Top Brat Trading Ltd v PNG Toner and Ink Supplies Ltd [2022] PGNC 318; N9814 (8 August 2022)

N9814

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE AT KOKOPO]

WS NO. 322 OF 2020

BETWEEN:
TOP BRAT TRADING LIMITED
Plaintiff

AND:
PNG TONER AND INK SUPPLIES LTD
First Defendant

AND:
PETER VIRIT
Second Defendant

AND
ALA ANE, Acting Registrar of Titles
Third Defendant

AND
BENJAMIN SAMSON, Secretary, Department Lands & Physical Planning,
Fourth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Kokopo: Kassman, J
2021: 1^st December
2022: 8^th August

CIVIL PRACTICE & PROCEDURE – evidence adduced and submissions presented – re-opening for further evidence and submissions

Evidence was adduced by the Plaintiff and First Defendant who also appeared at trial. The other defendants failed to file their defences and affidavits and also failed to appear at trial. The court identified numerous discrepancies in the evidence adduced at trial which should be addressed conclusively by evidence from the parties who failed to plead, failed to file affidavits and failed to participate in the trial.

Held:

(1) The court may re-open a matter for further evidence and submission and may make such orders as the nature of the case requires Order 12 Rule 1 National Court Rules.

(2) Finality to litigation is paramount and, to that end, the court may make such orders that are necessary to attain justice without adverse consequences or prejudice to any party. Londish v Gulf Pacific Pty Ltd [1993] FCA 470; (1993) 45 FCR 128 at 139 adopted and applied.

Overseas cases cited:
Londish v Gulf Pacific Pty Ltd [1993] FCA 470; (1993) 45 FCR 128 at 139
Watson v Metropolitan (Peter) Passenger Transport Trust [1965] WAR 88 at 89
Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232 at [17]- [18]

Legislations cited:
National Court Rules Order 12 rule 1
Land Registration Act
Land Act

Legal text book:
Australian Civil Procedure, Cairns, Tenth Edition, Thomson Reciters

Counsel:
R. Rakatani, for the Plaintiff
S. Japson, for the First Defendant
E. Takaboy, for the Third, Fourth and Fifth Defendants

RULING

8^th August, 2022

1. KASSMAN J: This matter went to trial on 1^st December 2021. The Plaintiff Top Brat Trading Limited (“Top Brat”) sought declarations it was the lawful proprietor of certain land which it acquired from the Second Defendant Peter Virit (“Virit”). The First Defendant PNG Toner & Ink Supplies Limited (Toner”) claimed it lawfully acquired the same land from Virit at an earlier date and sought a declaration to that effect.
   

Pleadings and Evidence

2. Top Brat filed its Statement of Claim on 5 June 2016. Toner filed its Defence on 17 March 2021 and its Cross-Claim on 28 May 2021. Despite being given ample time, Virit failed to file a defence and did not file any affidavit. Virit also failed to appear at the trial. The Registrar of Titles, Department of Lands & Physical Planning and the State were joined as Defendants in the proceedings on 2 March 2022. Despite being given time, they also failed to file their defence and neither did they file any affidavit and appear at the trial. Top Brat also failed to file a defence to Toner’s cross-claim.
   
3. As a formality, the court now names as parties in this proceeding Ala Ane, Acting Registrar of Titles as the Third Defendant (“ROT”), Benjamin Samson, the Secretary for Department of Lands & Physical Planning as the Fourth Defendant (“the Secretary”) being the current incumbents of those positions. Further, the Independent State of Papua New Guinea will now be named as the Fifth Defendant (“the State”).
   
4. In evidence from an IPA extract dated 22 May 2020, Top Brat was incorporated on 1 December 2011, the two shareholders were Wengfeng Zheng and Liping Lin and the sole Director was Wengfeng Zheng. There was no IPA extract or other evidence as to the incorporation of Toner and the identity of the shareholders and directors of Toner. Counsel for Toner undertook to file and serve an affidavit annexing an IPA extract on Toner. He failed to do that.
   
5. On 16 June 2020, this court granted ex parte, Top Brat’s application restraining dealings on the lands at Portions 6317, 6318 and 6464. That interim ex parte order was extended on a number of occasions but was discharged on 11 December 2020 due to the failure of the Plaintiff to attend court for full inter parte argument.
   
6. The land in issue in the proceedings is located along the major road known as the Tokua Kokopo Corridor Road which originates at Tokua Airport and leads through Kokopo City. The improvements on the land include a building in which a supermarket operates namely Miracle Supermarket and adjacent to that building is a fuel station selling products of Island Petroleum.
   

Interlocutory Orders – issued but not complied with by the Registrar of Titles

7. On 12 April 2021, the court ordered the ROT provide to the parties by 26 April 2021, a copy of the files of the ROT in respect of portions 6317 and 6318, Milinch Kokopo, East New Britain Province. The court also granted Virit, ROT and the State further time to 26 April 2021 to file and serve their respective defences. As stated above, Virit, ROT and the State failed to file any defence and any affidavits and neither did they appear at the trial.
   
8. On 13 September 2021, this court issued the following Orders: (1) That the Registrar of Titles shall by letter to Top Brat Trading Limited by 27 September 2021 (copied to PNG Toner & Ink Supplies Limited) state what action the Registrar of Titles has taken in the matter since the letter of 31 July 2020. (2) The parties shall return for directions at 9:00am on Monday, 11 October 2021. The ROT failed to comply.
   

Evidence from Top Brat and Toner

9. Top Brat relied on three affidavits all sworn and filed by a Director of Top Brat a Liping Lin who is also knows as Kenny Lin. The first was filed on 5 June 2021 [document number 3], the second was filed on 16 August 2021 [document number 38] and the third was filed on 17 August 2021 [document number 39].
   
10. Toner relied on three affidavits all sworn by a Peter Andita who described himself as the Property Manager of Toner. The first affidavit was filed on 24 February 2021 [document number 24], the second affidavit was filed on 13 April 2021 [document number 29] and the third affidavit was filed on 26 November 2021 [document number 47]. There was no affidavit filed by a Director of Toner confirming Peter Andita had Toner’s authority to swear those affidavits and neither was there, explicit authorisation for counsel for Toner to rely on those affidavits.
    
11. By agreement of counsel for Top Brat and of counsel for Toner at trial, it was agreed the respective affidavits of the two parties would be tendered without objection and without cross-examination and parties would just make submissions on those affidavits. That was accepted by the court and the matter proceeded accordingly.
    
12. From the affidavit tendered for Top Brat, I note the following concerning Portion 6463 and Portion 6464:
    
    1. Certificate of Title was issued on 4 July 2017 by the Deputy ROT to Top Brat and identified in Volume 37 Folio 82 in respect of Portion 6463 covering 1.212 hectares and described in Survey Plan Catalogue No. 19/2081.
       
    2. Certificate of Title was issued on 4 July 2017 by the Deputy ROT to Top Brat and identified in Volume 37 Folio 8 (full detail unclear) in respect of Portion 6464 covering 0.111 hectares and described in Survey Plan Catalogue No. 19/2081.
       
    100. Top Brat has spent over K10 million for the purchase of the land and in erecting improvements all duly approved which are currently occupied by various commercial entities operating a supermarket, fuel service station and other retail trading businesses.
         
    4. Lease agreement between Top Brat as Lessor and Island Petroleum Limited as Lessee for lease of Portions 6463 and 6464 for a term of five years at annual rental of K180,000 payable monthly.
       
13. From the affidavits tendered for Top Brat, I also note the following concerning Portion 6317.
    
    1. By a Contract for Sale dated 27 June 2016, Top Brat purchased from Virit Portion 6317 for the sum of K100,000. The full name of Virit as vendor is stated but not the full name and title of the person who witnessed the vendor signing. For Top Brat, the common seal is affixed and the full names and titles of the director and witness are stated. The contract document was apparently stamped in the Stamp Duties Office and was approved by the Secretary.
       
    2. By the Transfer Instrument dated 27 June 2016, Virit transferred to Top Brat Portion 6317. The full name of Virit as transferor is stated as well as the full name and title of the person who witnessed the vendor signing and that appears to be the lawyer for the transferee Top Brat. The same lawyer also signed the Transfer Instrument as being accepted and certified correct for registration. The transfer instrument was apparently stamped in the Stamp Duties Office and was approved by the Secretary for Lands & Physical Planning.
       
    100. Certificate of Title was issued on 29 June 2016 by the Deputy ROT to Virit and identified in Volume 36 Folio 83 in respect of Portion 6317 covering 0.060 hectares and described in Survey Plan Catalogue No. 19/2051. The Certificate of Title was endorsed No. I. 18726 transfer to Top Brat which was produced on 25 July 2016 and entered 27 July 2016. A copy was also produced by Toner.
         
    4. Department of Lands & Physical Planning Official Receipt dated 29 June 2016 for payment of K200 for registration of the transfer to Top Brat.
       
14. From the affidavits tendered for Top Brat, I also note the following concerning Portion 6318.
    
    1. By a Contract for Sale dated 25 July 2016, Top Brat purchased from Virit Portion 6318 for the sum of K100,000. The full name of Virit as purchaser is stated but not the full name and title of the person who witnessed the vendor signing. For Top Brat, the common seal is affixed and the full names and titles of the director and witness are stated. The contract document was apparently stamped in the Stamp Duties Office was and approved by the Secretary.
       
    2. By the Transfer Instrument dated 25 July 2016, Virit transferred to Top Brat Portion 6318. The full name of Virit as transferor is stated as well as the full name and title of the person who witnessed the vendor signing and that appears to be the lawyer for the transferee Top Brat. The same lawyer also signed the Transfer Instrument as being accepted and certified correct for registration. The transfer instrument was apparently stamped in the Stamp Duties Office and was approved by the Secretary.
       
    100. Certificate of Title was issued on 29 June 2016 by the Deputy ROT to Virit and identified in Volume 36 Folio 84 in respect of Portion 6318 covering 0.059 hectares and described in Survey Plan Catalogue No. 19/2051. The Certificate of Title was endorsed No. I. 18836 transfer to Top Brat which was produced on 19 September 2016 and entered 22 September 2016. A copy was also produced by Toner.
         
    4. Department of Lands & Physical Planning Official Receipt dated 29 July 2016 for payment of K200 for registration of the transfer to Top Brat.
       
15. From the affidavits tendered for Toner, I note the following concerning both Portion 6317 and Portion 6318.
    
    1. By a Contract for Sale dated 2 April 2015, Toner purchased from Virit “Portion 6317C and Portion 6318C” being the whole of the land contained in State Lease Volume 36 Folio 83 and State Lease Volume 36 Folio 84 respectively” for the sum of K250,000. The contract also states in Part 9 of the Schedule “The total amount of K250,000 been wholly paid to the vendor and no balance remaining”. The full name and title of the person who signed for Toner is not stated. The common seal of Toner was not affixed. The contract document was apparently stamped in the Stamp Duties Office and approved by the Secretary for Lands & Physical Planning. A copy was also produced by Top Brat.
       
    2. There was no transfer instrument or instruments produced by Toner.
       
    100. Certificate of Title was issued on 4 February 2016 by the Deputy ROT to Virit and identified in Volume 36 Folio 83 in respect of Portion 6317 covering 0.060 hectares and described in Survey Plan Catalogue No. 19/2051. The Certificate of Title was endorsed No. I. 18389 transfer to Toner which was produced on 8 February 2016 and entered 9 February 2016.
         
    4. Certificate of Title was issued on 4 February 2016 by the Deputy ROT to Virit and identified in Volume 36 Folio (detail not clear) in respect of Portion 6318 covering 0.059 hectares and described in Survey Plan Catalogue No. 19/2051. The Certificate of Title was endorsed with a transfer to Toner which was produced on 8 February 2016 and entered 9 February 2016.
       

Discrepancies

16. The pleadings and the documents adduced by both Top Brat and Toner raise numerous issues for the court and the court is not prepared to further analyse and make findings on the pertinent facts and identify and determine the issues raised in the pleadings of both Top Brat and Toner.
    
17. From the beginning, critical parties were not named as defendants in the originating process and statement of claim and they were the ROT, the Secretary and the State. They should have been named and called on to address the issues as to authenticity of certificates of titles apparently issued to Top Brat (Portions 6463 and 6464) and to Virit (Portions 6317 and 6318) and apparently transferred on two separate occasions by Virit. On one occasion to Top Brat and on another occasion to Toner and Toner argues the transfer to Toner was registered “first in time”.
    
18. Form my understanding of the provisions of the Land Act and Land Registration Act, once State land is formally surveyed, the survey plan is registered and maintained by the Surveyor-General. Title is then issued to the lessee as proprietor and registered by the ROT following the grant by the Secretary as delegate of the Minister for Lands & Physical Planning. The authenticity of these official records is paramount to establishing indefeasibility of title.
    
19. The evidence refers to a total of six titles over six pieces of land identified as Portions 6463, 6464, 6317, 6318, 6317C and 6318C. Copies of certificates of title in respect of Portions 6463 and 6464 were produced by Top Brat showing Top Brat as the title holder. Copies of the certificates of title for Portions 6317 and 6318 were produced by Top Brat showing Top Brat as the title holder and also by Toner showing Toner as the title holder. Despite both Toner and Top Brat producing a copy of a contract for sale and purchase by Virit to Toner of Portions 6317C and 6318C, Toner failed to produce a copy of the certificate of title over Portions 6317C and 6318C.
    
20. There was no issue raised as to the capacity of Top Brat to sue or commence this proceeding. An IPA extract was producing confirming incorporation of Top Brat and the identity of the shareholders and directors of Top Brat. Toner failed to produce an IPA extract confirming incorporation of Toner and the identity of the shareholders and directors of Toner. Further, Toner relied on an affidavit of a person who was not identified as a director of Toner.
    
21. At trial, Toner relied on a written submission filed 30 November 2021. At trial, Top Brat undertook to file a written submission soon after trial but failed to do that.
    
22. These are just some of the critical issues that need to be properly addressed not only by Virit, Top Brat and Toner but also with finality by ROT, the Secretary and the State.
    

Re-opening the case

23. The cases of Top Brat and Toner closed following the tender of evidence by affidavits and the hearing of submissions on 1 December 2021. The parties are awaiting judgment of the court. The court has formed the view that all parties need to better assist the court with evidence and legal submissions that conclusively address the issues raised in Top Brat’s statement of claim and Toner’s defence and cross-claim. The court’s analysis of the evidence stated above demonstrates the unsatisfactory status of the respective claims and counter-claims or assertions and evidence adduced at trial which was all not tested by cross-examination. To proceed to a decision, in the circumstances, will leave the parties with no finality to this litigation.
    
24. Having recalled the matter for directions and expressed the views in court, the court has considered the National Court Rules and considers it appropriate, pursuant to Order 12 Rule 1, to make such orders as the nature of the case requires.
    
25. The authors in Australian Civil Procedure by Cairns, Tenth Edition said at page 632:
    

“In limited circumstances a party may be allowed to re-open a case after the close of evidence. Re-opening a case becomes relevant where material evidence that could affect the result of the trial is discovered after the case is closed. The court can recall any order or judgment before it is formally entered. In Watson v Metropolitan (Peter) Passenger Transport Trust [1965] WAR 88 at 89 Wolff CJ held that the right to re-open a case to admit new evidence existed: When the material interests of justice require it; Where the new evidence would probably produce a different result; and Where the evidence could not have been discovered before the trial”.

The Full Federal Court applied a more liberal test in Londish v Gulf Pacific Pty Ltd [1993] FCA 470; (1993) 45 FCR 128 at 139. It noted that the test Wolff CJ proposed imposed the same restraints on re-opening a case before the delivery of judgment as apply after the delivery of judgment. This qualification, in the opinion of the Full Court, was unnecessary for the decision before Wolff CJ. Where the application to re-open is made before the delivery of judgment, the court in Londish v Gulf Pacific Pty Ltd applied the same test as for leave to amend pleadings during a trial, namely, whatever is necessary to attain justice, including prejudice to the other party. Even though a case can be reopened, with the court’s concurrence, the circumstances must be exceptional. Finality is important in litigation. Reopening a case must not become a means of presenting what could have been presented at the trial, nor should presenting new material at a reopened case be conflated with appellate functions: Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232 at [17]- [18].

26. The proposal by the court to re-open is made before the delivery of judgment. I will apply the liberal test by making orders to do whatever is necessary to attain justice without adverse consequence or prejudice to any party. The court will invite all the parties to adduce further evidence and to address in examination in chief, cross-examination and re-examination all factual matters that are in contention. The parties must then make further submissions before the court makes findings on the critical facts and determines the issues raised. This should ensure there is finality to this litigation between the parties.
    
27. Having heard from Mr Raka for Top Brat, Mr Japson for Toner and Ms Takaboy of the Office of Solicitor-General in Kokopo, BY CONSENT of the Plaintiff, the First Defendant and the Third, Fourth and Fifth Defendants, THE COURT ORDERS:
    
    1. The court reopens this proceeding for further hearing on the evidence and submissions.
       
    2. The court now names as parties in this proceeding Ala Ane, Acting Registrar of Titles as the Third Defendant, Benjamin Samson, Secretary, Department Lands & Physical Planning as the Fourth Defendant and the Independent State of Papua New Guinea as the Fifth Defendant.
       
    3. The Plaintiff shall serve all court documents on the Second Defendant and file and serve an affidavit confirming compliance by 19 August 2022.
       
    4. The Plaintiff shall file and serve affidavits by 19 August 2022 confirming service of the Order of the Court of 2 March 2021 joining the Registrar of Titles and the State as the Third and Fourth Defendants respectively (at that time) and the Plaintiff shall then file and serve an affidavit confirming compliance immediately thereafter.
       
    5. The Second Defendant shall immediately instruct a lawyer to assist him in court in the proceedings and shall immediately communicate with the lawyers for the Plaintiff and the lawyers for each of the Defendants by 2 September 2022.
       
    6. The Plaintiff shall file and serve further affidavits by 19 August 2022.
       
    7. The First Defendant shall file and serve further affidavits by 2 September 2022.
       
    8. The Second Defendant shall file and serve affidavits by 2 September 2022.
       
    9. The Third, Fourth and Fifth Defendants shall file and serve affidavits (from the Surveyor-General, Registrar of Titles and Secretary for Lands & Physical Planning) by 15 September 2022.
       
    10. The Plaintiff shall file and serve extracts of submissions by 30 September 2022.
        
    11. The Defendants shall file and serve extracts of submissions by 14 October 2022.
        
    12. All deponents of affidavits filed and to be relied on by respective parties must be available to give sworn evidence and to be cross-examined at trial. If the deponents fail to attend, appropriate application must be made at trial as to the admission of their affidavits and the weight, if any, to be given to their evidence.
        
    13. All parties shall attend directions and listing at 9am on 7 November 2022.
        
    14. The Plaintiff shall file and serve this Order by 15 August 2022 and shall file an affidavit confirming compliance immediately thereafter.
        

Ruling accordingly:
____________________________________________________________________
Nelson Lawyer: Lawyer for the Plaintiff
Japson & Associates: Lawyer for the First Defendant
No legal representation for the Second Defendant
Solicitor-General: Lawyer for the Third, Fourth and Fifth Defendants