McNamara v Gonjuan [2024] PGNC 443; N11113 (13 December 2024)

N11113

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 100 OF 2019

BETWEEN:
COLLEEN GONJUAN McNAMARA
Plaintiff

AND:
JOHN WESLEY GONJUAN
Defendant

WAIGANI: MANUHU J
7 JUNE 2022
13 DECEMBER 2024

REAL PROPERTY – Joint tenants – Legal Interest- Equitable Interest- Housing loan – Discharge of mortgage.

Cases cited

Mudge and Mudge v. Secretary for Lands [1985] PNGLR 382
Emmas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215
Mugau Miamai v. Nungot Banick (2013) N4955
Maso v Ume [2021] N9122

Counsel

J. F. Unua for the plaintiff
E. Mapio for the defendant

1. MANUHU, J: The parties met in Lae in 2001 before they moved to Port Moresby. They had children of their previous marriages and adopted Jayleen and Jeremiah during their relationship. In 2005, they obtained a bank loan from BSP under the First Home Ownership Scheme to purchase the subject property. With the loan, they obtained ownership of a property described as Allotment 10 Section 93 Spoonbill Street, Gordon, Port Moresby, NCD, as joint tenants, which is now the subject of this proceeding. The title deed reflects the joint tenancy.
2. The relationship turned sour and irreparable in 2009. The marriage fell apart and the parties are living separately. The children are living with the Plaintiff. The Defendant is living in the property allegedly with a new wife. The Defendant has not been supporting the children since the split. The Plaintiff is obviously unhappy that she is not living in the property.

3. By way of an originating summons, the Plaintiff seeks the following:

1. a Declaration that the property described as Allotment 10 Section 39, Spoonbill Street Gordon, Port Moresby, NCD, comprised in State Lease volume 72, Folio 41, is jointly owned by the Plaintiff and Defendant as joint tenants.
2. a Declaration that the Plaintiff is entitled to her 50% share of the property.
3. an Order that the Defendant sell the property at the best possible price and pays the Plaintiff her 50% share of the proceeds of sale;
   

4. The issue therefore is whether the Declarations and Order sought can be granted?

5. Under s. 33 of the Land Registration Act 1981, the registered proprietor of an estate or interest holds it absolutely free from all encumbrances. Under s. 34 of the said Act, where two or more persons are registered as joint proprietors of an estate or interest, they are entitled to that estate or interest as joint tenants. See Mudge and Mudge v. Secretary for Lands [1985] PNGLR 382, a decision of the Supreme Court which upheld the principle of indefeasibility of title. See also the case of Emmas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215, another decision of the Supreme Court, which reaffirmed the principle.

6. A joint tenancy confers equal rights and obligations of the whole property to the joint tenants. Thus, there is a right of survivorship. Where one joint tenant dies, the surviving joint tenant automatically becomes the sole owner. However, the parties may choose to split their interests in the property either by severance to tenancy in common or by outright purchase of the parting joint tenant’s interest by the other joint tenant or by a third party as prayed for by the Plaintiff. See Mugau Miamai v. Nungot Banick (2013) N4955) and Maso v Ume [2021] N9122.

7. Furthermore, in a joint tenancy, severance or sale must be agreed to by the joint tenants. However, I am so satisfied that the relationship between the parties is beyond any hope of salvage. Thus, it is unlikely that the parties would reach an agreement on how to deal with the dispute regarding the property.
8. I note that the Plaintiff may also be entitled to seek redress under s. 15 of the Married Women’s Property Act 1953, which provides:

“15. SUMMARY DETERMINATION OF QUESTIONS AS TO PROPERTY.

(1) If a dispute arises between husband and wife as to the title to or possession of any property–

(a) the husband or the wife; or

(b) a person, bank, company, public body, society or public officer in whose books any property of either spouse is standing,

may apply in a summary way to a Judge for an order declaring the title to, or the right to, the possession of the property.

(2) On an application under Subsection (1) the Judge may–

(a) make such order–

(i) with respect to the property in dispute; and

(ii) as to the costs of and consequent on the application,

as he thinks proper; or

(b) direct–

(i) the application to stand over from time to time; and

(ii) such inquiry to be made touching the matters in question as he thinks proper.

(3) If either party so requires, the Judge may hear an application under this section in chambers.

(4) For the purposes of costs or otherwise in an application under this section, a person, bank, company, public body, society or public officer referred to in Subsection (1) shall be deemed to be a stakeholder only.” (my emphasis in italics)

9. However, what I do not understand is that the Plaintiff did nothing until 2019, a lapse of 10 years, before she filed this proceeding.

10. According to the Defendant it was not intended that the Plaintiff be included as a joint tenant. She became a joint tenant as a precondition to the grant of the housing loan. The Plaintiff did not contribute any collateral or security towards the purchase of the property and did not assist in the repayment of the loan. The Defendant has been solely servicing the loan from his Kundu Account Number 1000090042, and his Visa Account number 7004729709. This may be the explanation for the lack of interest until 10 years after the break up.

11. I accept the Defendant’s evidence that there was no intention to jointly own the property. This evidence is supported by absence of any contribution by the Plaintiff towards the purchase of the property and or repayment of the loan. 12. The Defendant has been servicing the loan by himself. There is insufficient evidence to determine the status of their marriage. Similarly, there is insufficient evidence on the adoption of Jayleen and Jeremiah. The lapse of 10 years to bring an action also supports the finding that joint tenancy was not intended.

13. In any case, at the time the proceeding was commenced, the bank account statements show that the Defendant was still repaying the loan. The title deed shows that the mortgage has not been discharged. Any sale of the mortgaged property would thus be subject to the lending bank’s consent. The lending bank is not a party to this proceeding.

14. In the circumstances, I find that the Plaintiff has failed to establish on the balance of probabilities that she is entitled to the reliefs she seeks in the originating process. Accordingly, the proceeding is dismissed with costs which, if not agreed, shall be taxed.

Orders accordingly.

________________________________________________________________
Lawyer for the plaintiff: Public Solicitor
Lawyers for the defendant: Jema Lawyers