Bale v Koma [2023] PGNC 211; N10285 (5 June 2023)

N10285

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 68 OF 2022 (IECMS-COMM)

PAIYO BALE

V

BEN KOMA

Waigani: Wawun-Kuvi, AJ
2023: 12^th April & 5^th June

CIVIL PRACTICE AND PROCEDURE- NATIONAL COURT RULES-Summary determination- Order 10, Rule 9A (15) (1) (b) (2)(d), Order 12, Rule 40 and Order 8, Rule 27- Whether proceedings should be dismissed of failing to disclose a reasonable cause of action and being an abuse of process.

CIVIL PRACTICE AND PROCEDURE- COMMON LAW- Estopple- Issue of section 2 of Frauds Act determined in prior proceedings? Whether the plaintiff estopped?

CIVIL PRACTICE AND PROCEDURE- COURT’S INHERET POWERS Abuse of Process- Whether proceedings are an abuse of process?

CIVIL PRACTICE AND PROCEDURE-CONTACT- STATUE- ORAL- Frauds and Limitations Act 1988, sections 2 and 4- Oral agreement over land- Whether Plaintiff can seek specific performance? Whether there is a cause of action?

The Defendant commenced eviction proceedings against the Plaintiff. The Plaintiff raised as his defence an oral agreement for the purchase of the land. The Magistrate considered the evidence and granted orders for eviction. The Plaintiff appealed to the National Court. The Court determined the appeal and dismissed it. The issue of section 2 of the Frauds and Limitation Act was considered and determined against the Plaintiff. Aggrieved, the Plaintiff appealed to the Supreme Court. A ground of appeal was that the National Court had erred in applying section 2 of the Frauds Act. He did not prosecute the appeal. Four years later, the appeal was dismissed for want of prosecution. A few months after the dismissal of the appeal, the Plaintiff commenced fresh proceedings seeking specific performance of the oral agreement.

Held:

1. There is no claim requiring a trial on liability. The plaintiff’s claim is estopped because the issue of section 2 of the Frauds Act was determined against him in CIA 117 of 2014, and he failed to prosecute it on appeal in SCA 92 of 2018.
2. The proceeding is an abuse of process because the plaintiff did not prosecute his appeal in SCA 92 of 2018. He waited 4 years and 10 months and following the dismissal of his appeal for want of prosecution and filed fresh proceedings.
3. There is no written document confirming an oral agreement for the sale of land as such by operation of section 4 of the Frauds Act, there is no cause of action: see Lyn v Yaku [2017] PGSC 6; SC1574.
4. Finally, the Statement of Claim is ambiguous. It does not provide sufficient facts that would create a nexus between the plaintiff and defendant. It does not disclose a cause of action: see Kamuri v Pomoso [2021] PGSC 3; SC2071 at paragraphs 45-50.
5. Pursuant to Order 10, Rule 9A (15) (1) (b) (2)(d), Order 12, Rule 40 and Order 8, Rule 27 of the National Court Rules, the proceeding is dismissed for failure to disclose a reasonable cause of action and abuse of process.
   

Cases Cited:

Papua New Guinean Cases
Kunai Tomba v Andy Kaa & 2 Ors (2023) N10275
State v Kalaut [2022] PGSC 45; SC2246
Peyape v Waiya [2021] PGSC 32; SC2109
Kamuri v Pomoso [2021] PGSC 3; SC2071
Atlas Corporation Ltd v Ngangan [2020] PGSC 86; SC1995
Opi v Telikom PNG Ltd (2020) N8290
Angoman v Angoman [2019] PGSC 129; SC2074
Rimbunan Hijau (PNG) Ltd v Enei [2019] PGSC 73; SC1859
Kisa v Talok [2017] PGSC 51; SC1650
Nominee Niugini Limited v Independent Public Business Corporation & 2 Others (2017) SC1646
Wahune v Barton [2017] PGSC 40; SC1636
Lyn v Yaku [2017] PGSC 6; SC1574
Hole v Mana [2016] PGSC 55; SC1536
Oil Search Ltd v Mineral Resource Development Corporation Ltd (2010) SC1022
Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015
Timbers (PNG) Ltd v Kambori [2010] PGNC 201; N4282
State v Downer Construction (PNG) Ltd [2009] PGSC 51; SC979
Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906
Philip Takori & Ors v. The State & Ors (2008) SC905
Ofoi v Bongare [2007] PGNC 110; N3248
Lerroy v Stagg [2006] PGNC 2; N3050

Overseas Cases
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

Reference
National Court Rules

Counsel
Mr. Jeff Joe Lome, for the Plaintiff
Mr. Edwin Lako, for the Defendant

RULING

31st May, 2023

1. WAWUN-KUVI, AJ: This proceeding involves land located at Section 20, Allotment 02, Lay Down, Kiunga, Western Province. The Plaintiff is seeking specific performance of an oral agreement for the sale of the subject land.
   
2. I directed parties to address me on whether the proceeding should be summarily dismissed in accordance with Order 10, Rule 9A(15)(1)(b)(2)(d) of the National Court Rules.
3. I have taken this course of action based on the pleadings in the Statement of Claim.

The submissions

4. Mr. Lome for the Plaintiff acknowledges that the Court's power to dismiss a case for abuse of process stems from Order 12, Rule 40 (1) (c) of the National Court Rules. He further contends that in determining the proceedings, the doctrine of res judicata applies. His argument is that the processes originating from the District Court eviction proceeding did not determine the rights of the parties, and thus the current proceeding is properly before the Court. He relies on his written submissions filed on 3 April 2023.
   
5. Mr. Lako for the Defendant argues that the proceeding is an abuse of process. He contends that the plaintiff is barred from seeking specific performance pursuant to section 2 and 4 of the Frauds and Limitation Act 1998 (Frauds Act). The pertinent provisions provide that no interest can be created or disposed of in land except in writing. He relies on his written submissions filed on 10 November 2022 to support his oral submissions.

What is the source of the Court’s power?

6. The Court is empowered by Order 10 Rule 9A (15), Order 12, Rule 40 and Order 8, Rule 27 of the National Court Rules to determine matters where it considers discloses no reasonable cause of action, are frivolous, vexatious and otherwise an abuse of process.
   
7. Other than the rules, it is settled that the Courts have inherent powers to protect its process from abuse at any stage. As was said in Nominee Niugini Limited v Independent Public Business Corporation & 2 Others (2017) SC1646^[1]:

“27. The issue of competence is to do with legal and jurisdictional aspects of the court process. More often than not, this concerns the validity of the very proceedings before the court. Hence, it can be raised and determined at any state of proceedings. In Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853 the Supreme Court, adopting the principle in Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399 made that clear when it held:

“It is settled law that, the Courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that is always open to the court at any stage of the proceedings. As such, it does not matter whether a party appearing before the Court is raising it, because it goes into the competence of the very proceedings brought before the Court.” [Emphasis mine].

8. Order 10 Rule 9A (15), Order 12, Rule 40 and Order 8, Rule 27 of the Rules are the procedural vehicles by which the Courts use to protect its processes from abuse.

What is Res Judicata?

9. In Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45, the Court in its majority decision, distinguished between Res Judicata (cause of action estoppel) Issue Estoppel and what is now known as Anshun Estoppel.
   
10. Under the doctrine of Res judicata (cause of action estopple), a party cannot bring fresh proceedings where the same cause of action was the subject of previous proceedings which had concluded the matter..”^[2] In order words, res judicata operates when a party attempts to litigate the same cause of action in another proceeding: see summary of doctrine of res judicata in Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; (2008) SC906^[3].
    
11. On the other hand, issue estoppel arises where a “judicial determination directly involves an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.”^[4] Issue estoppel operates when a party attempts in a second proceeding to litigate issues of fact or law already decided by a prior proceeding.^[5] That is, any issues that were determined in previous proceedings cannot be the subject of fresh proceedings: see also Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906.^[6]
    
12. Under the Anshun Estoppel a party is prevented from bringing fresh proceedings where it should have pursed its claim in previous proceedings^[7]: see also Atlas Corporation Ltd v Ngangan [2020] PGSC 86; SC1995 at paragraph 39.
    
13. Another example of the application of the Anshun estopple in this jurisdiction is found in the case of State v Downer Construction (PNG) Ltd [2009] PGSC 51; SC979^[8]. Kandakasi, J (as he then was), in his dissenting judgment, considered the case of Port of Melbourne Authority v Anshun Pty Ltd^[9] and other authorities and found that the State was estopped from ligating the issue of lack of section 5 notice. He ruled that the State had the opportunity but did not take it up in previous proceedings.
    
14. The Court in Port of Melbourne Authority v Anshun Pty Ltd found that the abuse of process test is not a useful utility^[10] but instead the relevant test is whether the result would be one where a judgement conflicts with an earlier judgement, although based on a different cause of action^[11]: see also Timbers (PNG) Ltd v Kambori [2010] PGNC 201; N4282 at paragraph 9 applying Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45.
    
15. Based on the foregoing, it is concluded that Res judicata and Issue estoppel deal with attempts to re-litigate previously decided matters. The Anshun Estoppel, on the other hand, deals with both causes of action or issues that were never decided in previous processes but should have been raised as either a defence or issues.
    
16. I must now analyze the plaintiff’s present claim against the proceedings in CIA 117 of 2014 to determine whether any of the doctrines apply.

What was the nature and outcome of CIA 117 of 2014?

17. The Defendant filed eviction proceedings against the Plaintiff in the District Court in KDCC 20 of 2014. He sought recovery of his premises pursuant to section 6 of the Summary Ejectment Act.
    
18. The Plaintiff raised as a defence that the land was sold to him in 1998.
    
19. On 15 December 2014, the learned Magistrate after consideration of the evidence issued orders for eviction.
    
20. The Plaintiff appealed the decision. His appeal was registered as CIA 117 of 2014.
21. On 15 June 2018, the National Court confirmed the decision of the District Court and dismissed the appeal.
    
22. On 3 July 2018, the Plaintiff filed his Notice of Appeal. The Supreme Court Appeal was registered as SCA No 92 of 2018.
    
23. The Plaintiff in giving his notice of appeal stated:
    

“In applying section 2 of the Frauds and Limitation Act without giving regard to the exceptions under section 5 of the same Act when there was overwhelming evidence of possession by the Appellant on the subject land and part performance of an agreement for transfer of title of the subject land.”

24. On 26 July 2022, SCA 92 of 2018 was dismissed for want of prosecution.

What is the nature of the present proceedings?

25. The Plaintiff claims at paragraph 3 of the Statement of Claim:
    

“3. Sometimes around February 1998, at Kiunga, Western Province the Plaintiff and the Defendant made an oral agreement in that the Defendant would sell a property described as Section 20, Lot 02, Lay Down, Kiunga, Western Province to the Plaintiff. The oral agreement was between the Plaintiff and the Defendant’s wife on behalf of the Defendant because at the material time the Defendant was in Enga Province.”

26. Pursuant to the agreement he paid the Defendant K7, 000.00 as consideration. The Defendant refused to transfer title. He had defended the District Court proceeding and filed appeals to both the National Court and Supreme Court.
    
27. The Plaintiff seeks specific performance of the oral agreement made in 1998.

Whether the Plaintiff is estopped from bringing his claim?

28. In Kunai Tomba v Andy Kaa & 2 Ors (2023) N10275, I stated:
    

“The doctrines of res judicata (cause of action estoppel), issue estoppel and anshun estopple exist to protect court process from abuse from the unnecessary re-litigation of proceedings. The doctrines aid the Courts to prevent multiplicity of proceedings, inconsistent or contradictory orders, wasteful use of court resources and unnecessary costs to parties.”

29. Given the circumstances, I ask myself whether any of the doctrines apply?
    

Res Judicata (Cause of action estopple)

30. To appreciate whether the same cause of action is rehashed, it is relevant to understand what a cause of action entails. It is settled, that the cause of action involves two components, (1) a right under law or form of action and (2) the necessary facts that give rise to the form of action: Lerro v Stagg [2006] PGNC 2; N3050, Kisa v Talok [2017] PGSC 51; SC1650, Wahune v Barton [2017] PGSC 40; SC1636 and Philip Takori & Ors v. The State & Ors (2008) SC905.
    
31. The parties are the same in the three proceedings titled KDCC 20 of 2014, CIA 117 of 2014, SC 92 of 2018 and now WS 68 of 2022 [IECMS-COMM].
    
32. The underlying subject matter is the land located at Section 20, Lot 02, Lay Down, Kiunga, Western Province. The dispute between the parties is in relation to possession.
    
33. The cause of the action at the District Court was based on Statue. The Defendant was given the right to recover possession of land the subject of illegal occupation pursuant to section 6 of the Summary Ejectment Act. His rights are vested upon him based on him having title to the subject land.
    
34. In the present case, the cause of action is based on contract. The plaintiff seeks to enforce rights that are said to arise out of an oral agreement over land. He seeks specific performance, that is, he has paid consideration and the Defendant must now be compelled to transfer the title to him.
    
35. The cause of action is different in both cases. The doctrine of res judicata does not apply.

Issue Estopple

36. I have had recourse to the Statement of Claim and the Plaintiff’s affidavit filed on 21 October 2022, Court Document 4.
    
37. Section 6(2)(b) of the Summary Ejectment Act allows for a party to provide a reasonable explanation for presence on the land. The Plaintiff therefore raised as his defence the oral agreement as an explanation for his presence of the subject land. The District Court determined the case against him.
    
38. On appeal, the National Court presided by Gavara-nanu, J considered the appeal and dismissed it.
    
39. The plaintiff filed an appeal and relevantly stated that the National Court had erred in applying section 2 of the Frauds Act without regard to section 5 of the Act. It is evident from that ground of appeal that the National Court had considered section 2 of the Frauds Act and determined the issue against the Plaintiff.
    
40. Four years later, the Plaintiff did not prosecute his appeal and it was dismissed for want of prosecution.
    
41. The National Court decision in CIA 117 of 2014 is therefore final and the consequence is that KDCC 20 of 2014 is confirmed. As such, the Defendant is entitled to recovery of his land which was the subject of illegal occupation by the Plaintiff.
    
42. The Plaintiff now seeks specific performance of the oral agreement. The Defendant in his defence pleads section 2 and 4 of the Frauds Act as his defence.
    
43. Section 2(1) of the Frauds Act expressly provides that interest in land is only created or disposed of in writing. Without a written agreement, the Plaintiff has no legal interest: see Peyape v Waiya [2021] PGSC 32; SC2109 (21 May 2021) at paragraphs 55-58, Lyn v Yaku [2017] PGSC 6; SC1574 (10 March 2017) and Ofoi v Bongare [2007] PGNC 110; N3248 (20 July 2007).
    
44. Based on the foregoing authorities, I can conclude that the issue of section 2 of the Fraud Act is an issue once determined concludes all controversies between the parties.
    
45. The Plaintiff cannot seek specific performance because CIA 117 of 2014 had determined the issue of section 2. The Defendant is entitled to the recovery and possession of land located at Section 20, Lot 02, Lay Down, Kiunga, Western Province by virtue of the judgement in CIA 117 of 2014.
    
46. This proceeding is an attempt to re-litigate an issue that acted against the Plaintiff. To allow the proceeding to go any further would create a situation where the Court would be asked to give a conflicting or contradictory decision.
47. Issue estopple is applicable. Because the plaintiff is estopped from raising his present claim, there is no cause of action. There can be no trial on liability.

Anshun Estopple

48. The anshun estopple is also applicable in relation to SC 92 of 2018. The Plaintiff raised on appeal that the National Court failed to consider the effect of section 5 of the Frauds Act on section 2. Relevantly, the National Court failed to consider possession and part performance. Had the Plaintiff prosecuted the appeal, the Supreme Court would have determined the claim that he is now bringing. He did not. The doctrine of anshun requires him to prosecute the issue when the opportunity presented itself. He cannot seek to relitigate by filing fresh proceedings.

Whether the proceeding is an abuse of process?

49. I find that the circumstances also demonstrate that the plaintiff is abusing the process of the Court.
    
50. The Plaintiff had available to him the appeal process to settle the issue of section 2 and the application of section 5 of the Frauds Act. He sat on the appeal for 4 years and following its dismissal he filed a fresh claim.
    
51. I apply the statements on finality in Atlas Corporation Ltd v Ngangan [2020] PGSC 86; SC1995^[12] where the Court followed the majority decision in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12^[13] which held that: “A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened........ It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding. The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called “fresh evidence rule”) are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: “[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.”
    
52. It is evident that the dismissal of the Plaintiff’s appeal prompted the filing of the present proceeding.
53. Sufficient opportunity was given to the Plaintiff, and he chose to forgo that opportunity. There can be no argument that he was removed from the judgement seat without consideration of his rights. To allow the plaintiff to re-litigate would amount to a waste of judicial resources, would result in contradictory or conflicting orders, would force the defendant to incur unnecessary costs and would deprive the Defendant of the fruits of the judgement. The proceeding is an abuse of process.

Whether the proceedings fail to disclose a cause of action?

54. In Lyn v Yaku [2017] PGSC 6; SC1574, the Supreme Court held that pursuant to section 4^[14] of the Frauds Act, there is no cause of action where there is no written document confirming the oral agreement of sale of land between the parties.
    
55. Like Lyn v Yakui, the Plaintiff does not have a case for specific performance by operation of section 4 of the Frauds Act.
    
56. There is also the additional matter of the Plaintiff’s claim at paragraph 3. He pleads that entered into the oral agreement with the Defendant’s wife because the Defendant was in Enga. He pleads no other material facts which would establish a nexus between the purported individual and the Defendant. He has not named the individual other than stating that it was the defendant’s wife.
    
57. The pleading is ambiguous and, on its face, indicates that the plaintiff entered into an agreement with a person who had no capacity to enter into the agreement.
    
58. The law on pleadings and the requirement to plead sufficient facts is settled in this jurisdiction: see Kamuri v Pomoso [2021] PGSC 3; SC2071^[15]. The Court stated at paragraph 49:
    

“49..., the statements of claim seem to plead relevant evidence, however, pleading evidence is not the same as pleading material facts. It is trite to observe that, in pleading a statement of claim, the plaintiff must allege enough material facts to disclose a cause of action (see discussion in Bernard Cairns, Pleadings and case management (2017) 142 Precedent 4)............ In the absence of a properly framed pleading by the appellants, however, there was no scope, nor reason, for the respondents to put forward a defence to that effect.” [Emphasis mine]

59. The Statement of Claim does not disclose a reasonable cause of action.

Conclusion

60. I am satisfied that the proceedings should be summarily dismissed.
    
61. There is no claim requiring a trial on liability. The plaintiff’s claim is estopped because the issue of section 2 of the Frauds Act was determined against him in CIA 117 of 2014, and he failed to prosecute it on appeal in SC 92 of 2018.
    
62. The proceeding is an abuse as the plaintiff did not prosecute his appeal in SC 92 of 2018. He waited 4 years and 10 months and following the dismissal of his appeal for want of prosecution, filed fresh proceedings.
    
63. There is no written document confirming an oral agreement for the sale of land as such by operation of section 4 of the Frauds Act, there is no cause of action.
64. Finally, the Statement of Claim is ambiguous. It does not provide sufficient facts that would create a nexus between the plaintiff and defendant. It does not disclose a cause of action.

Costs

65. The award of costs is a discretionary matter and as such I must be satisfied that there is a proper basis.
    
66. Costs is prescribed under Order 22 of the National Court Rules. In determining whether to award costs, I have considered the circumstances of the case. I consider here whether costs on an indemnity basis is warranted. In doing so, I adopt and apply Shepherd J’s decision in Opi v Telikom PNG Ltd (2020) N8290^[16]. His Honour reviewed the authorities and summarized the principles governing costs on an indemnity basis as follows:
    

“(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.”

67. The position that costs should be awarded on an indemnity basis where the case results in needless fees for the defending party and is a waste of court time and resources is affirmed in Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015 and adopted in State v Kalaut [2022] PGSC 45; SC2246, Angoman v Angoman [2019] PGSC 129; SC2074 and Hole v Mana [2016] PGSC 55; SC1536.
    
68. Specifically, the Court in State v Kalaut in adopting Rimbunan Hijau (PNG) Ltd v Enei [2019] PGSC 73; SC1859, expressed that costs on an indemnity basis is necessitated when parties attempt to rehash issues already determined. While based on slip rule applications, I find that the principle is applicable in situations where parties are attempting to relitigated issues already determined in previous proceedings. A judgment is final, and a party is entitled to the fruits of the judgment. Like unmeritorious slip applications, multiplicity of proceedings rehashing the same underlying subject matter result in the undesired consequence of unnecessary cost being incurred by a defending party and scares juridical time and resources being exhausted.
    
69. The circumstances of this case demonstrate that costs should be awarded on an indemnity basis. The forewarning letter dated 24 November 2023 to Mr. Lome was extensive. It informed the plaintiff to reconsider its position and discontinue the proceedings.
    
70. The Plaintiff shall pay the Defendant’s costs on a full indemnity basis.

Orders

71. The Orders of the Court are as follows:
    1. Pursuant to Order 10, Rule 9A (15) (1) (b) (2)(d), Order 12, Rule 40 and Order 8, Rule 27 of the National Court Rules, the proceeding is dismissed for failure to disclose a reasonable cause of action and abuse of process.
    2. The Plaintiff shall pay the Defendant’s cost of the proceeding on full indemnity basis, to be taxed, if not agreed.
    3. The time of entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith.
       

Jeffersons Lawyers: Lawyers for the Plaintiff
Kandawalyn Lawyers: Lawyers for the Defendant

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^[1] at paragraph 27
^[2] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 at paragraph 18 adopting and applying Fullagar J. in Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446, at p 466
^[3] per Injia DCJ (as he then was) at paragraph 16
^[4] Refer to note 4
^[5] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 per Gibbs C.J., Mason and Aickin JJ at paragraph 17.
^[6] per Injia DCJ (as then was) at paragraph 17 and 29.
^[7] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 per Gibbs C.J., Mason and Aickin JJ at paragraph 22 applying Sir James Wigram V.C. in Henderson v. Henderson (1843) 3 Hare, at p 115 (67 ER, at p 319).
^[8] At paragraphs 125-138
^[9] [1981] HCA 45
^[10] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 per Gibbs C.J., Mason and Aickin JJ at paragraph 36
^[11] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 per Gibbs C.J., Mason and Aickin JJ at paragraph 38-42

^[12] At paragraph 40
^[13] ; [2005] HCA 12; (2006) 223 CLR 1 at [34]- [36]
^[14] CONTRACTS FOR THE SALE OF LAND, ETC.
No action shall be brought upon a contract for the sale or other disposition of land or an interest in land unless the contract, or some note or memorandum of the contract, upon which the action is brought is in writing signed–
(a) by the person against whom the action is brought; or
^[15] at paragraphs 45-50
^[16] At paragraph 235