiff’s interest as transferee and mortgagee respectively on the State Lease. They also seek damages pursuant to Section 150 of the Land Registration Act and costs.
3. The facts of the matter is not disputed and provided in the various affidavit material filed by the directors of the first plaintiff and the directors of the third defendant. The second defendant and the Registrar of Titles also filed affidavits in response and sought leave of the Court to include it in the Review Book. Leave was granted accordingly.
4. The plaintiff’s relied on the affidavit of Jinfu Ding which was translated by Dai Yuan Yuan. Both affidavits were filed on 15th April 2015.
5. In response, the first defendant filed the Affidavit of Benjamin Samson which was filed on 26th February 2015. The second and third defendants’ relied on the Affidavits of Margaret Molai and Denis Choo NgieKiong which were filed on 4th March 2015.
6. In my view, the main issue in this case is whether the first defendant exercised his powers under Sections 160 and 161 of the Land Registration Act properly.
7. The plaintiff raised four grounds of review to challenge the decision of the Registrar. They were provided in the Amended Statement of Support pursuant to Order 16(3) of the National Court Rules. They are as follows:
8. The background facts are not really in great dispute. I am grateful to Counsel for reducing their submissions in writing which greatly assisted the Court.
9. The property is described as Portion 1620, Granville Fourmil Moresby. The State Lease is Volume 1020 Folio 171. The plaintiff relied on the Affidavit of Jinfu Ding which was filed on 15th April 2016. Mr Ding stated that he was the Director of the plaintiff company. The plaintiff is a duly incorporated company and has been a certified foreign enterprise since 2008. Mr Ding stated that a Contract for Sale of Land was entered into between JDJ Investment Limited and the first plaintiff on 20 August 2008. According to the affidavit, JDJ Investment Limited had agreed with the plaintiff to lease back a portion of land.
10. JDJ Investment then transferred title to the first plaintiff and an instrument for sub-lease was executed. Stamp duty was imposed and paid pursuant to the Contract of Sale and the Memorandum of Sub-Lease. Pacific Legal Group Lawyers were the lawyers on record for the first plaintiff in that transaction.
11. On 11th April 2013, the first plaintiff received a letter from John W Palek Lawyers demanding that all the monthly rental payments by the tenants should be paid to Hinoki Timber Limited, the third defendant instead of JDJ Investment.
12. The first plaintiff then instructed its agent to conduct a title search of the State Lease. The search revealed that the first defendant wrote a letter to JDJ Investment Limited requesting them to deliver up the land title to the State Lease. The letter was not dated. It was also revealed that the Registrar of Titles had published two public notices on 1st September 2011 in the Post Courier and the National newspapers directed to JDJ Investment Ltd to deliver up the title for the land subject of the State Lease.
13. There was also a copy of a statutory declaration by the Deputy Register namely TaisenAsizo, he declared that he received a complaint of breach of contract from Hinoki Timbers and he pursued an investigation. I note that there is no evidence of the outcome of the investigation in any of the affidavit material before me. He also stated in the statutory declaration that there was no response from JDJ Investment in relation to his request to deliver up the title.
14. The second and third defendants then filed National Court proceedings entitled WS 302 of 2009 against JDJ Investment Limited and one Choong Yong Sing. The second defendant Ms Molai claimed that she was not paid any monies for the completion of the sale between HinokiTimbers and JDJ Investment. Ms Molai the plaintiff in the earlier proceedings claimed K180, 000.00 amongst other relief.
15. An offer was made by Pacific Legal Group to settle the matter. Ms Molai and Hinoki Timbers then withdrew their claim by withdrawing the legal proceedings (WS NO. 302 of 2009). There is evidence of a Court order annexed to the affidavit, confirming the withdrawal.
16. According to the second defendant’s affidavit, she stated that she agreed to sell the land because her husband was a director of JDJ Investment and so she agreed to sell the land. The contract of sale was drafted by Steven’s Lawyers who apparently acted for both the purchaser and the seller. The contract was executed on 11th July 2005. The purchase price was for K180, 000.00. According to Ms Molai she stated that no sum of money was exchanged between the parties. She stated that K18, 000.00 was paid to the Internal Revenue Commission as stamp duty but she did not receive any monies from the transaction nor did the third defendant. She stated further, that she did not sign the transfer documents. The transfer was done without her knowledge. Ms Molai also stated that no consideration was paid and therefore the transfer was invalid.
17. Ms Molai lodged a complaint with the Registrar of Titles alleging breach of contract and breach of the National Court order made on 17th April 2009. The Court granted interim restraining orders in proceedings WS No. 302 of 2009 restraining the defendants from evicting them from their residence. The order also froze JDJ Investment and Choong Yong Sing’s bank accounts, and prevented the Registrar from registering any new interests over the property.
18. Mr Denis Choo NgieKiong in his affidavit stated that he is a director of the third defendant. He stated that JDJ Investment did not give any consideration to the second and third defendant. Therefore, any consequent registration of interest in the title is invalid. He stated further that the second and third defendant laid a complaint to the Registrar of Titles. The Registrar exercised his power to cancel the title which ultimately, reverted back to Hinoki Timbers Limited.
19. It is clear that there has been a number of legal proceedings in regard to the property. The plaintiff argued that they properly purchased the property and agreed to sub-lease back to JDJ Investment. They claim that the Registrar cancelled the title without giving them reasonable notice and opportunity to respond. The Registrar of Titles exercised his statutory powers unlawfully when he directed that request to deliver up the title to JDJ Investment Limited instead of Ping Tan Enterprise Limited.
20. I am of the view that the issue before me is simply, whether the first defendant exercised his statutory powers or discretion appropriately to cancel the title. I remind myself that this is a judicial review application where the Court is to determine the question of whether the decision-maker made an administrative decision within the ambit of the law, within the ambit of his or her powers and whether such decision was reasonable. I also caution myself to focus on this issue and not delve into the issue of whether there was a breach of contract and the alleged fraudulent transfer of property between Hinoki Timbers Limited and JDJ Investment Limited. In my considered view, that issue should be the subject of a civil claim between the third defendant and JDJ Investment and not this judicial review.
21. The power of the Registrar of Titles to call up and cancel titles is conferred to it by virtue of Sections 160 and 161 of the Land Registration Act.
22. The Registrar has the discretion to summon a person to deliver up the instrument. The Registrar exercises the discretion when he or she is satisfied that an instrument has been issued either in error; fraudulently; or wrongly obtained; or retained by a person (Section 160 (1)(a) &(b) of the Land Registration Act). Such powers can also be exercised where the instrument held by a person contains a misdescription of the boundaries; or area of portion of land; or contains an entry or endorsement made in error; or fraudulently or wrongly obtained (ss.160(1)(c) & (d) of the Land Registration Act). Also where the instrument of title is held by a party whose rights in an ejectment action has been determined (Section 160(1)(e) of the Land Registration Act).
23. The Registrar’s power to summon a person is discretionary. This is connoted by the use of the term “may” as opposed to the term “shall” in the legislative provision. In cases, where the person summoned does not comply or neglects the summons, or cannot be located, the Registrar has the option to apply to the Court to issue a summons for the person to appear before the Court and show cause why the instrument should not be delivered up (s. 160(2) of the Land Registration Act).
24. In the case of Kavanav. Hunter (2007) N3208, the Registrar applied to the Court to summon a party to appear and show cause why the title should not be delivered up. The facts of the case was that the plaintiff, the Registrar of Titles summoned the defendant to deliver the instrument when he was satisfied that the registered proprietor was a company named Eragedoni Limited. The property was mortgaged to the Papua New Guinea Banking Corporation and later the Bank of South Pacific. The mortgage was discharged in 2002. Whilst the State Lease was in the safe custody of the Bank, the certificate of title was released to one Vincent Toba. Vincent Toba fraudulently held himself out to be a representative of Eragedoni Limited and that he was authorised to obtain the title. Mr Toba then sold the property to Edwin Hunter, the defendant for the price of K115, 000.00. The Registrar was satisfied that the transfer from Eragedoni was fraudulent and relied on s. 160 of the Land Registration Act, to summon the defendant to deliver the State Lease. The defendant did not comply with the summons. The Registrar then applied to the National Court. Unbeknown to him, the defendant had sold the property to Priscilla Winter who was the registered proprietor and had the certificate of title in her possession.
25. The Court held that the Registrar of Titles had lawfully exercised an administrative function under Section 160 of the Land Registration Act. The Registrar was satisfied that the title was fraudulently and wrongly obtained by Vincent Toba and therefore was under a duty to support the Registrar to put a stop to the fraudulent transfer of the property.
26. Where the person fails to comply with the Court summons, the Court has the discretion to issue a warrant of arrest and may examine him or her upon oath and order him to deliver the instrument. (Section 160(3) and (4) of the Land Registration Act). Where a person absconds or intentionally refuses to comply with the summons the Registrar shall, if the circumstances so require, issue to the proprietor of the land an instrument as provided in this Act. A certificate of title of the lost or destroyed interest is re-issued and an entry of the notice of the issue of an instrument and the circumstances under which it was issued along with other particulars is entered in the certificate of instrument. (Section 160(6) (c) and (d) of the Land Registration Act).
27. Sections 160 and 161 of the Land Registration Act were also the subject of judicial consideration in the case of Aipa v. Samson &Ors (2012) N4777. In that case, the Deputy Registrar of Titles wrote to the lawyers for the registered proprietor of a State Lease informing him that he has become aware of a number of anomalies in the issuance of the title to the lawyers client and therefore decided to cancel the title. The registered proprietor applied for judicial review challenging the decision to cancel on the grounds that an error of law was committed by the decision-maker, failure to comply with the mandatory statutory provisions for cancellation of an instrument and denial of natural justice.
28. The Court held that ss.160 and 161 must be read together. Section 160 is a precondition which must be complied with before the Registrar can exercise his power under Section 161 to cancel the title. The Registrar must first, summon the person who has the instrument, after being satisfied that the issuance of the title was erroneous. The decision to interfere or remove a person’s interest in property was an administrative decision which is subject to the principles of natural justice. Notice was not given to the registered proprietor therefore, the applicant was denied natural justice. The court therefore granted judicial review and quashed the decision of the Registrar to cancel the title.
Grounds of Review
1. Denial of Protection under Section 33 of the Land Registration Act.
29. The plaintiff argued that the Registrar of Titles did not afford him the protection under Section 33 of the Land Registration Act. The plaintiff did not pursue this ground in the substantive hearing but did not expressly abandon the ground of review. On the other hand, the second and third defendant’s did make some submissions under this ground.
30. The grounds on which judicial review is available are succinctly provided for in Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122. The grounds of review relied on to challenge an administrative decision must be properly and sufficiently articulated in the Statement of Support filed under Order 16 Rule 3 of the National Court Rules. The grounds must be established and recognized grounds of review at law. The plaintiff has just pleaded a general statement, there are no particulars of their argument or reference to a ground of review recognized by law. Therefore, I see no point in determining this ground of review. The ground of review is dismissed.
2. Registrar of Titles acted ultra vires.
31. The plaintiff challenged the decision on the basis that the Registrar of Titles acted ultra vires. The Registrar did not have the power to act on his own accord and without an order of the National Court and exercised his powers under Sections 160 and 161 of the Land Registration Act unlawfully.
32. The plaintiff argued that Registrar’s powers hinge on the delivering up of the instrument or title of the land. Furthermore, the Registrar did not have the power to determine the issue of fraud or breach of contract.
33. It is not disputed that the Registrar of Titles has the power to summon a person to deliver up the title pursuant to Section 160(1) of the Land Registration Act. The issue is whether the Registrar exceeded his powers or to put it another way, whether the Registrar exercised powers he did not have?
34. Ms Mai of counsel for the first and fourth defendants’ submissions on the application of Section 160 and 161 of the Land Registration Act lacked clarity. She submitted that the first defendant’s invoked the procedure under Section 160 and Section 161 of the Land Registration Act because there was a valid reason to do so. The second and third defendants were not paid by JDJ Investment. Therefore, there was no sale between the third defendant and JDJ Investment.
35. I remind myself that the issue before the Court is whether the Registrar’s decision to cancel the entry is unlawful. The second and third defendants argue that the Registrar had the power under Section 160 and 161 of the Land Registration Act to act in the manner he did.
36. Mr Lai of counsel for the second and third defendant submitted that the Registrar had the discretion to either summon the person who had the title or apply to the Court. Furthermore, the first defendant had the power to replace the title, where JDJ Investment failed to deliver up the title pursuant to Section 162(1) of the Land Registration Act.
37. Whilst I agree that Sections 160 and 161 of the Land Registration Act confers a discretion on the Registrar to summon a person to deliver up a title and cancel the title. There is an aspect of this procedure which I wish to offer comments on later in the judgment.
38. But firstly, I remind myself that this is a Judicial Review matter and the issue for the Court to determine is whether the Registrar acted within his powers. Therefore, the issues like whether there was a breach of contract between the third defendant and JDJ Investment is not an issue before me to determine. That is a matter for the third defendant to pursue against JDJ Investment for damages in a civil claim.
39. Secondly, I reject the submissions made by the first defendant as been misconceived and without merit. I am of the view that the first defendant did exceed his powers under Section 160 and Section 161 of the Land Registration Act. He acted ultra vires and committed a serious error of law. I agree that the Registrar of Titles has a statutory discretion but such discretion must be exercised properly and within the ambit of the law.
40. I find that the second defendant wrote to the Registrar on behalf of the third defendant alleging that the transfer to JDJ Investment was not proper. The second defendant alleged that she was not paid the K180, 000.00 as consideration. This letter prompted the Registrar into action and he exercised his discretion under s.160 to summon JDJ Investment to deliver up the title.
41. The allegation of fraud is in my view a very serious allegation which should have been either referred to the Police for investigation or the subject of legal proceedings between the third defendant and JDJ Investment Ltd. Upon determination of these issues and had a Court found that there was infact a breach of contract or there was fraud, then the first defendant could have exercised his powers under Section160 or Section 161 of the Land Registration Act.
42. Section 160(1)(a) of the Land Registration Act is clear that the Registrar may summon a person who has been issued to a title in error; or fraudulently or wrongly obtained a title.
43. In the present case, the Registrar erred when he issued the summoned JDJ Investments. The Registrar issued the summons when it was clear on the face of the record that the title had since been transferred to the first plaintiff. I find that the Registrar erred in summoning JDJ Investment. In the event that the summons was ignored, the Registrar had recourse to make an application to the Court like in the case of Kavana v. Hunter (supra).
44. The facts of this case is also distinguished from the facts of the case of Kavana v. Hunter (supra) and Aipa v. Samson(supra). In Kavana v. Hunter (supra), the title was fraudulently obtained by a person who held himself out to be the representative of the registered proprietor. In Aipa v. Samson (supra) the title which was issued contained anomalies or errors which the Registrar wish to rectify. Therefore the Registrar had reasonable cause to effect his powers under Sections 160 and 161 of the Land Registration Act. In the present case, JDJ Investment did not fraudulently or wrongly obtain the title nor were they issued the title in error. The instrument was not issued in error to JDJ Investment. There was a duly executed contract and signed transfer instrument.JDJ Investment no longer had the title and it was transferred to the first plaintiff.
45. The Registrar should have applied to the Court for a summons when there was no response. The Registrar does not have the power to determine whether there was a breach of contract or fraud.
46. The allegation of fraud is a serious allegation and the Registrar should have exercised his powers cautiously. Because there was a long delay from the date the transaction was made and the date the complaint was made, it was incumbent on the Registrar to exercise his statutory powers, precariously.
47. I find that the Registrar exceeded his powers under Section 160 of the Land Registration Act.
48. I reject the second and third defendant’s counsel’s argument that the Registrar exercised his powers under Section 162(1) of the Land Registration Act. In the evidence before me, it is clear that the second and third defendant’s letter complained of fraud and breach of Contract. The Registrar does not have the power to determine fraud or breach of contract. In my view the Registrar only has the power to call up an instrument where it was issued in error; the instrument was fraudulently or wrongly obtained or retained by the person. It is clear that the Registrar exceeded his powers when he issued the summons when he determined that there was a breach of contract.
49. In cases where there is an allegation of fraud or breach of contract. The Registrar does not have the power to cancel the title unless ordered to by the National Court. Sections 160 and 161 of the Land Registration Act are only meant to give the Registrar of Titles power to correct errors or rectify situations where the title has been issued to the wrong person or a person had fraudulently or wrongly obtained and retained the certificate of title. The legislature did not, in my view intend to give the Registrar judicial authority to determine breach of contract or fraud. In exercising that judicial authority which he did not have, he exceeded his statutory powers in the manner as contended by the plaintiff.
50. Therefore, I am convinced that the first defendant acted ultra vires. I uphold this ground of review.
3. Denial of Natural Justice
51. The plaintiff argued that the first defendant denied the plaintiff natural justice when he exercised his power to cancel the title without giving them the opportunity to be heard. The defendant’s maintain their argument that the second and third defendants were not paid any consideration for the property and therefore there was actual fraud and breach of contract.
52. I find that the plaintiff was not given the opportunity to be heard or show cause why the title should not be cancelled.
53. The transfer to JDJ Investment Ltd took place on 14th October 2005 (Entry No. S40758). The mortgage to Westpac was entered on 14th October 2005 and was marked as Entry No. S40760.On 5th March 2009 the property was transferred to the plaintiff (S.50763).The Court order in WS No. 302 of 2009 preventing transfer of title to Portion 1620 Granville was obtained on 17th April 2009.The Registrar summoned JDJ Investment on 18th April 2011 to deliver up the title about two years later. Then on 4th May 2012, the Registrar cancelled Entry No. S40759.
54. According to the affidavit of Mr Ding, the writ of summons was filed on 19th March 2009. The defendants in that case, JDJ Investment Ltd and Choong Yong Sing made an offer to settle out of court and paid the second and third defendant. A K180, 000.00 cheque was made payable to Norbert Kubak& Co.to settle the matter. Then on 4th June 2013, the second and third defendant’s filed a Notice of Withdrawal. The plaintiff’s in that case withdrew the proceedings against JDJ Investment. I take judicial notice of the National Court Seal.
55. From the evidence before me, it appears that the second and third defendant misled the Registrar to exercise his powers to call up the title and cancel it.
56. According to the affidavit of Margaret Molai which was filed on 4th March 2015. She wrote to the Registrar to correct the alleged mistake administratively. The letter was dated 14th January 2011 and annexed as Annexure “E”. The letter was written whilst the legal proceedings were on foot. The Court order referred to was an interim restraining order which was ordered on 17th April 2009. It appears that the order was defective because the title had already been transferred to the plaintiff on 5thMarch 2009.
57. According to the Affidavit of Dennis Choo NgieKiong he stated that a Court order was obtained on 17th April 2009. He stated at paragraph 25, that “after two years of court, the Steven Lawyers advised me that the transaction of the Land title was false and has not been honoured and in breach of contract.”He was then purportedly advised to write a letter of complaint to the Registrar of Titles which he did on 14th January 2011. There is no evidence before me to show whether the Court had made a final determination in WS 302 of 2009.
58. Therefore, I reject that evidence by the second defendant and Dennis Kiong. In the evidence before me, there was a valid court order but that order was not effective because it was entered about one month after the Registrar had already transferred the title to the first plaintiff.
59. I am satisfied that the plaintiff was denied natural justice for the reasons alluded to earlier, accordingly, I uphold the third ground of review.
4. Allegation of Fraud
60. In regard to this ground of review, the plaintiff argued that the first defendant’s decision was based on the allegation of fraud. The defendants maintained their argument that the second and third defendants were defrauded by JDJ Investment and therefore the Registrar of title was correct to act in the manner he did.
61. I am of the view that any allegation of fraud in relation to a land transaction or title must be properly alleged and prosecuted. It is insufficient to state that JDJ committed fraud by not paying the contract price. Particulars of the fraud must be properly pleaded to establish and prove fraud. The general statement in the ground of review in relation to fraud without the supporting evidence of particulars in my view is also not sufficient. I would think the argument or ground of review should be that the Registrar’s decision was unreasonable which is a recognised ground of judicial review. That the Registrar took into account extraneous material to make his decision, that is, he took into account the allegation of fraud.
62. Furthermore, as it is pleaded if I go into determining the merits of this ground of review, I would be opening a can of worms, so to speak and dealing with the issue of fraud rather than reviewing the administrative act the subject of this review. Such issue should be properly dealt with by another Court for a civil claim, I presume.
63. Therefore, I decline to determine this ground of review and dismiss it accordingly.
Relief
64. The grant of relief is discretionary. After the applicant has successfully established one or more grounds of review, then the
Court has the discretion to determine what is the appropriate remedy or relief to be granted: Mision Asiki v Manasupe Zurenuoc (2005) SC 797.
65. The applicant seeks an order in the nature of certiorari to quash or set aside the decision of the Registrar on 4th May 2012 to cancel entry No. 40759 in respect of the State Lease. The applicant also seeks an order that the Registrar restore the first and second plaintiff’s interests as transferee and mortgagee respectively on the State Lease as though their interests were being presented to the first defendant for registration for the first time. They also claim damages under Section 150 of the Land Registration Act and costs.
66. In the present case, I am persuaded that this is a serious breach of law and a serious error of law committed by the first defendant. Two grounds of review have been established. The Deputy Registrar, committed a serious excess of jurisdiction which has had a serious impact on the plaintiff’s interest in property. In my view, this warrants the Court to exercise its’ discretion in favour of the plaintiffs to make orders in the nature of certiorari to quash the decision to cancel the entry No. 40759 which related to the transfer to JDJ Investment Ltd. This will mean the Court may have to make consequential orders to compel the Registrar to restore the plaintiff’s interest.
67. The effect of this, it appears that there will be two certificate of titles remaining in relation to the same piece of land, to resolve this, I propose to exercise my discretion to order the Registrar to invoke the process under Section 160 and 161 of the Land Registration Act to call up the title held by the second and third defendant and cancel that title.
68. The second and third defendant still have the legal remedy of making a claim against JDJ Investment for damages or if they have sufficient evidence and to also refer the matter to Police to investigate the allegation of fraud. The other relief sought is damages under Section 150 of the Land Registration Act. Whilst, I note the claim for damages was pleaded in the Statement in Support and Order 16 Rule 7 of the National Court Rules does permit the Court to award damages to a successful judicial review applicant. The discretion will only be exercised, if he has included it in his Statement of Support and if the claim had been made in an action begun by the applicant at the same time as the judicial review application, he could have been awarded damages. I refuse to exercise my discretion because the claim for damages has been inadequately articulated. It is not sufficient to claim damages with a general statement, the applicant must plead the particulars as he would do so, in a civil statement of claim. The respondents should be able to defend the claim properly according to the Rules.
69. For the forgoing reasons, the plaintiffs’ application for judicial review is granted. The relief of an order of certiorari is granted. I refuse the relief of damages. Costs follows the event therefore, the defendants are to pay the plaintiffs’ costs of and incidental to the proceedings to be taxed if not agreed.
Court Order
Pacific Legal Group Lawyers: Lawyer for the first plaintiff
Bradshaw Lawyers : Lawyer for the second plaintiff
Office of the Solicitor General: Lawyer for the first and fourth defendant
BS Lai Lawyers: Lawyer for the second and third defendant
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