N9752

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.  1541 OF 2016

BETWEEN:
JONATHAN BOONE
Plaintiff

AND:
NATIONAL HOUSING ESTATE LIMITED
First Defendant

AND:
NATIONAL HOUSING CORPORATION
Second Defendant

AND:
JUNIA MARGARET KOMBOI
Third Defendant

Waigani: Tamade AJ
2022: 6 April, 20 & 24 June

NATIONAL COURT RULES – PRACTICE & PROCEDURE – order 10 rule 9A (15) – summary disposal – the court may summarily dispose of a matter for want of prosecution – plaintiff has not taken active steps since filing the proceedings or since the last activity on the file.

PRACTICE & PROCEDURE – summary disposal – order 12 division 4 – court’s discretion – the court can consider an application to dismiss proceedings in a summary manner outside order 12 Division 4 – even in matters pleading fraud – considerations – undue and inordinate delay – no reasonable explanation given by plaintiff – prejudice to the defendant.

Cases Cited:

The following cases are cited in the judgment:

Lord & Company v Inape [2014] SC1624
Lambu v Torato [2008] SC953
Chris v Kaeo [2019] PGNC 436; N8163 
Nodepa Plantation Ltd v Balat [2020] PGSC 25; SC1927 
Kave v Yakasa [2014] PGNC 298; N5692
Seravo v Bahafo [2001] PGNC 122; N2078 
Ahmadiyya Muslim Mission v BSP Ltd (2005) N2845

Counsel: 

Mr George Lau, for the Plaintiff
Mr Douglass Dupre, for the First and Second Defendants

24th June, 2022

1. 	TAMADE AJ: These are proceedings in which the Plaintiff claims that the First and Second Defendants facilitated for the subject property being Section 529, Allotment 60, Gerehu Stage 3B2, National Capital District to be sold to the Third Defendant when the Plaintiff had an interest to purchase the said property paying a deposit however whilst waiting for the completion of settlement, the property was sold to the Third Defendant. 

2. 	The Plaintiff claims that he had occupied the property and spent his own finances on maintaining and improving the subject property when the transaction between the Defendants took place. The Plaintiff, therefore, claims that the First and Second Defendants had fraudulently transferred the subject property to the Third Defendant and that the Third Defendant never fully paid for the purchase price of the property when the subject property was transferred to her. 

3. 	It has also come to the knowledge of the Court that the Third Defendant is deceased and that there are court proceedings filed to seek Letters of Administration over her estate. The Court, therefore, refused to hear Mr Olewale who informed the Court that he had appeared for the Third Defendant however in the absence of any instructions from the Administrator of the Third Defendant’s estate, the Court refused to hear Mr Olewale in this matter as he clearly has no instructions to act for the estate of the Third Defendant.

4. 	Mr Lau of the Plaintiff has sought leave to appear for the Plaintiff in this matter and on perusal of the file, it is noted that Niuage Lawyers acted for the Plaintiff earlier when the proceedings were filed, ceased to act and then later were instructed again to appear for the Plaintiff at the time the First and Second Defendants sought to move their motion seeking a dismissal of these proceedings.

5. 	Before the Court is an application by the First and Second Defendants seeking a dismissal of the proceedings pursuant to Order 10 Rule 9(A) (15) (2)(a) of the National Court Rules. The First and Second Defendants also seek that the proceedings be dismissed for being frivolous, vexatious and an embarrassment pursuant to Order 12 Rule 40 of the National Court Rules and or alternatively that the First and Second Defendants be granted leave to file their Defence out of time pursuant to Order 1 Rule 15, Order 7 Rule 6, and Order 12 Rule 1 of the National Court Rules.

6. 	It has also come to the knowledge of the Court that the Third Defendant is deceased and that there are court proceedings filed to seek Letters of Administration over her estate. The Court, therefore, refused to hear Mr Olewale who informed the Court that he had appeared for the Third Defendant however in the absence of any instructions from the Administrator of the Third Defendant’s estate, the Court refused to hear Mr Olewale in this matter as he clearly has no instructions to act for the estate of the Third Defendant.

7. 	The Affidavit in support of the application for dismissal by the First and Second Defendants by Mr Douglass Dupre deposes to facts that the Writ of Summons was filed on 28 November 2016 and that the First and Second Defendants filed their Notice of Intention to Defend om 17 July 2019 and have not filed a Defence to the claim. There were attempts to move an application seeking leave to file Defence out of time however that did not take place. Their application before the Court in the alternative to a dismissal to the proceedings for want of prosecution seeks leave to file a Defence to the claim.

8. 	Mr Dupre also deposes to the Plaintiff attempting to join another proceeding described as OS 208 of 2014 in which Anna Panao has sued the First Defendant, National Housing Estate over a property also owned by the First Defendant. The Plaintiff in these proceedings, therefore, claims that the other proceeding in OS 208 of 2014 was sold to him however the occupant Anna Panao has prolonged her occupation of that property. Be that as it may, those are different proceedings that don’t impinge on the application currently before the Court.

9. 	From a review of the endorsements on the Court file, the Third Defendant was granted leave to file a Defence out of time and a Defence by the Third Defendant was filed on 29 August 2017. 

10. 	From going through all the endorsements on the Court file since the filing of the proceedings in 2016, there is no sign of the Plaintiff taking active steps to diligently prosecute the matter. 

11. 	Mr Lau of the Plaintiff has filed an Affidavit on 7 March 2022. He states that his firm was engaged by the Plaintiff and filed the claim in 2016. His firm then ceased to act for the Plaintiff on 9 December 2019. Niuage Lawyers was then re-engaged by the Plaintiff on 22 February 2022. Mr Lau also deposes that the Plaintiff attempted to engage Suntin Lawyers however Suntin Lawyers never filed a Notice of Change of Lawyers. That to my mind is that Suntin Lawyers never took up the matter on behalf of the Plaintiff. Mr Lau states that on being reinstructed, he did not get the file from the Plaintiff as Suntin Lawyers did not give the file to Niuage Lawyers. Apart from this part of Mr Lau’s evidence being hearsay as what his client told him, there is no Affidavit by the Plaintiff himself as to what steps he took and or his lawyers took after the proceedings were filed in 2016.

12. 	I had posed the question to counsels in submissions in Court as to the impact of Order 12 Rule 37 of the National Court Rules that precludes a Claim based on fraud to be summarily determined as this is a claim based on fraud and whether it can be summarily dismissed pursuant to an application for dismissal for want of prosecution. 

13. 	The Plaintiff has relied on the case of Lord & Company v Inape [2014] SC 1624 in which the Supreme Court stated that:

“Although it was not explicitly identified, the primary judge made an order pursuant to Order 10 rule 9A (15) of the National Court Rules. “Summary disposal” of a matter pursuant to Order 10 Rule 9A (15) is not “summary judgment” within the meaning of Order 12 Division 4 National Court Rules, and Order 12 Rule 37(b) is not relevant to summary disposal of a matter in those circumstances.
It was open to his Honour to summarily dispose of the proceedings before him, notwithstanding that they were founded on allegations of fraud.”

14. 	The case of Lambu v Torato [2008] SC953 also differentiates Order 12 Rule 37 in matters pleading fraud that they do not come under the ambit of Order 12 Division 4 as default judgments do not come in the summary determination process under Order 12 Division 4.
15. 	The Plaintiff on the other hand relies on the case of Chris v Kaeo [2019] PGNC 436; N8163 (20 December 2019) in which Justice Shepherd considered a dismissal application under Order 12 Rule 40 which falls under Division 4 of Order 12. I find that this case is not relevant to the issue of an application brought outside Order 12.
16. 	The Plaintiff also relies on the case of Nodepa Plantation Ltd v Balat [2020] PGSC 25; SC1927 (14 February 2020) which the Supreme Court considered an application for summary judgment under Order 12 Rule 38 of the National Court Rules which clearly falls under Division 4 of Order 12. This case, therefore, does not discuss the summary disposals under Order 12 and outside of Order 12.
17. 	To my mind, the Supreme Court case of Lord & Company v Inape [2014] SC 1624 is right on point that a Court can consider an application to dismiss proceedings in a summary manner outside of the ambit of Order 12 Division 4 even though the proceeding may plead fraud. Taking into account that a matter that pleads fraud should be taken into account in the exercise of the Court’s discretion, I am of the view that the Court does have the power to dismiss a claim pursuant to Order 10 Rule 9(A) (15) (2)(a) of the National Court Rules as it is not precluded in Order 12 Rule 37(b) of the National Court Rules. 
18. 	An applicant, therefore, seeking dismissal of proceedings for want of prosecution under Order 10 Rule 9(A) (15) (2) (a) must show the following as per the case of Kave v Yakasa [2014] PGNC 298; N5692 (4 July 2014) in which Her Honour Justice Murray adopted the principles set out by Justice Kandakasi (as he then was) in the case of  Seravo v Bahafo [2001] PGNC 122; N2078 (21 March 2001) and expanded by Justice Cannings in the case of Ahmadiyya Muslim Mission v BSP Ltd (2005) N 2845 that:

a)	The Plaintiff's default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his claim;
b)	There is no reasonable explanation given by the plaintiff for the delay; and
c)	That the delay has caused injustice or prejudice to the defendant.
d)	The Court should specifically look at the conduct of the parties and their lawyers.
e)	The duty of the Court to give paramount consideration to the dispensation of justice.

19. 	I am satisfied that from the time the proceedings were filed in 2016, the Plaintiff has not taken any active and diligent steps to prosecute this matter. It has now been almost six years since the time proceedings were filed. There is no reasonable and convincing reason provided by the Plaintiff to explain the undue and inordinate delay in prosecuting this matter. The delay has therefore caused prejudice to the Defendants.  It is for these reasons and in the dispensation of justice that these proceedings shall be dismissed.
20. 	I, therefore, make the following orders:

i)	These proceedings are dismissed in its entirety.
ii)	The Plaintiff shall meet the First and Second Defendant’s costs of these proceedings to be taxed if not agreed.
Orders accordingly.
______________________________________________________________
Niuage Lawyers: Lawyers for the Plaintiff
Gagma Legal Services: Lawyers for the First and Second Defendants