Onga v Bob [2022] PGNC 559; N10072 (7 December 2022)

N10072

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 886 OF 2015

BETWEEN

LANE KULT PILL ONGA
Plaintiff

AND

THERESIA BOB
First Defendant

AND

ALUA INVESTMENTS LIMITED
Second Defendant

Waigani: Shepherd J

2020: 12^th October
2022: 7^th December

PRACTICE & PROCEDURE – claim filed by original plaintiff alleging fraud by defendants in acquisition of title to land and alleging defendants hold title to land in trust for plaintiff – original plaintiff died after commencement of suit - son of original plaintiff continued the proceeding initially for benefit of himself and later for benefit of himself and other next of kin of deceased original plaintiff – challenge by defendants to standing of replacement plaintiff and to representative capacity of replacement plaintiff – requirements for standing to continue proceeding for beneficiaries of deceased intestate estate – substituted plaintiff must be personal representative of deceased and must obtain grant of letters of administration from National Court – replacement plaintiff failed to obtain grant of letters of administration – requirements for representative action – replacement plaintiff failed to produce proper evidence of authorities from co-plaintiffs for him to represent them - no evidence of appointment of lawyer to act for co-plaintiffs – proceeding dismissed.

Cases Cited:
Angula v Barrick (PNG) Ltd (2014) N5750
Kambao v Yakka (2016) N6514
Laki v Alaluku [2000] PNGLR 392
Mamkuni v Ly Cuong-Long and Jant Ltd (2011) N4674
Medaing v Ramu Nico Management (MCC) Ltd (2010) N4158
Malewo v Faulkner (2009) SC960
Mali v Independent State of Papua New Guinea [2002] PNGLR 548
Owa v Popuna (2015) N6111
Public Curator v Bank of South Pacific Limited (2006) SC832
Public Curator of PNG v Konze Kara (2014) SC1420
Philip v Tiliyago (2019) SC1783
Re Estate of Joseph Kubak Demas (2017) N7044
Singut v Kinamun (2003) N2499
Toligai v Chan (2012) N4842
Taila v Silas (2018) N7334
Wari v Dekenai Construction Ltd (2017) N7649

Legislation:
Land Registration Act 1981: ss. 2(1), 2(2), 171.
National Court Rules: Order 5 Rules 10(1), 11(1)(d), 13(1), 16, 19; Order 19 Rules 24, 25(1)(b)(vii), 25(1)(c), 25(3), 32(4); Forms 78 and 80 of Schedule 1.
Public Curator Act Ch. 81: ss.4(1), 10, 14, 16.
Trustee Companies Act Ch. 288: s.7.
Wills, Probate and Administration Act Ch. 291: ss. 1, 44, 45(2), 66, 81(2), 84.
Wrongs (Miscellaneous Provisions) Act Ch. 297: ss.34, 38.

Counsel
Mr Christopher Kup-Ogut, for the Plaintiff
Mr Andrew Kuria, for the Defendants

DECISION

7^th December, 2022

1. SHEPHERD J: This case concerns disputed title to a residential property at Boroko, National Capital District. The lead plaintiff seeks declarations from the Court that title to the property is held by the second defendant on trust for the lead plaintiff and other beneficiaries of the intestate estate of the late Gabriel Pill Onga. It is alleged that title to the property was allegedly acquired by the second defendant by fraudulent means and that title is held by the second defendant on trust for certain beneficiaries of the estate. The lead plaintiff seeks, among others, a consequential order that title to the property be transferred to him and other beneficiaries of the estate.
   

BACKGROUND

2. The property in question is situated at Allotment 123 Section 42, Laurabada Avenue, Boroko, National Capital District being all the land described in State Residence Lease Volume 53 Folio 203 together with a substantial residence and other improvements constructed thereon (the Property).
   
3. When this proceeding was commenced on 3 July 2015 the first plaintiff was Gabriel Pill Onga, now the late Gabriel Pill Onga (the deceased), who passed away on 27 March 2016.
   
4. At commencement of suit in July 2015, the second plaintiff was cited in this proceeding as Lane Kult Pill Onga (Lane), the eldest son of the deceased. It seems that at that stage Lane had no identifiable cause of action against the defendants and that the only reason he was joined as a co-plaintiff in this proceeding at its outset was because the initial statement of claim pleaded that as he was the eldest son of his father who was then still alive, he was the beneficiary to “all properties owned by the First Plaintiff”.^[1]
   
5. Theresia Bob, the first defendant (Theresia), is the niece of the deceased. She is an accountant by profession. Alua Investments Limited, the second defendant (Alua), is a company owned by the first defendant which was incorporated on 18 May 2009 and which is trading under the name or style of TB Accountants. Theresia is the sole shareholder and sole director of Alua.
   
6. Title to the Property is currently registered in the name of Alua. The Property is subject to mortgage no. S.70153 to Australia and New Zealand Banking Group (PNG) Ltd (ANZ Bank) which was registered against the subject State Lease Volume 53 Folio 203 on 22 May 2015.
   
7. The Property was initially owned by the National Housing Corporation (NHC) and was leased by the NHC to the deceased in 1986. The deceased, several of his four wives and numerous of their children, including the current lead plaintiff, occupied the Property as their family home for many years, the deceased paying rent to the NHC.
   
8. Theresia was working in New Zealand from 2006 to 2009. In early 2009 the deceased was in ill health. He urged Theresia to return to Papua New Guinea and stay with him and his other family members at the Property and to assist him to purchase the Property from the NHC because the deceased had insufficient savings of his own to enable him to pay the purchase price of K357,250 and incidental expenses required by the NHC. The deceased was concerned that if he did not purchase the Property, the NHC would sell it to some other purchaser and he and various of his family members would be evicted from what by then was considered to be the family home.
   
9. Theresia was reluctant to return to Papua New Guinea at first but she relented because of family pressure. Theresia and her children returned to Port Moresby and took up residence at the Property with the deceased and other family members in April 2009.
   
10. By letter dated 27 May 2009 the NHC offered to sell the Property to the deceased under the NHC’s Cash Sale Scheme for the sum of K357,250. with a 10% deposit of K35,725 and legal and valuation fees totalling K1,160, a total of K36,885, to be paid within 14 days.
    
11. According to Theresia, it was agreed by the deceased in or about June 2009 that Theresia would fund the purchase on the basis that the NHC would transfer title to the Property to the deceased, who would then in turn simultaneously transfer title to Theresia, this dual transaction to be funded by a mortgage by Theresia over the Property obtained from the ANZ Bank and paid on settlement by the ANZ Bank via Theresia to the NHC. This arrangement was subsequently varied by agreement between the deceased and Theresia such that the deceased would transfer title to the Property to Alua rather than to Theresia. This was because the ANZ Bank required Alua to be the mortgagee rather than Theresia personally and therefore Alua had to have title to the Property to be able to lawfully mortgage it to the ANZ Bank.
    
12. During July and August 2009 Theresia negotiated with the NHC in an endeavour to try to obtain a lower purchase price for the property for the deceased but the NHC would not budge. So on 9 September 2009 Lane’s mother Joanne Noma Pill, the deceased’s first wife who was then living in Australia, apparently borrowed the sum of K36,885 from friends which was then paid to the NHC for the 10% deposit for the Property and associated legal and valuation fees to secure the purchase. A week later Lane and his mother Joanne demanded that Theresia refund to Joanne the whole of that deposit, of which the sum of K31,885 has subsequently been paid by Alua to Lane and his mother, leaving a balance of K5,000 which is still outstanding but which has not been paid by Alua because of the complications which then ensued and which gave rise to this proceeding.
    
13. Following payment of the deposit and related fees totalling K36,885 on 9 September 2009, almost three years later, as a result of Theresia’s negotiations, the NHC by letter dated 20 June 2012 to the deceased agreed to allow a deduction of K39,481 from the sale price of K357,250 for the Property on account of past rent already paid by the deceased, which when credited against the sale price along with a further credit for the deposit and fees of K36,885 already paid left a balance of K280,883 required to be paid to settle NHC’s sale of the Property to the deceased and the deceased’s simultaneous onward transfer of title to the Property to Alua.
    
14. By letter dated 10 October 2012 the deceased accepted the NHC’s revised offer to settle his purchase of the Property on payment of a net balance of K280,883.
    
15. Nandape Lawyers were engaged by Theresia to approve the NHC’s transfer instrument and contract for sale of the Property to the deceased for the total sum of K357,250. Nandape Lawyers were also instructed to prepare a separate transfer instrument and contract for sale between the deceased as transferor and initially Theresia, but this conveyancing documentation was later changed to a transfer instrument and contract for sale between the deceased and Alua because, as already noted, the ANZ Bank insisted that Alua be the mortgagee, not Theresia, which meant that Alu had to obtain title to the Property in order to secure funding. The deceased signed the contract for sale between the NHC and himself on 26 January 2013. The onward contract for sale between himself and Alua was signed by the deceased several months later on 15 May 2013.
    
16. Ad valorem stamp duty of K17,872 was assessed on the two contracts for sale and this was paid by Alua to the Stamp Duties Office by bank cheque on 27 May 2013.
    
17. Settlement of the deceased’s purchase of the Property from the NHC and the deceased’s simultaneous onward transfer of title to Alua took place on 26 July 2013 with funding of K280,000 sourced from Alua’s mortgage to the ANZ Bank. The balance of the settlement monies for the purchase of the Property was paid by Alua.
    
18. Theresia asserts that in addition to the settlement monies paid by Alua to the NHC to obtain title to the Property and Alua’s subsequent servicing of the mortgage and payment of insurance premiums for the Property since July 2013, all of those payments having been made without any financial assistance from the lead plaintiff and other adult children of the deceased, Alua has also spent a considerable but unquantified amount of money for renovations needed at the Property.
    
19. After settlement of the dual transactions took place on 26 July 2013, Alua offered at some point in 2014 and again in 2015 to sell the Property back to the deceased for K300,000 if members of the family could raise the funds to repay Alua. The deceased and family members refused to accept that offer. Theresia and her children had by this stage already departed the Property and were residing elsewhere. The deceased allegedly said that Alua had to pay K1 million to him if Alua wanted to retain registered title to the Property and obtain vacant possession of the property in order to rent out the property at K1,500 per month to service Alua’s mortgage to the ANZ Bank. Theresia considered this response to be absurd in view of the previous arrangements which had been agreed to by the deceased back in 2013. It seems that Theresia, or rather Alua, continued to service the mortgage over the Property to the ANZ Bank without any financial assistance at all from the deceased’s family. An impasse occurred and when eviction proceedings were threatened by Theresia and Alua, this prompted the deceased and Lane to commence this current proceeding in WS No. 886 of 2015 on 3 July 2015, claiming at a time when the deceased was still alive that Alua had obtained title to the property by fraud and that Alua has been holding title to the Property on trust for the deceased and indirectly for Lane.
    

PROCEDURAL HISTORY

20. The writ in WS No. 886 of 2015 was filed by Lane on 3 July 2015 “for himself and the First Plaintiff”. At that juncture there was no lawyer on the record acting for Lane and his father.
    
21. On 16 July 2015 Parker Legal filed a notice of intention to defend for Theresia and Alua together with a defence and cross-claim. The defence recited the arrangements between the deceased and the defendants which had resulted in the transfer of title to the Property from the NHC to the deceased and the simultaneous onward transfer of title from the deceased to Alua. The defendants’ cross-claim sought a declaration that Alua was the duly registered proprietor of the Property and an order that the plaintiffs and others residing on the Property be required to vacate it within 7 days. In addition, the defendant’s cross-claim sought damages payable by the two plaintiffs at that stage for loss of rental for the Property at the rate of K1,500 per week for the period commencing 15 May 2013, being the date the contract of sale between the deceased and Alua was signed, and date of judgment by the Court.
    
22. On 20 July 2015 Ninai Lawyers filed a notice of appearance for the plaintiffs, who at that juncture were named as first plaintiff “Gabriel Pill Onga” and second plaintiff “Lane Kult Pill Onga”. The notice of appearance was signed by Mr Christopher Kup-Ogut on behalf of Ninai Lawyers.
    
23. The next day, 21 July 2015, Kandakasi J (as he then was) directed the parties to enter into settlement negotiations with the proviso that if settlement could not be reached then the parties were to settle terms for a mediation order to be made by the Court.
    
24. On 13 August 2015 Ninai Lawyers filed an amended statement of claim for the first and second plaintiffs which corrected some factual errors made in the initial statement of claim and expanded on other matters, but which did not materially alter the relief sought in the plaintiff’s first statement of claim endorsed on the writ filed on 3 July 2015.
    
25. As noted before, the first plaintiff then passed away on 27 March 2016, almost 9 months after this suit was instituted, leaving Lane as the surviving sole plaintiff for the purpose of this proceeding.
    
26. On 20 June 2016 a mediation order was made in this suit by Kandakasi J with the consent of Lane, Theresia and Alua. The mediation order included terms that Lane be substituted for the deceased as the sole plaintiff in this suit and that he was to file an amended writ of summons within 7 days to reflect this change. The mediation order also directed that the case was to be relisted for mediation by external mediator Ms Mayambo Peipul, the mediation to take place within 3 weeks and for the mediation process to conclude on 6 July 2016. The mediation order of 20 June 2016 also directed that the proceeding was to return before the Court on 19 July 2016 for the Court to make orders appropriate to the outcome of the mediation.
    
27. A variation of the mediation order was made by Kandakasi J by consent of the parties on 18 August 2016 whereby the mediation was to be conducted by external mediator Mr Andrew Kwimberi on 28 and 29 August 2016 and was to return to Court on 6 September 2016.
    
28. The mediation was not successful. On 22 September 2016 Ninai Lawyers late-filed an amended writ of summons and a further amended statement of claim pursuant to term 13 of the mediation order made by Kandakasi J on 20 June 2016.
    
29. At some point after May 2017 Mr Kup-Ogut established his own law firm under the name Kup & Co Lawyers. Mr Kup-Ogut has continued to act for Lane in this suit, although the Court’s record shows that no formal notice of change of lawyers from the principal of Ninai Lawyers to Kup & Co Lawyers has ever been filed.
    
30. After a protracted series of interlocutory motions and adjournments, on 22 October 2018 Kandakasi J ordered, with the consent of all parties, that the case be tentatively listed for trial on 16 November 2018 “before His Honour Shepherd J or on a date convenient to his Honour” and that the parties were to attend before the Court for pre-trial conference on 8 November 2018.^[2]
    
31. The case was re-listed and came before me on 23 November 2018. An order was made on that occasion which gave detailed directions for the parties to file a trial book containing all amended pleadings, affidavits, the parties’ statement of agreed and disputed facts and issues and any other documents to be relied upon by the parties at trial. The trial book was to be certified correct by the parties and filed by 20 December 2018. Submissions were to be filed for the parties by 7 February 2019 and the case was adjourned to 8 February 2019 at 9.30 am for pre-trial conference to confirm that the parties were ready for trial on 14 February 2019.
    
32. On 3 December 2018 a notice of change of lawyers for the defendants was filed which notified that Kuria Lawyers had been appointed to act for the defendants in lieu of Parker Legal.
    
33. The parties’ lawyers failed to file the trial book by 20 December 2018 in breach of the directions order made on 23 November 2018.
    
34. On 22 January 2019 Kuria Lawyers filed an affidavit sworn by Theresia which included, among other things, copies of Bank of South Pacific Ltd deposit slips for remittance of monies:
    • (a) totalling approximately K31,000 paid by the defendants between September 2010 and September 2014 to Lane and his mother Joanne Noma Pill at their request by way of reimbursement on account of the deposit of approximately K36,000 initially paid for the deceased to the NHC, leaving a balance to repay of K5,000; and
      
    • (b) further monies paid by the defendants to the deceased prior to his death, these payments having been made on a regular basis at an average of K500 per fortnight between May 2009 and September 2015.
      
35. When the case returned before the Court on 8 February 2019 for pre-trial conference, there was no appearance by counsel from Kup & Co Lawyers or from Kuria Lawyers. As both counsel had failed to file their respective submissions by 7 February 2019 in further breach of the order of 23 November 2018, on 8 February 2019 the trial date of 14 February 2019 was vacated and the case was adjourned generally to the Registry.
    
36. Four months later, Kup & Co Lawyers filed the trial book on 3 June 2019. The trial book comprises a total of 488 pages of documents divided between 2 volumes. The trial book was certified correct by counsel Mr Kup-Ogut for Lane on 24 May 2019 and by counsel Mr Kuria for the defendants on 30 May 2019.
    
37. The case then went into limbo at the Registry for more than 6 months until 15 January 2020, which is when Kuria Lawyers filed a notice of motion for the defendant’s seeking orders that the case be summarily dismissed on various grounds, including dismissal for want of prosecution and because no reasonable cause of action was said to have been disclosed.
    
38. Shortly after Kuria lawyers filed the defendants’ notice of motion on 15 January 2020, the Covid-19 pandemic manifested itself in Papua New Guinea. The National and Supreme Courts went into partial lockdown for an extended period with only the most urgent of cases being heard. The present case was eventually re-listed to come back before this Court on 15 September 2020.
    
39. On 15 September 2020 Mr Kup-Ogut and Mr Kuria both appeared before the Court for their respective clients. Leave was granted to the defendants to withdraw their notice of motion filed on 15 January 2020 so that the case could progress to trial. Counsel for the parties indicated that they were both ready to proceed to substantive trial, which was fixed by order of the Court for 12 October 2020. The parties counsel were directed by that order to file their written submissions by 7 October 2020 and for pre-trial conference to take place on 15 September 2020.
    
40. However, one of the procedural issues which was then raised by Mr Kuria at the pre-trial hearing on 15 September 2020 was whether, Lane was representing only himself in this proceeding or if he was representing other beneficiaries in the estate of the deceased. Mr Kuria asserted that Lane’s standing to continue to pursue this proceeding following the death of the deceased 27 March 2016 was unclear on Lane’s amended pleadings. The order which was made by the Court on 15 September 2020 therefore included a direction that Lane was to further amend his amended statement of claim yet again “to clarify in what capacity he is pursuing this suit and if he is representing any other beneficiary in the Estate of the late Gabriel Pill Onga”.
    
41. On 30 September 2020 a further amended statement of claim was filed by Kup & Co. Lawyers for Lane. This time the plaintiff was cited as “Lane Kult Pill Onga for himself and on behalf of the named beneficiaries of the Estate of Gabriel Phil Onga” (sic). The further amended statement of claim has annexed to it a short list with the names of eight beneficiaries of the estate of the deceased comprising one of the wives of the deceased, four adult children of the deceased and three children of the deceased who, according to the list, as at 2016 were still in their minority.
    
42. Kuria Lawyers reacted promptly to Lane’s further amended statement of claim by filing a further amended defence for the defendants on 2 October 2020. The further amended defence gave a comprehensive response to the further amended statement of claim, and at paragraph 2 squarely raised the issue as to whether any form of administration of the estate of the deceased had ever been granted to Lane.
    
43. A reply to the defendants’ further amended defence was then filed for Lane by Kup & Co Lawyers on 7 October 2020. The reply did not address the issue raised by the defendants’ as to whether Lane had been granted any form of administration of the estate of the deceased. Paragraph 2 of Lane’s reply filed on 7 October 2020 simply repeated that he is the son of the deceased and that he is entitled to benefit from the Property.
    
44. The trial of this matter was conducted on 12 October 2020. Lane and one of his step-mothers, Mrs Ere Pill, were cross-examined by Mr Kuria on their affidavits. Both counsel then relied on their respective written submissions which were augmented by oral argument, following which the Court’s decision was reserved.
    

ISSUES

45. Having perused the pleadings and having heard the evidence and submissions made for each of the parties in this case, I consider that the issues that fall for determination by the Court are these:
    

(1) Does Lane as lead plaintiff have standing to represent himself and his eight co-plaintiffs in this proceeding? If not, this proceeding must be dismissed.

(2) If Lane does have such standing, does the evidence support his claims for relief?

CONSIDERATION

46. Where a party to a proceeding dies before its conclusion, death does not, in most cases, bring an end to that party’s cause of action. Survival of a party’s cause of action after death is statutorily provided for in s.34 of the Wrongs (Miscellaneous Provisions) Act Ch. 297. Section 34 of the Act relevantly provides:

34. Effect of death on certain causes of action

(1) Subject to this section, on the death of a person ... all causes of action subsisting against or vested in him survive against or for the benefit of, as the case may be, his estate.

(2) Subsection (1) does not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other, or claims for damages on the ground of adultery.

...

(4) No proceedings are maintainable in respect of a cause of action in tort that, by virtue of Subsection (1), has survived against the estate of a deceased person unless—

(a) proceedings against him in respect of the cause of action were pending at the date of his death; or

(b) proceedings are taken in respect of the cause of action not later than 12 months after his personal representative took out representation.

47. It is therefore clear from s.34(1) and (2) of the Act that a cause of action will survive the demise of a party to litigation unless that cause of action is based on defamation, seduction or matters adversely affecting spousal relationships.
    
48. In the present instance, the deceased’s cause of action against the defendants as pleaded in the statement of claim endorsed on the writ of summons filed on 3 July 2015 was initially based on alleged fraud. However, prior to the deceased’s death on 27 March 2016, the statement of claim was amended on 13 August 2015 to plead breach of trust, constructive or otherwise, as a second cause of action. Following the death of the deceased, these two causes of action continued to form the basis for the further amended statement of claim filed on 30 September 2020 for Lane after questions had been raised by Mr Kuria for the defendants as to whether Lane, as the original second plaintiff, had standing to be substituted for the deceased as first plaintiff. Putting aside the issue of Lane’s standing for the moment, I have no difficulty in finding that the deceased’s two causes of action most certainly survived his death by operation of s.34(1) of the Wrongs (Miscellaneous Provisions) Act.
    
49. However, reverting to the question as to whether Lane has standing to have been substituted for the deceased in this proceeding so as to represent himself and certain other beneficiaries of the deceased’s estate, the starting point for consideration of this issue is Order 5 Rules 10(1) and 11(1)(d) of the National Court Rules, which relevantly state:

10. Death, transmission, etc.

(1) Where a party dies or becomes bankrupt but a cause of action in the proceedings survives, the proceedings shall not abate by reason of the death or bankruptcy.

(2) Where the interest or liability of a party passes by assignment, transmission, devolution or otherwise to another person, the Court may make orders for the addition, removal or rearrangement of parties and may make orders for the further conduct of the proceedings.

(3) The Court may act under Sub-rule (2) on application by a party or by a person to whom the interest or liability passes or of its own motion.

11(1) Without limiting the generality of the powers of the Court under Rules 8, 9 and 10, orders under those Rules for the further conduct of the proceedings may include orders relating to—

...

(d) substitution of one party for another party or a former party.

[underlining added]

50. When a party has died, who then is competent for the purposes of Order 5 Rules 10(2) and 11(1)(d) of the National Court Rules to be substituted for the deceased party? Is a beneficiary in the estate of the deceased party lawfully competent to fulfill that role solely on his or her assertion of entitlement to a share of the assets of the estate of the deceased party?
    
51. Order 5 Rule 16 of the National Court Rules is a corollary to Order 5 Rules 10 and 11. The relevant content of Order 5 Rule 16 is as follows:

16. Deceased person

(1) Where in any proceedings it appears to the Court ... that the estate of a deceased person is interested in any matter in question in the proceedings, and that he has no personal representative, the Court may, on the application of any party—

...

(c) by order (with the consent of the person appointed) appoint a person to represent that estate for the purposes of the proceedings.

52. Order 5 Rule 16 does not specify the range of persons or entities who can be appointed to represent the estate of a deceased person. The person or entity appointed by the Court pursuant to Order 5 Rule 16 to represent the estate of a deceased person may be but is not necessarily the applicant for the order of appointment. However, it is axiomatic that the Court must be satisfied that the person or entity who is appointed pursuant to Order 5 Rule 16 to represent the estate of the deceased person in litigation must have valid power and capacity to carry out that representation.
    
53. In Angula v Barrick (PNG) Ltd (2014) N5750 the plaintiff’s claim against the defendant was for wrongful termination of employment and for damages for illness or injury sustained during the course of the plaintiff’s employment by the defendant. Following the death of the plaintiff, the plaintiff’s wife applied pursuant to Order 5 Rule 11 of the National Court Rules for an order that she be appointed by the Court to substitute for her late husband for the purpose of the proceedings. Kassman J, in his ruling on the wife’s application, expressly referred to Order 5 Rule 16 of the National Court Rules and drew attention to the term “personal representative” where that wording occurs in that Rule. His Honour said this:
    

“ 13. The term “personal representative” is not defined in the National Court Rules. [However under] Section 1 of the Wills, Probate and Administration Act c 291, that phrase is defined to mean “the executor, whether original or by representation, or administrator of a deceased person”.

14. The question that arises is, did the Plaintiff deceased leave a Will appointing a personal representative? If not, then does the Estate and all rights flowing vest in the Public Curator? There has been no evidence or submission made in this regard.

15. These are matters that need to be addressed by “the Plaintiff” before the Court determines the application ...”.
    
54. Kassman J was clearly concerned in Angula v Barrick that the person to be appointed to substitute for the deceased plaintiff should be the personal representative of the deceased according to law, and that the personal representative in the circumstances of that case was not necessarily the plaintiff widow but could be the Public Curator or possibly some other person or entity.
    

Meaning of “personal representative”

55. Section 1 of the Wills, Probate and Administration Act Ch. 291 (WPA Act) has a series of important definitions:
    • “personal representative” means the executor of a will or the administrator [of the estate] of a deceased person.
    • “administrator” means a person to whom administration is granted.
    • “administration”, in relation to the intestate estate of a deceased person, means letters of administration.
    • “representation” means probate of a will or administration (i.e. letters of administration).
      
56. Section 38 of the WPA Act grants jurisdiction to the National Court to grant probate of the will or letters of administration of the estate of any deceased person leaving property within Papua New Guinea.
    
57. Section 117 of the Land Registration Act Ch. 191 defines the term “personal representative” for the purposes of Division 2 of Part XII of the Act, which deals with the transmission of interests in land following the death of a registered proprietor, as follows:
    

117. ... “personal representative”, in relation to a deceased person, means—

(a) the executor of the will of the deceased; or

(b) the administrator of the estate of the deceased; or

(c) subject to the granting of an order to administer—the Public Curator.

[underlining added]

58. Section 2(1) of the Land Registration Act defines the term “transmission” for the purposes of the Act:

“transmission” means the acquirement of title to or an interest in land consequent on the death or insolvency of an owner.

59. Section 2(2) of the Land Registration Act provides that a reference in the Act to a person having an interest in land includes “the executors, administrators and assigns of that person”.
    
60. Who then is competent and has standing to apply to the National Court for grant of letters of administration (administration) of the intestate estate of a deceased person? Is it only the Public Curator?
    
61. I find that there are at least four classes of persons or entities to whom grant of administration of an intestate estate may be made by the National Court, all of which classes come within the rubric of “personal representative”:
    

(1) an entitled beneficiary of the deceased claiming recognition by the Court as being the deceased’s personal representative for the purpose of grant of administration;

(2) a creditor of the deceased;

(3) the Public Curator;

(4) a trustee company.

62. A description of each of these four classes of “personal representatives” is set out below.
    

(1) Beneficiary claiming grant of administration as “personal representative” of deceased

63. When considering if an applicant is entitled to grant of administration, the National Court has regard to the applicant’s solvency, the applicant’s capacity and ability to administer the estate and the rights of all persons interested in the estate, especially where there could be a conflict of interest to the detriment of other beneficiaries where a potential administrator of an intestate estate is also a beneficiary.
    
64. The Court is particularly cautious to ensure that all persons having an interest in, or a claim against, the intestate estate of a deceased person are given advance public notice by any applicant for grant of administration that such application is about to be made to the Court. That this is so is reflected by the fact that one of the mandatory requirements which an applicant for administration must comply with is Order 19 Rule 25(1)(c) of the National Court Rules, which requires proof by affidavit of newspaper publication by the applicant of a notice of intention to apply for administration in Form 78 of Schedule 1 of the National Court Rules. The purpose of that publication in the press is to give notice by the applicant to all potential beneficiaries in the estate, creditors of the deceased and other persons or entities entitled to apply for grant of administration that the applicant will shortly be applying to the National Court for grant of administration. Any person or entity having grounds to object to sole grant of administration to the applicant then has, by virtue of publication of the notice, opportunity to oppose the application or to seek joinder or some other order appropriate to the circumstances of the case when the application for grant of administration comes before the Court.
    
65. Furthermore, it is a requirement under Order 19 Rule 25(1)(b)(vii) of the National Court Rules that an applicant for administration of an intestate estate must inform the Court by affidavit in Form 80, among many other things, “of the names and ages of the persons entitled to distribution of the estate (annexing appropriate marriage, birth, death or other certificate[s])”. This particular requirement is usually unnecessary where application for probate of a valid will of a deceased person is made under Order 19 Rule 24 of the National Court Rules for the obvious reason that the deceased’s entitled beneficiaries are named in the deceased’s will. But in an intestacy situation the Court has no foreknowledge as to who the potential beneficiaries in a deceased person’s estate are, which is why the Court requires extensive particulars to be given by an applicant for administration of all persons entitled to participate in distribution of the estate.
    
66. This disclosure requirement is reinforced by Order 19 Rule 25(3) of the National Court Rules which provides:

19(3) Where the grant is applied for by less than all the persons who are in Papua New Guinea and are entitled to a grant of administration, the application must be supported by—

(a) the consent, in Form 81, of each such person entitled to a grant but not applying for the grant, to the grant being made to the plaintiff, with an affidavit verifying the consent endorsed on the document containing the consent; or

(b) an affidavit as to service, not less than 14 days before the proceedings are commenced, on each of those persons whose consent to the grant is not filed, of notice of intention to make the application.

67. Where an application for grant of administration is contested, a further factor which the Court will consider when deciding who should be granted administration in an intestacy situation is the proportion of the estate to which each beneficiary is entitled. The law of intestacy has a system of priorities which, while it does not give any person claiming to be recognized as the personal representative of the deceased an absolute right to a grant, does give some guidance as to which beneficiary or beneficiaries should be considered for grant of administration, especially where conflict of interest could be in issue. Those priorities are reflected in the provisions of Division 6 of Part III of the WPA Act which govern the distribution of assets in intestate estates.
    
68. Section 84 of the WPA Act, which comes within Division 6 of Part III of the Act relating to distribution of an intestate deceased’s residuary estate, sets out what are commonly known as the rules of intestacy. For instance, if the deceased is survived by a spouse and children (including illegitimate children) then the spouse is entitled to receive one-third of the net value of the estate, with the remaining two-thirds being divided equally between the children. If the deceased leaves a father and a mother but no spouse or children, the net value of the estate is divided among the deceased’s parents in equal shares. There are a series of further criteria in s.84 which regulate the many other permutations that can occur in distribution of an intestate estate, based on the nature of the differing relationships which can exist between a deceased person and his parents, spouse(s), children, siblings and other next of kin.
    
69. Section 81(2) of the WPA Act additionally provides that where a deceased has died leaving more than one wife by valid customary marriage who survives him, any share in the estate to which a single wife would, under Division 6 of Part III of the WPA Act, have been entitled shall be divided between those wives.
    

(2) Creditor claiming grant of administration

70. Application by a creditor seeking grant of administration of a deceased estate can be made under Division 5 of Order 19 of the National Court Rules. Division 5 of Order 19 comprises Rules 31, 32 and 33 which permit a creditor to apply for grant of administration subject to the creditor having first obtained leave of the Court to do so.
    
71. With reference to a creditor who wishes to apply for grant of administration of an intestate estate to obtain settlement of a debt, Order 19 Rule 32(4) provides:
    

32. Conditions
...

(4) Where a creditor desires to commence proceedings for a grant of administration and the deceased did not leave a will, he shall serve on the widow or widower of the deceased and on every person entitled in administration of the estate on intestacy a citation to pray for administration.

72. Section 66 of the WPA Act relevantly provides:

66. Removal of administrator, etc., in creditors’ administration

(1) On being satisfied that—

(a) there has been negligence or maladministration in the affairs of the estate of which a person has obtained administration in the capacity of a creditor;

...

the National Court or a Judge may—

(c) order the Registrar to assign the administration bond to the Public Curator or to a person named in the order; and

(d) if the Court or Judge thinks fit—

(i) remove the creditor from the position of administrator and appoint the Public Curator or another person named in the order to be administrator in place of the administrator so removed, on such terms and conditions as the Court or Judge thinks proper, and

(ii) make all necessary orders for vesting the estate in the new administrator and as to accounts, and such order as to costs as the Court or Judge thinks proper.

(3) Public Curator claiming grant of administration as “personal representative” of deceased

73. The Public Curator, now known as the Public Trustee^[3], has standing in a wide variety of circumstances to apply for grant of administration in respect of an intestate estate. Those circumstances are clearly set out in s.10 of the Public Curator Act Ch. 81, which relevantly provides:
    

10. Orders To Administer

(1) On the application of the Public Curator, the National Court or a Judge may grant to the Public Curator an order to administer the estate of any deceased person leaving property within the jurisdiction where—

(a) the deceased left no executor, widow, widower or next of kin resident within the jurisdiction, who is willing and capable of acting in the execution of the will or the administration of the estate; or

(b) ...

(c) probate or administration is not applied for within three months after the death of the deceased; or

(d) after the expiration of 30 days after the death, there is no reasonable probability of application being made within the period of three months after the death; or

(e) the estate or any portion of the estate is liable to waste, and the executor, widow, widower or next of kin—

...

(iv) requests the Public Curator in writing to apply for the order; ...

[underlining added]

74. Section 44 of the WPA Act provides that the initial vesting of property on the death of a deceased person is in the Public Curator. It states as follows:

44. Initial vesting in Public Curator

Until probate or administration is granted, the property of a deceased person vests in the Public Curator, in the same manner and to the same extent as formerly personal estate in England vested in the Ordinary.

75. The reference in s.44 of the WPA Act to personal estate in England formerly vested in the “Ordinary” is a reference to the convention in ancient English law whereby property must at all times be owned by someone. Therefore an owner had to be found for the property of a deceased person between the date of their death and grant of probate or letters of administration. Probate and intestacy matters in England were formerly within the jurisdiction of the courts of the Church, not of the Crown, and so the person fictitiously vested with title to property during this period of vacuum was the bishop of the local church diocese, who was known as “the Ordinary”.^[4]
    
76. It is well settled law in Papua New Guinea that s.44 of the WPA Act does not in itself confer on the Public Curator any right of personal representation to administer the estate of a deceased person. That right can only occur on grant of representation by the National Court on application made by the Public Curator pursuant to s.10 of the WPA Act.
    
77. This is what was said by Kandakasi J (as he then was) regarding s.44 of the WPA Act in Singut v Kinamun (2003) N2499 at page 10:

“There is no contest that this provision applies in cases where a person dies with a will and one dying without a will. Likewise, there is no contest that this is only a temporary measure pending the grant of probate or administration of the estate of a deceased person. Where a person dies without a will, s. 10 of the latter Act empowers the Public Curator to apply for grant of administration ...”.

78. In The Public Curator v BSP Ltd (2006) SC832, the Supreme Court observed as to the position of the Public Curator:

“ Until Grant of Probate or Letters of Administration the property of a deceased person vests in the Public Curator. See: Wills Probate and Administration Act s.44. However he may not administer the estate unless he is granted representation. The deceased’s property vests for the purpose of administration in the person appointed by the National Court to have representation rights (Probate of Letters of Administration) (s.45(2).”

79. See also Re Estate of Joseph Kubak Demas (2017) N7044 where David J said, with reference to s.44 of the WPA Act:

“ The vesting of a deceased’s estate in the Public Curator is a temporary measure until such time as a formal grant of probate of the will or administration of the estate is made by the Court or the Registrar under Sections 39 or 42 of the WPAA as the case may be: Public Curator v Bank of South Pacific Limited (2006) SC832; Public Curator of PNG v Konze Kara (2014) SC1420; Ken Owa v Jacob Popuna (2015) N6111. ”

80. Section 45(2) of the WPA Act provides:

45. Vesting on grant

...

(2) Subject to any limitations expressed in the grant, on the National Court granting representation of a deceased person all the property, or all the property then administered, of that person, whether held by him beneficially or in trust, vests as from his death in the personal representative to whom representation is granted for all the estate or interest of the deceased person in that property.

81. Section 45(2) of the WPA Act operates as a variant of the doctrine of ‘relation back’ by vesting title in the personal representative to whom administration is granted by the National Court of all property of the deceased which, as an interim measure, had previously automatically passed on death of the deceased to the Public Curator under s.44 of the Act. If it is the Public Curator who subsequently obtains formal grant of administration, then s.45(2) re-vests title to all property of the deceased in the Public Curator upon grant of administration. If another person or entity obtains grant of administration, title to all unadministered property of the deceased is automatically removed by operation of law from the Public Curator and is re-vested in that other person or entity on grant of administration.
    

(4) Trustee Company claiming grant of administration

82. Trustee companies are also statutorily entitled, subject to certain conditions, to apply for grant of administration of an intestate estate. Section 7 of the Trustee Companies Act Ch. 288 states:
    
    7. Authorisation, by person entitled to apply, of trustee company to obtain administration

(1) A person who is entitled to obtain administration of the estate of an intestate as—

(a) the spouse, or

(b) the next of kin; or

(c) a creditor,

of the intestate, may, instead of applying himself for administration, authorize a trustee company to apply for administration of the estate.

(2) Administration of the estate of the intestate may be granted to the company on its own application.

83. No case of a contest between a trust company and another applicant for a grant of administration has yet come before the National Court. On principle it seems that in such a case the Court would incline to appoint the trust company if it had the support and consent of the beneficiary or beneficiaries or creditor having the larger interest in the distribution of the intestate estate.
    
84. Returning to the circumstances of this case, Theresia and Alua have challenged Lane’s standing to have continued this suit following the death of the deceased in the absence of Lane having obtained grant of administration of the deceased’s intestate estate. This challenge, having been made on several occasions before Kandakasi J, arose again during the pre-trial conference which took place on 15 September 2020.
    
85. Lane responded to the latest re-surfacing of this issue by pleading in paragraph 4 of his further amended statement of claim filed on 30 September 2020 as follows:
    

“ 4. The Plaintiff is the eldest son of the said deceased who was previously the Second Plaintiff until an order made from the mediation order on 20 June 2016 made him sole Plaintiff in accordance with the Melpa custom of the Hagen people in Western Highlands Province after the Deceased passed away. ”

86. The defendants by paragraph 2 of their further amended defence filed on 2 October 2020 responded by pleading to the effect that Lane’s continuation of this proceeding under his own name is misconceived because:
    • the Melpa customs of the Mt Hagen people of Western Highlands Province are irrelevant to the issue of Lane Onga’s standing to prosecute this suit;
    • no grant of probate or administration of the estate of the deceased has been made by this Court in favour of Lane;
    • the Property does not form part of the estate of the deceased.
      
87. Mr Kuria in his written submissions at trial on 12 October 2020 expanded on the defendants’ pleading in this regard. He submitted that the Property does not constitute part of the estate of the deceased. Mr Kuria then argued that even if the Court were to find otherwise, Lane has nevertheless lacked standing and legal capacity to have continued to prosecute this proceeding after the death of the deceased because there has been no grant by the Court to Lane of probate or letters of administration authorising Lane to represent and administer the estate of the deceased. Mr Kuria pointed out that the deceased died intestate. There is no evidence of any will having ever been made by the deceased. This is not contested by Lane. Moreover, Mr Kuria submitted that as Lane himself conceded in evidence during cross-examination that he has never been granted letters of administration by the Court, this admission was fatal to the perpetuation of this suit by Lane.
    
88. Mr Kup-Ogut, when given opportunity at trial to orally reply to Mr Kuria’s submission regarding Lane’s lack of legal capacity to have continued the deceased’s suit, was silent on this issue notwithstanding that this was a matter which was clearly raised and pleaded in paragraph 2 of the defendants’ further amended defence filed on 2 October 2020. Mr Kup-Ogut’s written submissions similarly avoided or neglected to make any reference to this crucial issue.
    
89. The question of Lane’s standing to substitute for the deceased in this proceeding is not a new issue. It has been a longstanding concern of both the Court and the defendants. It is an issue which first came to the fore in this suit on 19 April 2016, shortly after the death of the deceased on 27 March 2016.
    
90. Lane deposed in paragraph 7 of his affidavit filed on 16 May 2016 to the effect that when this case returned before Kandakasi J on 19 April 2016, his Honour was informed that the deceased had passed away on 27 March 2016. An endorsement intended for 19 April 2016 on the Court’s file (but somehow erroneously dated 22 March 2016) states that on that occasion his Honour ordered Lane to take all steps necessary to substitute for his father as first plaintiff “in accordance with the Wills and Probate Act”. His Honour then adjourned the case to 19 May 2016.
    
91. The affidavit filed by Ninai Lawyers for Lane on 16 May 2016 was filed in support of a motion filed that same day whereby Lane was seeking a series of interlocutory orders, including an order pursuant to Order 5 Rules 10 and 16 of the National Court Rules that he “be substituted to replace the First Plaintiff as the sole Plaintiff ... to represent himself and for and on behalf of the other surviving family members, whose names are annexed to this motion, in place of the said deceased by acting in a representative capacity for the other children of the deceased in this action”. An attachment to Lane’s motion gives the names of four of his siblings, namely Joshua Kuri Pill, Belinda Pill, Annmarie Kapa Pill and Dodo Maiya Pill, as being family members of the deceased who he says he represented as at May 2016.
    
92. It is apparent from Lane’s affidavit filed on 16 May 2016 that his lawyers at that time, Ninai Lawyers, were well aware that they needed to communicate with the Public Curator’s Office to sort out who was to substitute for the deceased in this proceeding. For whatever reason, it seems that Ninai Lawyers had decided that the Public Curator, Mr Jacob Popuna, should appoint Lane to be the Public Curator’s agent for the purpose of representing the estate of the deceased in this suit.
    
93. Section 14 of the Public Curator Act states that where a person dies leaving property in Papua New Guinea, the Public Curator or his agent may immediately and without any order of the National Court take possession of the property or any part of it. However, this is an interim measure only and where the Public Curator or his appointed agent has taken possession of any estate of a deceased person, s.16 of the Act provides that the Public Curator “shall apply, as soon as possible, to the National Court for an order under Section 10 in respect of the estate”. In other words, even if the Public Curator appoints an agent to take immediate possession of property following the death of an intestate person, the Public Curator must as soon as possible thereafter apply to the National Court for grant of representation to administer the deceased’s intestate estate.
    
94. Lane states at paragraphs 23 to 26 of his affidavit filed on 16 May 2016:

“ 23. ... I am aware that our Lawyers when they were advised that the First Plaintiff passed away have requested the Public Curator to issue them an agency right to continue to prosecute the matter on behalf of the remaining beneficiaries.

24. In order to request an agency from Jacob Popuna, the Public Curator, I am aware that two emails were sent with a copy of the Amended Statement of Claim, one was sent on 25 April 2016 and a follow-up reminder was sent on 28 April 2016 in which an acknowledgment was to be given by Jacob Popuna on 5 May 2016.

25. To further follow-up on the request for the agency by a letter dated 9 March 2016 our Lawyers brought this matter to his attention by the Public Curator due to a death in the family has not come back yet.

26. Annexed hereto and marked with letter “E” are copies of the letter of 9 May 2016, the two emails and the copy of the Claim.”

95. Annexure “E” to Lane’s affidavit includes a copy of an email dated 25 April 2016 from Mr Kup-Ogut to Public Curator Mr Popuna. That email says, with reference to this case:
    

“ However in the course of this proceedings, late Gabriel passed away and left about 10 kids surviving him. They have asked to join the case as beneficiaries so it might require your permission to add them as a party under Order 5 Rule 10 of the National Court Rules and Section 4 of the Public Curators Act. ”

96. Annexure “E” to Lane Onga’s affidavit also includes a copy of a short email dated 5 May 2016 from Public Curator Mr Popuna to Mr Kup-Ogut which acknowledged the latter’s email of 25 April 2016 and which indicated that Mr Popuna would reply to documents regarding this case sent to him by Mr Kup-Ogut.
    
97. The remaining document which comprises Annexure “E” to Lane Onga’s affidavit is a copy of a faxed letter dated 9 May 2016 from Ninai Lawyers to Public Curator Mr Popuna which states:

“ [In our email sent on 5 May 2016] we requested on behalf of the Second Plaintiff and the surviving beneficiaries an authority or agency to continue to represent them in this court proceedings. We now understand that you are unable to undertake the agency letter at the moment because you are attending to the death and repatriation of your brother, Robert Puri in Manila.

Whilst waiting for the agency letter please be advised that we will seek leave of Court to continue to act for the remaining beneficiaries and the Second Plaintiff.

To enable you to prepare the agency letter, we enclose the Certificate of Death and other related documents together with the copy of the email of 5 May 2016. ”

98. It seems that thereafter Public Curator Mr Popuna never provided any “agency” letter giving his permission or consent for Lane or any of the other beneficiaries of the deceased’s intestate estate to act for the deceased in this proceeding. Ninai Lawyers never followed up on their request in this regard to the Public Curator. If they did, there is no evidence before this Court that Ninai Lawyers ever pursued appointment of an agent any further.
    
99. However, even if the Public Curator had given permission or consent for Lane or anyone else as “agent” of the Public Curator to be substituted for the deceased in this suit, that permission or consent would have been void and of no legal consequence as it would have been given ultra vires the Public Curator’s statutory powers.
    
100. While it is correct that s.4(1) of the Public Curator Act enables the Public Curator to appoint a person “to act as his agent for the purpose of the administration of an estate” and that s.14 of the Act allows an agent appointed by the Public Curator to take possession of property in an intestacy situation, the appointment of an agent and the taking of possession by that agent on behalf of the Public Curator of property in an intestate estate is very much an interim measure. This is because s.16 of the Act is clear when it states:
     

16. Duty of Public Curator on Taking Possession

Subject to Section 15 [powers of Public Curator pending grant of administration], where the Public Curator or a Public Curator’s agent has, under this Section, taken possession of any estate of a deceased person, the Public Curator shall apply, as soon as possible, to the National Court for an order under Section 10 in respect of the estate.

101. In Wari v Dekenai Construction Ltd (2017) N7649 the plaintiff sued the defendant for negligence following the death of the plaintiff’s father who had been an employee of the defendant. The plaintiff’s late father had died intestate, without leaving a will. The plaintiff alleged that the defendant had been negligent in that the company had failed to have in place workers’ compensation insurance cover at the time of death of the plaintiff’s father. The defendant applied for dismissal of the case on the basis that the plaintiff lacked legal capacity to bring the proceeding. The defendant’s counsel, Mr Dane Mel, submitted that as the plaintiff had not been granted administration of his late father’s intestate estate by the National Court, the plaintiff had no lawful standing to have instituted the case against the defendant. The plaintiff responded by arguing in person that he did not require a grant of administration in respect of the intestate estate of his late father because the Public Curator had appointed him to be his agent pursuant to s.4 of the Public Curator Act, which the plaintiff submitted was sufficient for him to have standing to sue the defendant on behalf of the estate of his late father.
     
102. Kariko J accepted the submission made by counsel for the defendant. This is what his Honour said at paras. 8, 9 and 10 of the decision in Wari v Dekenai Construction Ltd:

“ 8. Mr Mel relies on the decision of Nablu, AJ in Ken Owa & Anor v Jacob Popuna & Ors (2015) N6111. In that case, the Public Curator appointed a person as his agent for the purpose of administering the estates of a number of deceased landowners who had died intestate. Letters of administration had not been obtained from the Court. Her Honour noted that by virtue of Section 44 of the Wills Probate & Administration Act the property of a person who has died intestate initially vests in the Public Curator until letters of administration aregranted. Her Honour also decided that while Section 4 gives discretionary power to the Public Curator to appoint persons to act as his agents for the purposes of administering a deceased estate, the Public Curator cannot exercise that power unless the Public Curator himself has been granted letters of administration.

9. I agree with that conclusion. The vesting of an estate is not the same as the administration of an estate. The vesting simply refers to caretaking of property, while administration means the collection of assets, payment of debts and distribution of property in the estate of a deceased person. Since an agent may be appointed for the purpose of the administration of an estate, the Public Curator must himself have powers to administer the estate by virtue of probate or letters of administration ordered by the Court.
10. In the circumstances, I conclude that the appointment of Wari as an agent of the Public Curator is unlawful. The Plaintiff therefore does not have the legal capacity to commence these proceedings which consequently must be dismissed as incompetent. ”
    
103. I concur with the proposition that an agent appointed by the Public Curator has no standing, as agent, to apply for grant of administration of a deceased’s intestate estate for the reasons given by Davani AJ (as she then was) in Owa v Popuna and by Kariko J in Wari v Dekenai Constructions Limited.
     
104. When this present case returned before the Court on 19 May 2016, Kandakasi J adjourned the matter to 27 May 2016 to enable Lane to have further time to “settle the substitution issue”. On 27 May 2016 the case was further adjourned by his Honour to 20 June 2016 for the same reason.
     
105. When the case came back before his Honour on 20 June 2016, this time the parties’ respective counsel came ready with a draft mediation order to implement a prior order of the Court which had been made on 21 July 2015 at a time when the deceased was still alive and which had directed that the parties were to attend mediation. On 20 June 2016 his Honour granted the mediation order by consent. Term 12 of the mediation order stated:
     

“ 12. The Second Plaintiff, Lane Kult Pill, shall substitute [for] the First Plaintiff and become the sole Plaintiff in these proceedings.”

[underlining added]

106. By appointing Lane as the sole plaintiff for the purpose of this proceeding, the mediation order of 20 June 2016 effectively excluded at that juncture the four siblings of Lane who had been identified in the attachment to Lane’s amended motion filed on 16 May 2016 from being joined as his co-plaintiffs in this litigation.
     
107. Term 13 of the mediation order made by his Honour on 20 June 2016 directed Lane to file and serve an amended writ of summons within 7 days ‘with the changes to the Plaintiffs’ names and details ordered above”.
     
108. On 22 September 2016, three months later, Ninai Lawyers late-filed Lane’s amended writ of summons with his amended statement of claim.^[5] The amended writ of summons deleted citation of the deceased as first plaintiff. Lane was named in the amended writ of summons as the sole plaintiff.
     
109. I observe that the amended statement of claim endorsed on the amended writ filed on 22 September 2016 was poorly drafted. The amended statement of claim was confusing in that it continued to refer to the deceased in certain paragraphs as the first plaintiff and as if he were still alive and was still a party to the proceeding. Other paragraphs in the amended statement of claim filed on 22 September 2016 referred to “the plaintiffs”, again giving the impression that the deceased was still a party to the suit. The amended statement of claim made no attempt to join Lane’s four siblings named in his motion filed on 16 May 2016 in this suit.
     
110. Furthermore, paragraph 2 of Lane amended statement of claim filed on 22 September 2016 simply repeated his earlier pleading in the original statement of claim filed on 3 July 2015 when the deceased as still alive that as he is the son of the deceased, he is “the beneficiary of all properties owned by the First Plaintiff”. I observe that Lane’s amended statement of claim filed on 22 September 2016 failed to clarify his legal capacity to substitute for the deceased or on what basis he asserted he was lawfully entitled to represent the estate of the deceased in this proceeding in the absence of any grant of administration.
     
111. The next and latest of Lane’s further amended statements of claim was filed by Kup & Co. for Lane on 30 September 2020. This filing had occurred because the issue of Lane’s standing to substitute for his late father and to pursue this proceeding for himself and other co-plaintiffs had again been raised by the defendants’ counsel, this time at the pre-trial conference held on 15 September 2020, which is why Lane was directed by the Court’s order of 15 September 2020 to file a further amended statement of claim to clarify the capacity in which he was pursuing this suit and to clarify if he was representing any further beneficiaries in the deceased’s estate.
     
112. Lane’s latest further amended statement of claim filed on 2 October 2020 varied his amended statement of claim filed on 22 September 2016 in a number of ways. Lane is cited as plaintiff in his latest amended statement of claim as “Lane Kult Pill Onga for himself and on behalf of the named beneficiaries of the Estate of Gabriel Phil Onga”. The deceased’s middle name of “Pill” was erroneously stated as “Phil” in that citation.
     
113. Annexed to Lane’s latest amended statement of claim filed on 20 September 2020 is a list of the beneficiaries referred to in paragraph 3 of that pleading. The text of the list of beneficiaries is reproduced below:
     

“ Annexed to the Statement of Claim
Authority Given on 26 April 2016 by and Details of Beneficiaries

Name	Relationship	Age	Sex
Ere Pill	Spouse/Wife	50	Female
Annmarie Kepa Pill	Daughter	30	Female
Dodo Maiya Pill	Daughter	28	Female
Joshua Kuri Pill	Son	24	Male
Haydar Pill	Daughter	22	Female
Tina Pill	Daughter	17	Female
Jonah Pill	Son	14	Male
Toutou Pill	Son	10	Male ”

114. Paragraphs 3 and 4 of Lane’s latest further amended statement of claim filed on 20 September 2020 pleads as follows:

“ 3. The plaintiff is suing for himself and on behalf of the beneficiary [sic] whose names are annexed herein in the Estate of Gabriel Phil Onga who on 27^th March 2016 died at Kamda village, Nebilyer, Western Highlands Province (“the Deceased”) from cerebral vascular accident, whilst this proceeding WS 886 was on foot and pending determination.

4. 4. The Plaintiff is the eldest son of the said deceased, who was previously the Second Plaintiff until an order made from the mediation order on 20 June 2015 made him sole Plaintiff in accordance with the Melpa custom of the Hagen people in Western Highlands Province after the Deceased passed away.
115. I have previously observed in this decision that Kuria Lawyers reacted swiftly to Lane’s latest further amended statement of claim by filing a further amended defence and amended cross-claim for the defendants on 2 October 2020. The further amended defence gave a comprehensive response. It included the following paragraph 2 in answer to Lane’s contention that he has capacity to represent his late father and the eight other beneficiaries of the estate of the deceased listed in his latest amended statement of claim:
     

“ 2. In relation to paragraph 4 of the Further Amended Claim, while the Defendants admit the principal Plaintiff is one of the sons of the late Gabriel Pil Onga (the deceased), the Defendants say:

(a) [they] admit there was an order on 20 June 2016 that substituted the Plaintiff in place of the deceased;

(b) deny the Melpa Custom of the Mt Hagen people of Western Highlands Province was/is relevant;

(c) they do not admit if there was probate or Letters of Administration granted to the Plaintiff;

(d) the property is not an estate of the deceased;

(e) consequently, the Plaintiff’s action to continue the proceeding under his own name is misconceived. ”

116. A reply to the defendants’ further amended defence and defence to the defendants’ cross-claim was then filed by Kup & Co Lawyers for Lane on 7 October 2020, just before trial on 12 October 2020. The reply did not address the issue raised by the defendants as to whether Lane had been granted any form of administration of the estate of the deceased other than to repeat at paragraph 2 of the reply that Lane is the son of the deceased and that he is entitled to benefit from the Property.
     
117. When the trial of this matter was conducted on 12 October 2020 Lane was cross-examined by Mr Kuria on his affidavit filed on 13 May 2016, which had been admitted into evidence as Exhibit P3. In paragraph 8 of his affidavit, Lane had deposed that the deceased had ten children, most of whom had married and moved on, but that four of those children who used to reside with the deceased in the Property, namely Belinda Pill, Joshua Kuri Pill, Annemarie Pill and Dodo Maya Pill, had previously given their consent to Lane collectively acting for them in this proceeding. Annexure “C” to Lane’s affidavit of 13 May 2016 comprises four written consents variously dated 26 and 29 April 2016 said to contain the signatures of Belinda, Joshua, Annemarie and Dodo.
     
118. During cross-examination Mr Kuria drew Lane’s attention to paragraph 8 of his affidavit filed on 13 May 2016 and then explained to him to the effect that when a person dies having assets but without having left a will, a personal representative of the deceased must apply to the National Court for an order to administer the assets of estate. Mr Kuria then asked Lane if he had been granted an order by the National Court for administration of the deceased’s estate. Lane replied that he had not been granted any order for administration.
     
119. The issue of Lane’s capacity to represent himself and other beneficiaries in the deceased’s estate for the purpose of this proceeding was directly addressed by Mr Kuria for the defendants in his written submissions which were relied on by him for the defendants at trial. Mr Kuria stated at paras. 202 to 204 of his written submissions that Lane lacked capacity to represent the deceased’s estate in this proceeding because for him to lawfully do so, he would have needed to have obtained grant of any probate of a will of the deceased or have been granted administration of the estate. As there is no evidence that the deceased ever made a will, Lane should have applied for and obtained grant of administration of the estate. Only then, Mr Kuria argued, could Lane have had capacity and standing to continue to prosecute the deceased’s claim against the defendants in this proceeding on behalf of himself and other beneficiaries of the deceased’s estate.
     
120. In his oral submissions, Mr Kuria pointed out that during cross-examination Lane conceded he had never applied for administration of the estate of the deceased. Therefore, it was said, Lane has no capacity or standing to represent any of the beneficiaries of the deceased’s estate in this proceeding, including himself, and that this proceeding should be dismissed.
     
121. Mr Kup-Ogut’s written submissions for the plaintiffs were silent on the issue of whether Lane Onga has had standing to continue this proceeding after the death of the deceased for the benefit of himself and various other beneficiaries of the estate of the deceased. Mr Kup-Ogut’s oral submissions similarly did not address this crucial issue at all.
     
122. Having heard the evidence and having considered the written and oral submissions of each counsel for the respective parties, I accordingly find that Lane has no standing to have been substituted for his late father in this proceeding and no standing to have pursued the substantive claims of his late father for the benefit of himself and the eight persons whose names are listed in the attachment to Lane’s latest further amended statement of claim filed in this proceeding on 30 September 2020. The basis for this finding is as follows:
     
     • (1) It is settled law that when the Court makes an order pursuant to Order 5 Rules 10(2), 11(1) and 16(1)(b) of the National Court Rules for a person or entity to be substituted for a former party in a proceeding who has died intestate without leaving a will, the person or entity to be substituted must be the personal representative of the deceased within the legal meaning of that term: Owa v Popuna (2015) N6111; Wari v Dekenai Constructions Ltd (2017) N7649.
       
     • (2) Where a case involving a dispute as to a deceased’s interest in real estate is sought to be continued by some person or entity, the Land Registration Act Ch 191 is relevant in that s.117 of the Act expressly defines the term personal representative as meaning the executor of the will of the deceased or the administrator of the estate if the deceased has died intestate without leaving a valid will. Section 117 also makes it clear, when read in conjunction with ss.14, 15 and 16 of the Public Curator Act, that if the Public Curator intends to fully administer an intestate estate after interim protective steps in the administration of a deceased estate are taken, then the Public Curator must apply for and obtain formal grant of administration.
       
     • (3) In the present case, the deceased died without leaving a will and neither Lane nor the Public Curator have ever applied for formal grant of administration of the deceased’s intestate estate.
       
     • (4) As Lane has not obtained formal grant of administration, there has been no publication of a notice in Form 78 of the Schedule 1 of the National Court Rules giving notice to all persons who may have an interest in the intestate estate of the deceased that Lane was intending to apply for grant of administration. Lane deposed in his affidavit filed on 16 May 2016 that the deceased had ten children. Annexure “C” to Lane’s affidavit filed on 16 May 2016 comprises the purported consents given April 2016 of four of Lane’s siblings to represent him in this proceeding. Those siblings are Belinda Pill, Joshua Kuri Pill, Annmarie Kepa Pill and Dodo Maiya Pill. There is evidence that the deceased had four wives, but only two of those wives were named in affidavit material filed in this suit: Mrs Joanne Noma Pill and Mrs Ere Pill. However, there could well be several widows, other adult children of the deceased and creditors who are not on notice of this proceeding and who are not aware that grant of administration of the deceased’s intestate estate should have been sought by an entitled personal representative of the deceased. Had Lane or the Public Curator applied for grant of administration of the deceased’s intestate estate, a Form 78 giving notice of intention to make application for grant of administration would have had to have been published in the national press, thereby giving notice of that application to all other persons and creditors who may have an interest in the estate, which would include those relatives of the deceased who have not been properly identified in this proceeding.
       
     • (5) Even if there were evidence that the Public Curator had appointed Lane as his agent for the purposes of interim administration of the deceased’s intestate estate (and there is no such evidence), Lane or the Public Curator would have needed to obtain from this Court a formal grant of administration as a pre-condition before either of them would have been eligible to apply pursuant to Order 5 Rules 10(1) and 11(1)(d) and/or Rule 16(1)(b) of the National Court Rules for an order that they be substituted in this proceeding for the deceased.
       
     • (6) When Kandakasi J made the mediation order by consent on 20 June 2016, which included a term whereby Lane was to substitute for the deceased and become sole plaintiff in this proceeding, that order was directed towards the estate of the deceased being represented by Lane at the forthcoming mediation rather than for all purposes in connection with this suit. Because the mediation order was made by consent, no evidence or argument was put before his Honour as to why Lane claimed he had standing and legal capacity to be substituted for the deceased in this proceeding. An order made by consent cannot confer standing on a party where that standing does not exist in law. Moreover, when Lane’s further amended statement of claim was late-filed on 22 September 2016, Lane failed to clarify why he asserted he had standing to continue the proceedings. He again pleaded that he was the sole plaintiff, thereby again excluding any claim to representation on his part in this proceeding for any of the widows or other adult or minor children of the deceased.
       

(7) As Lane has sought to continue this proceeding without having first obtained formal grant of administration of the intestate estate of his late father, he has not to date been recognized by this Court as being the personal representative of the deceased. Lane therefore has no present entitlement in law to assert that he has standing and legal capacity to represent himself and or any other beneficiary of the intestate estate of the deceased for the purposes of this case.

(7) There has been only partial disclosure by Lane of general particulars of some of the four wives and ten children of the deceased, all of whom would be entitled on application of the rules of intestacy set out in s.84 of the WPA Act to share in the distribution of the deceased’s intestate estate, especially if this case were to be resolved in Lane’s favour. There could well be several widows, other biological or adopted children and grandchildren of the deceased, as well as creditors, who may have an interest or claim against the deceased’s estate but who have been excluded from representation or mention in this proceeding because of the failure of Lane to ensure that either he or the Public Curator obtained grant of administration of the deceased’s intestate estate prior to Lane pursuing the continuation of this proceeding without standing to do so. Had Lane or the Public Curator obtained grant of administration, public notice of intended application for that grant and full disclosure to the Court of all beneficiaries of the deceased’s estate would have had to have occurred before any grant of administration could be made by the Court pursuant to Order 19 Rule 25 of the National Court Rules.

(8) Absence of standing and legal capacity is a fundamental flaw that renders proceedings a nullity because standing is a condition precedent to commencing or continuing any proceeding before the Court. The absence of the requisite standing also means that there is no reasonable cause of action that can be pursued by a plaintiff before the Court: see Toligai v Chan (2012) N4842; Taila v Silas (2018) N7334.

For these reasons this proceeding must be dismissed on this basis alone.

123. There is further cause why Lane is prevented from claiming and pursuing the relief sought in his latest further amended statement of claim filed on 30 September 2020. The defendants have challenged Lane’s procedural entitlement to represent the eight beneficiaries whose names are contained in the list annexed to Lane’s latest further amended statement of claim. The defendants have submitted that Lane has failed to comply with those provisions of the National Court Rules which relate to class actions, also known as representative proceedings.
     
124. I agree with counsel for the defendants that Lane has not complied with the mandatory requirements in the National Court Rules relating to representative proceedings.
     
125. Order 5 Rule 13(1) of the National Court Rules provides:
     

13. Representation: Current interests

(1) Where numerous persons have the same interest in any proceedings the proceedings may be commenced, and, unless the court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.

[underlining added]

126. The procedural requirements for representative proceedings were summarised by the Supreme Court in Malewo v Faulkner (2009) SC960, which confirmed the representative principles stated in Mali v Independent State of Papua New Guinea [2002] PNGR 548. These two cases should be familiar to all practising lawyers. The requirements, as outlined by the Supreme Court in Malewo v Faulkner at para. 59, are these:
     • all intended plaintiffs must be named in the originating process;
     • each and every intended plaintiff must give specific instructions, evidenced in writing, to their lawyers to act for them;
     • any person in whose name proceedings are commenced and who claims as lead plaintiff to represent other intended plaintiffs must produce an authority to the Court to show that he or she has been authorised by them to file proceedings as a class representative.
127. There are numerous other authorities on point, including: Laki v Alaluku [2000] PNGLR 392; Medaing v Ramu Nico Management (MCC) Ltd (2010) N4158, Mamkuni v Ly Cuong-Long and Jant Ltd (2011) N4674 and Kambao v Yakka (2016) N6514.
     
128. I refer also to Philip v Tiliyago (2019) SC1783 where Hartshorn J said at para. 29:

“The Courts have expressed the view that failure to meet the procedural requirements of a representative action under Order 5 Rule 13 means the plaintiff lacks standing and therefore no reasonable cause of action is disclosed, and it also amounts to an abuse of process. Recent cases reflecting this position include Hariba Andago v Andy Hamaga (2018) N7332, Dingake, J; Ben Kwayok v Jeremy Singomat (2017) N7097, Nablu J; Amos Ere v National Housing Corporation (2016) N6515, Hartshorn, J. ”

129. I consider that these requirements for commencement of a representative proceeding are equally applicable in this instance where Lane has sought, by the filing of his further amended statement of claim on 30 September 2020, a continuation of this proceeding by himself as lead plaintiff claiming to represent eight other co-plaintiffs despite no formal application having been made under Order 5 Rule 13(1) of the National Court Rules for him to be appointed to represent the interests of those eight other co-plaintiffs.
     
130. In view of these pronouncements of the Court regarding representative actions, each of the eight of Lane’s intended co-plaintiffs named in the list annexed to the further amended statement of claim of Lane filed on 30 September 2020 were procedurally required to give specific instructions to Lane to represent him or her in this proceeding. The co-plaintiffs who Lane purportedly represented at trial on 12 October 2020 comprise Mrs Ere Pill, one of the deceased’s widows, and seven named siblings of Lane, one of whom, Toutou Pill, was aged 14 and was still a minor at date of trial. Each of those adult co-plaintiffs were required to produce to this Court written authorities to show that: (1) Lane was recently authorised to represent him or her in this proceeding, and (2) Kup & Co Lawyers had been instructed to act for him or her in this proceeding. None of those authorities were produced to the Court by Lane or by Kup & Co Lawyers prior to or at trial. There is no evidence of these two categories of authorisations having been given at all.
     
131. Furthermore, no application pursuant to Order 5 Rule 19 of the National Court Rules was made prior to the trial of this case by any person seeking to represent Toutou Pill as a next friend for the purpose of this proceeding for the duration that Toutou Pill remained a minor.
     
132. The only reference to any authority having been given to Lane to represent any of the eight co-plaintiffs named in his further amended statement of claim filed on 30 September 2020 is the bald statement under the annexure to this pleading that “Authority Given on 26 April 2016 by and Details of Beneficiaries”. If that statement by Lane was intended to refer to the four authorities which comprise annexure “C” to his affidavit filed on 16 May 2016, then those authorities are completely out of date and had, in any event, been negated by Lane’s amended writ of summons filed on 22 September 2016 in which he cited himself as the sole plaintiff. The amended writ and its accompanying amended statement of claim filed on 22 September 2016 made no reference to any co-plaintiffs. Lane pleaded in paragraph 2 of his amended statement of claim filed on 22 September 2016 that he “is the beneficiary of all properties owned by the [former] First Plaintiff”. None of the other beneficiaries of the estate of the deceased were included or mentioned in the text of Lane’s amended writ and amended statement of claim filed on 22 September 2016. The names of the latest eight co-plaintiffs for which representation has been claimed by Lane as beneficiaries of the deceased’s estate only surfaced in the latest further amended statement of claim filed on 30 September 2020, and then without any of the requisite authorities having been filed or produced to the Court.
     
133. For these additional reasons, I find that this proceeding as amended by the further amended statement of claim filed for Lane on 30 September 2020 is incompetent and must be dismissed for failure to have complied with the requirements of the National Court Rules and of this Court relating to representative proceedings.
     

CONCLUSION

134. As issue 1 has been resolved by determining that this proceeding is to be dismissed because Lane as lead plaintiff does not have standing to represent himself and his eight co-plaintiffs in this suit for failure to have obtained grant of administration of the deceased’s estate and for failure to have complied with the requirements for a representative action, there would be no utility in considering issue 2, which relates to Lane’s substantive claims for relief. I accordingly decline to consider and make any findings on the evidence adduced by each party in support or defence of those substantive claims.
     
135. The dismissal of this proceeding will also require the consequential dismissal of the defendant’s amended cross-claim filed on 2 October 2020. This is because there is at this point in time no personal representative of the estate of the deceased having grant of administration against whom damages could be awarded and orders made if the defendants’ amended cross-claim were to be resolved by the Court in their favour. A further reason in this regard is because the defendants’ amended cross-claim pleads and relies on grounds appearing in their further amended defence, which defence will be automatically extinguished on dismissal of this proceeding.
     
136. My conclusion that this proceeding is to be dismissed does not mean that either of the parties’ respective positions regarding legal and equitable title to the Property and the other substantive issues raised in this proceeding have been in any way validated. It is for the parties to now obtain competent legal advice as to the next steps which each of them should take if their dispute over title to the Property is to be resolved, either by negotiated or mediated settlement out of court or by way of commencement of fresh proceedings.
     
137. As this decision to dismiss this proceeding is based on procedural grounds and not on the merits of the substantive positions of the parties, the dismissal will not per se prevent fresh proceedings being brought by any of the parties if further negotiations or voluntary mediation were to fail: see Order 12 Rule 7(1) of the National Court Rules.
     
138. Costs should follow the event. Accordingly, the party/party costs of the defendants/cross-claimants of and incidental to this suit are to be paid by Lane as plaintiff, such costs to be taxed if not agreed.
     

ORDER

139. The terms of the formal order of this Court are:

(1) This proceeding, including the cross-claim of the defendants, is dismissed.

(2) The plaintiff shall pay the defendants’ costs of and incidental to this proceeding, including the costs of the defendants’ cross-claim, such costs to be taxed if not agreed.

(3) The time for entry of this order is abridged to the time of signing by the Court which shall take place forthwith.

Judgment accordingly
__________________________________________________________________
Kup & Co Lawyers: Lawyers for the Plaintiff
Kuria Lawyers: Lawyers for the Defendants

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^[1] See paragraph 2 of the statement of claim endorsed on the writ filed in WS NO. 885 of 2015 filed on 3 July 2015.
^[2] A minute of the Order made by consent on 22 October 2018 is Court document no. 37. The minute was filed by Kuria Lawyers on 4 December 2018.
^[3] The Public Curator Act Ch. 81 was amended by the Public Curator (Amendment) Act 2020 (Act No. 13 of 2020) which came into operation on certification on 14 August 2020. Section 2 of the Amending Act provides that the term “Public Curator” in the principal Act is replaced with the term “Public Trustee” and that reference to the “Public Curator” in any other law must be read as a reference to the “Public Trustee”. For the purposes of this Decision, reference to the “Public Curator” will be maintained throughout as the Amending Act came into operation after the death of the late Gabriel Pill Onga on 27 March 2016.
^[4] The historical development of the jurisdiction of the English ecclesiastical courts in cases of intestacy and the meaning of the term “Ordinary” is traced in Dyke v Walford [1846] EngR 1198; (1846), 5 Moore 434, 13 E.R. 557. See also “An Introduction to Testacy and Intestacy in Papua New Guinea” (1994) paper by Mac Robb.

^[5] Court document no. 29.