Evangelical Lutheran Church of Papua New Guinea v David [2022] PGNC 490; N10011 (11 November 2022)

N10011

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 26 OF 2011

BETWEEN:
THE EVANGELICAL LUTHERAN CHURCH OF PAPUA NEW GUINEA
-Plaintiff-

AND:
JACK DAVID, YANGI BENSON, JEROT JUSTIN, MOSES BUAKI, TINO HOMBI, CATHERINE STEVEN, WENTI MENEVA, PETER LOIZE & ALL OTHER ILLEGAL OCCUPANTS OF PORTION 354, MILINCH MALAHANG FOURMIL HUON-CERTIFICATE OF TITLE, VOLUME 34, FOLIO 26
-First Defendants-

AND:
NOKA BUILDERS LIMITED, DAMBURA HOLDINGS LIMITED, COASTAL FREIGHTERS LIMITED
-Second Defendant-

Lae: Dowa, J
2022: 4^th & 11^th November

NOTICE OF MOTION – Application for Stay – Order 13 Rules 11&21 – National Court Rules – matter at enforcement stage – seeking to stay final decision of the Court based on matters occurring after the date of judgment – claim that new information surfaced suggesting there is bona fide dispute as to title of the Plaintiff’s property the subject of the writ for possession-exercise of discretion- Application was misconceived and thus refused.

Cases Cited:

Tzen Pacific Ltd -v- Inovest Ltd (2014) N5716
Deputy Commissioner of Taxation of the Commonwealth of Australia v Yii Ann Hii (2016) N7379
Kina Bank Ltd vs Baia (2021) N8894
Robson v National Airlines Corp (1983) PNGLR 476
Opi vs Telikom PNG Ltd (2020) N8290

Counsel:

S.Gor, for the Plaintiff
M. Murray, for the Defendants

RULING

11^th November, 2022

1. DOWA, J: The Defendants seek a stay of the execution of the writ of execution filed on 2^nd June 2022 pursuant to a substantive order of this court given 25^th March 2022.
   

Facts

2. The Plaintiff is a Christian church organisation established under the Lutheran Church of Papua New Guinea Act. It is the registered proprietor of land, described as Portion 354, Milinch of Malahang, Fourmil of Huon, Lae, Morobe Province, contained in State Lease Volume 34 Folio 26.
   
3. Portion 354 is a huge land containing an area of 500 hectares. It contains substantial improvements, which include Martin Luther Seminary, the Lutheran Shipping Compound, and the Lutheran Development Services office.
   
4. The Defendants are also residing on vacant parts of the land despite repeated requests by the Plaintiff to give up possession.
   
5. The Plaintiffs issued proceedings for possession which was contested by the defendants. On 25^th March 2022 this Court ordered that the defendants deliver up possession of the subject land within four (4) months. The defendants failed to deliver up possession, and after several reminder letters to the lawyers and the defendants, the Plaintiff proceeded to execute the orders by taking out a writ of possession on 2^nd June 2022. The Plaintiff is now in the process of executing the orders.
   
6. By a Notice of Motion, the Defendants seek amongst others, the following order:
   

“Pursuant to Order 13 Rules 11 and 21 of National Court Rules (2012 Consolidated), the writ of execution to enforce the judgment of court ordered on Wednesday 06^th April 2022 be stayed pending Lands Commission to complete its investigation on the customary Malahang land now described as Portion 354, Milinch Malahang Fourmil Huon-State Lease Volume 34 Folio 26.”

Issues

7. The main issue for consideration is whether valid grounds exist for the stay of the execution and enforcement of the orders of 25^th March 2022 under Order 13 Rules 11 & 21 of the National Court Rules.
   

Submissions of Counsel

8. Mr Murray, counsel for the defendants, submitted that after the decision in this matter, they received new information from the office of Land Titles Commission (LTC) that there is no record of a land described as Portion 354, Malahang, Lae registered in their office. That the issue of whether Portion 354 is customary land has just surfaced and remains to be determined. The Commissioner’s office is now taking preliminary steps to conduct a hearing. Mr Murray submitted that pending the Land Titles Commission hearing, the current orders be stayed.
   
9. Mr Gor, counsel for the Plaintiff, opposed the application, and submitted that the motion is misconceived. The information relied on by the Defendants, are not matters envisaged by Order 5 Rules 11 of the National Court Rules. Mr Gor submitted further that the Defendants have raised these issues before and were considered by the Court and are estopped from raising them under the principles of res judicata.
   

Law

10. The relevant law for the application is Order 13 Rules 11 and 21 of the National Court Rules which read:
    

“11. Matters occurring after judgement. (42/12)

(1) A person bound by a judgement may move the Court for a stay of execution of the judgement or for some other order, on the ground of matters occurring after the date on which the judgement takes effect and the Court may, on terms, make such order as the nature of the case requires.

(2) Sub-rule (1) does not affect the powers of the Court under Rule 21 (stay of execution).

“21. Stay of execution. (44/5)

The Court may, on terms, stay execution of a judgement or order.”

11. Order 13 Rule 11 of the NCR gives a court a discretion to grant a stay of the execution of a judgment on the ground of matters occurring after the date of the judgment taking effect. It has been held that the exercise of the court’s discretion is limited and not a license for parties to reopen their cases.
    
12. Hartshorn J, in the cases, Tzen Pacific Ltd -v- Inovest Ltd (2014) N5716, and Deputy Commissioner of Taxation of the Commonwealth of Australia v Yii Ann Hii (2016) N7379, held that a change in the locus standi or standing of a Plaintiff may qualify as being one of those matters occurring after the date on which the judgment takes effect.
    
13. In Kina Bank Ltd vs Baia (2021) N8894, Anis J, when considering an application under Order 13 Rule 11, makes a similar remark at paragraph 13 of his judgment:
    

...Events after judgment has been entered, such as, (i) in a case where a defendant has been adjudged insolvent or (ii), in the case of a company where it ceased to exist or has been declared insolvent, are some of the reasonable factors where the Court may be able to, if satisfied, exercise its discretion under Order 13 Rule 11....”

Consideration

14. In the present case, the defendants are seeking a stay of the orders so that they will remain on the property while pursuing a case against the Plaintiff through the office of the Land Titles Commission. The defendants want to rekindle their arguments that the subject land remains customary land and if the Land Titles Commission decides in their favour it will be too late to recover the improvements on the property if the current execution is allowed to be carried out. I find the defendants’ reasoning and their application misconceived. The events and information relied on by the Defendants are not matters envisaged by Order 13 Rule 11 of the National Court Rules. There is no change in the standing of the parties or the proceedings in any material way.
    
15. The Plaintiff is the registered proprietor having an indefeasible title under section 33 of the Land Registration Act. It filed proceedings seeking orders for possession since 2011. The matter was not heard until April 2021 and final decision made in March 2022. The court made the current orders after a contested trial. The Defendants had more than 11 years to raise these issues with the Land Titles Commission.
    
16. I refer to the final decision of this court given 22^nd March 2022 where the court made it plain in paragraphs 17 to 29 of the judgment, that if the Defendants dispute the Plaintiff’s title to the property, Portion 354, Malahang, it can do so in separate proceedings to be initiated by themselves. Insofar as the current proceedings are concerned, the proceedings are concluded, and nothing is outstanding. The defendants’ application should fail as it does not demonstrate a case for the court to exercise its discretion under Order 13 Rules 11 of the National Court Rules.
    
17. I also observe that this application is more like an application for interim injunction. One of the pertinent principles underpinning the law on interim injunctive orders is to preserve the status quo until final determination. Refer; Robson v National Airlines Corp (1983) PNGLR 476. The questions often asked is whether the action is frivolous or vexatious. Is there a serious question to be tried? Does the balance of convenience favor the grant of the interim orders? Is it in the interest of justice to grant and maintain the injunctive orders? (Refer: Employers Federation -v- PNG Waterside Workers (1982) N393 and Mondo -v- Moses (2018) N7563. In the present case, the Plaintiff’s substantive case was determined in its favour. The Defendants were represented and heard before the decision was made. If they were not happy with the decision, they had the right of appeal to the Supreme Court. They chose not to appeal, and the decision made by a Court of competent jurisdiction is binding and in force. It resolved any issues the Defendant/Applicants may have had.
    
18. There is nothing to preserve. It would be unjust or unreasonable to grant a stay in the circumstances. These proceedings have been dragging on for the last eleven years. Litigation must come to an end at some stage. The party to whom judgment has been granted should be allowed to enjoy the fruits of the judgment without much interruption within the bounds of law.
    
19. For the foregoing reasons, the defendants’ application is refused.
    

Costs

20. The Plaintiff submitted that cost be awarded to the Plaintiff on indemnity basis. It is a discretionary matter and must be exercised on proper principles.
    
21. In Opi v Telikom PNG Ltd (2020) N8290, his Honour, Shepherd J extensively reviewed decided cases to distinguish cost on party/party basis to that of cost on indemnity basis. His Honour summarized the principles that can be applied when considering the issue at paragraph 235 of his judgment which reads:
    

“235. The salient principles which I consider can be distilled from these Australian cases and the cases in our jurisdiction which I have referred to are these:

(1) The purpose of a costs award on an indemnity basis, although compensatory is primarily punitive. As was stated by the Supreme Court in the Rex Paki case, an award of costs on an indemnity basis can be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable or blameworthy that punishment is warranted.

(2) An award of costs on a solicitor/client basis is made to compensate the receiving party for the fees and disbursements that the lawyer charges the client, to the extent that those fees and disbursements, if taxed, were “reasonably” incurred. They do not include unreasonable or unusual fees and disbursements.

(3) Because a costs award on an indemnity basis is more generous than a costs award on a solicitor/client basis, its scope extends beyond that to which a receiving party is entitled had a solicitor/client cost been ordered. It is intended as a full indemnity for all costs and expenses incurred preparatory to and during the proceedings, not just the legal fees and associated disbursements charged by that party’s lawyer(s). So for example a receiving party, if an individual, is entitled to claim for loss of income or the value of time wasted when attending to matters relating to the proceedings. Similarly, a corporation or business can claim for the value of time spent by its officers and employees when attending to the proceedings.

(4) An award of costs on a solicitor/client basis is intended to compensate the receiving party for legal fees and disbursements charged by that party’s lawyer in having to unnecessarily defend proceedings which were an abuse of process, where there was no defence on the merits, where the other party failed to explore and exhaust all prospects of having the matter settled without the need for court action or delay, where there has been defiance by the other party in complying with court orders and or where the receiving party has generally had to incur unnecessary expense through unmeritorious litigation.

(5) Forewarning in writing or by electronic means should always be given that costs will be sought on a solicitor/client basis if proceedings are wrongly instituted and then dismissed as being without merit, or if the circumstances are sufficiently egregious to warrant not just the disapproval by the Court but also punishment, that costs will be sought on a full indemnity basis.”

22. This is an appropriate case for costs to be awarded on indemnity basis. Firstly, the application is clearly misconceived. Secondly the defendants were warned by letter dated 1^st November 2022, that if they fail in their application, costs would be sought on indemnity basis. For the foregoing reasons, I am inclined to award costs in favour of the Plaintiff on solicitor-client basis.
    

ORDERS

1. The Defendants’ application is dismissed.
   
2. The Defendants pay the Plaintiff’s costs of the application on indemnity basis to be taxed, if not agreed.
   
3. Time be abridged.

_____________________________________________________________________
Fiocco Nutley Lawyers: Lawyers for the Plaintiffs
Murray & Associates Lawyers: Lawyers for the Defendants