Augerea v The Bank South Pacific Ltd [2007] PGSC 12; SC869 (13 September 2007)

SC869

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 70 OF 2005

BETWEEN:

RAGE AUGEREA & MAUREEN AUGEREA
Appellant

AND

THE BANK SOUTH PACIFIC LIMITED
Respondent

Waigani: Salika, Jalina and Kandakasi, JJ.

2007: 30 August
13 September

BANKS AND CUSTOMERS – Duty of bank – Banks have duty to be transparent and fair with their clients, keep accurate and correct records of their clients accounts and render accurate monthly statements – Where errors appear on the accounts, banks under duty to satisfactorily explain and correct them with no penalty to client unless it is the clients doing – When negotiating and entering into an agreement with a client banks under a duty to ensure clients get independent legal advice.

JUDGEMENTS AND ORDERS – Entry of Summary Judgment – Discretionary matter for the Court – Court must exercise discretion with care and caution – Discretion can be exercised in the clearest of cases where there is no serious contest and issue or conflict on the facts or the law – Where one of the parties is not legally represented court under duty to carefully consider all issues raised – Inappropriate to sign summary judgment where there is serious conflict in the facts and the law.

MORTGAGES – Nature of mortgages – Mortgages are mortgages only – Mortgagor has right of redemption until contract of sale signed with a third party – Right of redemption can not be clogged or fettered – Higher interests rates and charges and unreasonable or unexplained action on mortgagees leading to exercise of mortgagee right of foreclosure could amount unjust enrichment and a clog or fetter on mortgagor’s right of redemption –Provisions allowing for higher interest rates and charges amount to a clog or fetter on mortgagors right of redemption and are unenforceable – Inequality in bargain power leading to a mortgage may render mortgage unenforceable.

Cases Cited
Papua New Guinean Cases

Provincial Government of North Solomons v. Pacific Architecture Pty. Limited [1992] PNGLR 145.
PNG Forest Products v. The State [1992] PNGLR 85.
Bruce Tsang -v- Credit Corporation (PNG) Ltd [1993] PNGLR 112.
Curtain Bros (Qld) Pty Ltd & Kinhill Kramer Pty Ltd -v- The State [1993] PNGLR 285.
Kora Gene v. Motor Vehicles Insurance (PNG) Trust [1995] PNGLR 344.
Gabriel Apio Irafawe v. Yauwe Riyong (1996) N1915.
Ronny Wabia v BP Exploration Co Ltd & Ors [1998] PNGLR 8.
Ning’s Trading Pty Ltd v. ANZ Banking Group (PNG) Ltd (1998) N1700.
Eliakim Laki & Ors v. Maurice Alaluku & Ors (2000) N2001.
Jack Livinai Patterson v. National Capital District Commission (2001) N2145.
Golobadana No 35 Ltd v. Bank of South Pacific Limited (formerly Papua New Guinea Banking Corporation) (2002) N2309.
Negiso Investments Limited v. PNGBC Limited (2003) N2439.
Pius Nui v. Senior Sergeant Mas Tauda & Ors (2004) N2765.
Kerry Lerro trading as Hulu Hara Investments Ltd v. Philip Stagg, Valentine Kambori & The State (2006) N3950.
Dr. Florian Gubon Trading as Gubon Lawyers v. Pacific Mobile Communication Limited (2006) N3104.

Overseas Cases

Crickmore v. Freestone [1870] 40 L.J. Ch. 137.
Read v. Brown [1888] UKLawRpKQB 186; (1888) 22 QBD 128.
Attorney General of the Duchy of Lancaster v. London and North Western Railway Co. [1892] UKLawRpCh 134; [1892] 3 Ch 274.
Fitzgerald’s Trustee v. Mellersh [1892] UKLawRpCh 13; [1892] 1 Ch. 385.
Booth v. The Salvation Army Building Association (Limited) ( 1897) 14 T.L.R. 3.
Hubbuck & Sons Ltd v. Wilkinson Heywood & Clark Ltd [1898] UKLawRpKQB 176; [1899] 1 QB 86; [1895-9] AII ER Rep 244.
Nokes & Core Ltd v. Rice [1902] A.C. 24.
Seton v. Played (1902) 7 verse Jun. 265, at 273; E.R. 108.
Reeve v. Lesly [1902] UKLawRpAC 35; [1902] A.C. 461.
Dyson v. Attorney General [1911] I KB 410.
Fairclough v. Swan Brewery Co. Ltd [1912] A.C. 565.
Kreglinger v. New Patagonia Meat & Cold Storage Stores Co. Ltd. [1914] A.C. 25.
Nagle v. Feilden [1966] I AII ER 689 at 697 [1966] 2QB 633
Wanner v. Caruana [1974] 2 N.S.W.L.R. 301.
Re. Supreme Court Registrar to Alexander Dawson Inc. [1976] 1 N.Z.L.R. 612.
Allen v. Gulf Oil Refining Ltd [1980] UKHL 9; [1981] 1 All ER 353.

Counsel

The Appellants in Person.
Mr. T. Anis, for the Respondent.

13 September, 2007

1. BY THE COURT: On Friday 31 August, 2007 we announced the decision of the Court, upholding the appeal by Rage and Maureen Augerea and consequential orders and undertook to publish our reasons in full, which we now do.

2. Rage and Maureen Augerea are appealing against the National Court entering summary judgment against them in favour of Bank South Pacific Limited out of a mortgagor and mortgagee relationship. The Augereas’ say they seriously contested the basis for the judgment in terms of their alleged default, amount of default and total outstanding on an initial housing loan of K25,000.00, which suddenly increased to K128,380.99 and the alleged issuance of more than one default notice. They also say that, they took serious steps toward repaying the total owing on the loan so as to redeem their property but the bank ignored them and proceeded with its mortgagee powers. They further argue that the learned trial judge did not address these issues properly and erred in entering summary judgment against them when there was serious factual and legal conflict that could only be properly resolved by a trial. The bank argues to the contrary.

Relevant Issues

3. It is clear to us that the main issue for us to determine is whether the National Court was correct in signing summary judgment when there was a serious contest on the facts and the law. The application and in particular the pleadings and the arguments put before the National court gave rise to a number of issues which we consider are subsidiary to the main issue. Some of the issues we can identify are:

1. When did the Augerea’s default and if so by how much?

2. How much was correctly and reasonably due and owing to the Bank?

3. Did the Bank serve any default notice on the Augereas and if so, how many and when?

4. Did the bank give the Augereas a fair and reasonable opportunity to redeem their property? And

5. Were the rates at which interests and charges were calculated and added onto the Augereas’ account fair and reasonable and not in effect a penalty and a clog or fetter on the Augereas’ right of redemption of their property as mortgagors?

4. The subsidiary issues can be covered in our consideration and determination of the main issue. These subsidiary issues as well as the main issue can be properly determined by reference to the relevant law and the facts of the case then before the National Court and now before us by way of this appeal.

5. The law on summary judgment is well settled in our jurisdiction. The starting point is O 12 r 38 of the National Court Rules. The decision of this Court in the case of Bruce Tsang -v- Credit Corporation (PNG) Ltd [1] enunciated and settled the relevant principles, which the decision of the Supreme Court in the subsequent case of Curtain Bros (Qld) Pty Ltd & Kinhill Kramer Pty Ltd -v- The State[2] followed. In both decisions of the Supreme Court, the Court said at 117 and 288 respectively:

"There are two elements involved in this rule:

(a) evidence of the facts proving the essential elements of the claim; and

(b) that the plaintiff or some responsible person gives evidence that in his belief there is no defence.

As to the second element, the plaintiff must show in absence of any defence or evidence from the defendant that in his belief, the defendant has no defence. If a defence is filed or evidence is given by the defendant, as in this case, the plaintiff must show that, upon the facts and/or the law, the defendant has no defence. The plaintiff will not be entitled to summary judgment if there is a serious conflict on questions of fact or law. Whether a case should go to trial on these issues will be determined on the facts of each case."

6. The first of these two requirements is usually met by filing affidavits by the party applying for summary judgment. In the case of a natural person suing, the affidavit would ordinarily come from himself or herself with the support of any direct and relevant witness. Where a legal person is suing, the affidavit and the relevant evidence would come from a responsible person with the company organization who has the personal knowledge and involvement with regard to the matters pleaded and in issue.

7. As for the second requirement, we are of the view that, what the Supreme Court has already been said need to be added or elaborated upon. In our view, the requirement would be met if a plaintiff applying for summary judgment is not only able to provide evidence of the facts relied upon to support his or her case but, he must also demonstrate by appropriate evidence that the defence filed by the defendant can not be sustained on the facts or the law as the case might be. In other words, it is not sufficient for a plaintiff applicant to say that in his belief the defendant has no defence, unless he is able to demonstrate with the support of appropriate evidence, the basis for holding that belief.

8. We note the position is no different to an application for an order to set aside a default judgment. Accordingly, we are of the view that, what the Supreme Court said in Provincial Government of North Solomons v. Pacific Architecture Pty. Limited[3] is both helpful and appropriate. There the Supreme Court said, a defendant who is applying for an order to set aside a default judgment, must disclose by affidavit, facts disclosing a defence on the merits. In other words, it is not enough to say I have a defence on the merits. The applicant must produce affidavit evidence which disclose facts which in turn disclose a defence on the merits.

9. In our view, it follows that, in the case of an application for summary judgment, the applicant, being the plaintiff, must provide affidavit evidence disclosing facts not only supporting his or her claim but also displacing any defence filed by the defendant and or affidavit trying to establish a defence on the merits. The Court hearing an application for summary judgment must be satisfied that there is no serious conflict on the questions of fact or law presented before him or her. It should follow that, where there is clear conflict in the facts or the law and the Court has to make a decision as to which of two conflicting versions the Court must accept, the matter ought to be put to a proper trial, where witnesses and their evidence and or testimonies can be tested in the usual way of cross examination and re-examination, before the Court can decide to accept one of the versions.

10. What is clear also from our reading of some of the authorities on point is that, whether or not judgment ought to be entered, is a matter within the discretion of the judge or the Court hearing the application for summary judgment. It is similar to the discretion vested in the Court to dismiss a claim or defence for failure to disclose a reasonable cause of action or defence. In our view, Kandakasi J., reviewed most of the authorities on point and correctly summarized the current legal position in that regard in the following way in his judgment in the case of Kerry Lerro trading as Hulu Hara Investments Ltd v. Philip Stagg, Valentine Kambori & The State:[4]

"1. Our judicial system should never permit a plaintiff or a defendant to be ‘driven from the judgment seat’ in a summary way, ‘without a Court having considered his right to be heard.’ [5] A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside.[6]

2. At the same time however, the law such as the Rules under consideration provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court.

3. The object of these rules are therefore ‘to stop cases which ought not to be launched — cases which are obviously frivolous or vexatious or obviously unsustainable.’[7] In other words ‘the object of the rule was to get rid of frivolous actions.’[8]

4. A claim may be frivolous if it can be characterized as so obviously untenable that it cannot possibly succeed or that the claim or defence is bound to fail if it proceeds to trial.

5. A claim or defence may be vexatious if the case amounts to a sham or one which cannot succeed and is one that amounts to harassment of the opposing party who is unnecessarily put to the trouble and expenses of defending or proving the claim.[9]

6. With regard to the issue of disclosing a reasonable cause of action or defence, the Court must be clear that there are two parts to the phrase ‘cause of action’. First, it entails a right given by law such as an entitlement to reasonable damages for breach of human rights under s. 58 of the Constitution, commonly referred to as the "form of action". Secondly, it entails the pleadings disclosing all the necessary facts which give rise to the form of action.[10]

7. The phrase "cause of action" could thus be defined in terms of a legal right or form of action known to law with:

‘every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise of every piece of evidence which is necessary to prove each fact, but every fact is necessary to be proved.’[11]

A statement of claim or a defence (as the case may be) must therefore clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and relevant and necessary facts (not the evidence) giving rise to the form of action.[12] It follows therefore that, where a statement of claim or a defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, [13] and instead leaves it to guess work, it should be struck out.[14]

These rules provide a summary judgment procedure or remedy which is available to a plaintiff or a defendant, and one which vests and calls for an exercise of a discretion by the Court.

The discretion must be exercised sparingly and only in a case where the statement of claim or the defence (as the case might be) is ‘obviously and almost incontestably bad.’ In other words this discretion can be exercised only in cases that ‘are plain and obvious so that the master or Judge can say at once that the statement of claim [or defence] as it stands, is insufficient, even if proved, to entitle the plaintiff [defendant] to what he asks’[15] for."

11. Of course, we note that, these principles apply to pleadings only whilst an application for summary judgment goes beyond the pleadings and require consideration of evidence adduced in support of the matters pleaded. They are however, both summary processes and calls for an exercise of discretion vested in the Court. An exercise of that discretion has the potential of shutting out a defendant or a plaintiff from being heard in his or her defence or his or her claim in a trial proper before final judgment. Accordingly, we are of the view that, the above principles equally apply to summary judgment applications with the necessary modifications. In the end, it requires careful consideration and judgment on the part of the Court. Much care and caution is required because of the potential these summary processes have of shutting out the defendant or the plaintiff from going to trial and having his or her day in court and being heard in his or her claim or defence before judgment is finally pronounced.

12. Bearing these principles in mind, we now turn to the case before us and note firstly that, the Augereas filed and served a defence. They also filed and served affidavits in rebuttal of the ones that were filed for the Bank. The Augerea’s were at all times, not legally represented. The Banks affidavit evidence came from a John Maddison and the Bank was legally represented by a well established law firm.

13. In order for the trial judge to correctly sign summary judgment against the Augereas, he was duty bound to ensure that the Augereas’ concerns and the areas they were disputing were properly addressed and concluded with a finding that, there was no conflict both on the facts and the law and it was a clear and straight forward case for the signing of summary judgment. Given that the Augerea’s were not legally represented, the Court was further duty bound to carefully consider the issues before coming to his decision. The question then is did the learned trial judge discharge that duty? This requires an examination of what the Augerea’s claimed and how the learned trial judge dealt their claims.

14. One of the main issues the Augereas raised was the accuracy of the statement of accounts the Bank provided them. To illustrate that point, Mr. Augerea took us to annexure 1 of his affidavit of 14 February 2005, which is a statement provided by the Bank covering the period 18 April 1996 to 23 September 1996. This statement shows repayments of K98 at fortnightly intervals, which was the agreed amount of repayment, from 18 April 1996 to 25 July 1996. Instead of each of these amounts reducing the balance owing by the amount of repayment, the reduction was less than the amounts actually paid, for example, as at the first payment on 18 April 1996, the balance owing was K22,739.66. The payment of the K98 should have had the amount owing reduced to K22,641.66 but the Bank had it reduced to K22,694.00 producing a difference of K52.34. These continued in the subsequent payments and the corresponding reduction on the amount owing by a difference of over K52.00 each time. Then on 12 September 1996, the Augereas made an advance payment of K2,940. The balance owing as at the time of that payment was K22,464.15. That advance payment would have had the amount owing to K19, 524.15 but the bank had it reduced to K20,994.25, producing a difference of K1,470.10. The Bank does not say and there is no evidence of the Bank providing regular monthly statements for other periods so it is hard to tell if these errors continued or were corrected.

15. The Bank provided no explanation whatsoever for this apparent error. Where did the difference of K52.00 plus go each time the Augereas’ made their fortnightly repayments? Similarly where did the difference of K1,470.10 go when the Augereas made the advance payment on 12 September 1996? Did that money get absolved in fees and interests and other charges? Just what was the Banks explanation? Did the Bank correct the errors or did it continue to carry them over? The Bank failed to provide any explanation either on the statements it may have provided the Augereas in the affidavit provided in support of its application for summary judgment. This was critically important especially when there was a challenge on the accuracy of the statement of the accounts.

16. In our view, all banks have a duty to maintain and keep accurate records and accounts of their customers and keep the customers regularly and accurately informed of all activity and the status of their accounts on a monthly basis. This is necessary for the sake of transparency, avoiding surprises and to avoid mistakes or any anomalies of the kind identified in this case from being carried over and instead have them detected earlier on and rectified. This is the least a bank can do given that, they alone have control over their charges and fees and the calculation of interests and application of them to a customer’s account. A bank’s customer usually has no control over these things. Where errors or anomalies appear, banks also have a duty to provide a satisfactory explanation for them and correct them without delay and at no costs and penalty against the customer unless the customer forced the error at the first place on the bank.

17. In the present case, during the hearing of the appeal we repeatedly asked Mr. Anis, lawyer for the Bank, to take us to the evidence in the Bank’s affidavit demonstrating a regular provision of accurate monthly statements of the Augereas’ accounts up to and beyond the alleged default in the repayments by the Augereas showing how the account was building up against the Augerea’s up to the final figure of K128, 380.99 claimed by the Bank in its application for summary judgment. Mr. Anis was not able to do that. Hence, it is clear to us that, on the material provided before the trial judge, the Bank failed in its duty and may have proceeded on a claim of default that may have been inaccurate. These matters can only be properly tested and or clarified at a trial proper with cross examination of the relevant witnesses.

18. Another issue raised by the Augereas is that, they received only one letter of demand and not more than that as the Bank claimed in its application. At paragraph 9 of Mr. Maddison’s affidavit of 8 February 2005, he speaks of three letters of demand respectively dated 3 June 1999, 7 February 2000 and 29 March 2000 and annexes only the one dated 3 June 1999. Neither one of the other two have been annexed nor was there any explanation as to their whereabouts or why they could not be annexed. Also, there was no evidence of how and where the letters of demand were served. Again in the light of the contest on the number of letters of demand it was necessary for the Bank to annex all of its alleged letters of demand and provide evidence as to when, where and how the letters of demand were served on the Augereas, but the Bank failed to do that.

19. Additionally, the Augereas raised the issue of their approaching in early 2000 the Westpac Bank to lend them a sum of K24,000 which they claim was the amount owing to the Respondent Bank at the time. Westpac Bank agreed to lend the money per a letter of offer dated 31 March 2000, a copy of which was produced in evidence before the trial judge. The Augereas’ tried to have the debt with the Respondent Bank settled with the Westpac bank loan but they say that the Respondent Bank made it difficult for them by suddenly and without any explanation and justification increased the total amount due and owing to K32,298.80. The Augerea’s returned to the Westpac Bank for an increase in the loan from that bank to K35,000.00 which was unsuccessful. That made it difficult for the Augerea’s to get out of the loan with the Respondent Bank. Later the amount of K35,000.00 increased to K128,380.99 in default interests and charges making it even more harder for the Augerea’s to redeem their property. Then the Bank applied for summary judgment for the now increased amount of K128, 380.99.

20. What the Augereas’ raised went into the heart of the nature of mortgages. The Bank did not rebut the Augerea’s claims and evidence at the time of pursuing its application for summary judgment in the National Court. The learned trial judge did not address this either. We find this was a serious error given the nature of mortgages and the rights of parties in a mortgage relationship. In his decision in Golobadana No 35 Ltd v. Bank of South Pacific Limited (formerly Papua New Guinea Banking Corporation),[16] Kandakasi J., correctly and exhaustively discussed the subject of a mortgagor’s right of redemption. From the discussion in that case and others on point such as the decision of Woods J in Ning’s Trading Pty Ltd v. ANZ Banking Group (PNG) Ltd,[17] the following is clear:

(a) "The right of a mortgagor to redeem his property is a fundamental characteristic of all mortgagees. "Redemption is of the very nature and essence of a mortgage, as mortgages are regarded in equity. It is inherent in the thing itself."[18]

(b) Equity guards jealously the right of the mortgagor to redeem and whenever it is faced with the challenge "will not permit any devise or contrivance designed or calculate to prevent or impede redemption." This accords well with the age-old principle in the law of mortgages that "Once a mortgage always a mortgage:"[19]

(c) There are numerous authorities dealing with clogs or fetters on the equitable right of redemption. These authorities reveal a number of principles:

Firstly, a mortgage cannot be made irredeemable, and equity will not permit any devise or contrivance being part of the mortgage transaction or contemporaneous with it calculated to prevent or impede redemption.[20] However, there is nothing preventing the mortgagor from giving to the mortgagee by a separate transaction and independent from the granting of the mortgage an option to purchase the property.[21] Of course, whether the grant of the option is part and partial of the mortgage transaction is to be determined as a matter of substance rather than form. As the mere separation of the documents will not of itself affect the existence of a "clog" on the equity of redemption[22];

Secondly, the right to redeem cannot be rendered negatory or illusory;

Thirdly, in the area of "collateral advantages," the authorities do allow for collateral advantages to be given by a mortgagor to a mortgagee in consideration for a loan to him or her. Such collaterals could be upheld only if they are "not either (1) unfair and unconscionable, or (2) in the nature of the penalty clogging the equity of redemption or (3) inconsistent with or repugnant to the contractual and equitable right to redeem;

Finally, there are cases that could be classified as miscellaneous areas. In these areas some authorities have shown a reluctance to uphold a covenant that seeks to clog or unnecessarily fetter a mortgagor’s right of redemption. These include covenants for a repayment of a greater amount than that advanced.[23] Similar positions have been taken in cases containing covenants requiring a payment of a higher rate of interest upon default which may be seen as a penalty.[24] Other cases have indicated a preparedness to strike down covenants in mortgages that seemed to impose unreasonable time periods for late redemption.[25] Furthermore, some authorities have indicated a preparedness to strike down covenants which seek to prevent a mortgagor from redeeming his property on the contractual date for repayment,[26] and as earlier noted after the contractual date for repayment.

(d) The right in a mortgagor to redeem exists until a contract of sale has been signed between a mortgagee and a third party in the case of a mortgagee exercising his right of sale".

(emphasis in bold is ours)

21. In the case before us now, we have already noted that the Bank’s affidavit filed and relied upon in support of its application for summary judgment, does not address and rebut in any manner or form the Augerea’s claims of having arranged with a Westpac Bank loan on the amounts then owing to the Respondent Bank as at the time of their application to Westpac Bank. We additionally, note that, Mr. Maddison who deposed to the Bank’s affidavit, without addressing the Augereas’ claims of inaccuracies in the statements and therefore the Banks claims of default, the number of defaults and the amounts due and owing on their loan account as well as the Westpac Bank loan, went straight into talking about a default of K32,317.25 and an application of a variable indicator lending rate of 17.28 percent per annum and then a 25.25 percent accruing interest rate which later reduced to 22.00 percent on 2 January 2005. The effect of all these was that it substantially increased the Augereas’ indebtedness to the Bank up to a sum of K128, 380.99 from an initial loan of K25,000.00 without discounting the repayments that were made.

22. As can be seen, the Bank was claiming well over 100 percent recovery on its initial loan of K25,000.00. This came about with the Bank’s claiming and adding onto the loan account much higher interest rates from an initial agreed rate of 6 percent. These interests as far as we can see, were unreasonably high and were obviously intended to penalize the Augereas rather than a reasonable arrangement for a recovery of what the Bank lent and the Augereas agreed to repay with interests and charges. As has been clearly demonstrated by what happened, these unreasonable interest rates and charges that were imposed against the Augerea’s and the Banks attitude, effectively prevented the Augereas as mortgagors from redeeming their property.

23. Whilst we accept that there was an agreement between the Augereas and the Bank for application of the kind of charges and interest rates the Bank charge and imposed against the Augereas, the Banks actions did amount to a serious penalty, through which the Bank was trying to unjustly and unreasonably enrich itself over and above what was reasonably due to it. We find that the default provisions and the banks attitude as clearly unreasonable impediments, clogs or fetters on the Augereas as mortgagors right of redemption of their property. Accordingly, the interest rates and charges and the kind of attitude shown by the Bank should not be permitted, allowed or enforced in just, fair and democratic society such as ours.

24. Further we do not consider that the Bank and the Augerea’s were in an equal bargaining position at the time of signing the initial loan agreement and the subsequent variations thereto up to even the date of the summary judgment against them. There was a serious imbalance between the parties. The Bank had its legal and experience loan or lending team working for it and advancing its cause whilst the Augereas were mere employees with no independent legal advice. There is no evidence of the Bank requiring and in fact ensuring that the Augereas were legally represented or did have legal advice on the terms of the loan before accepting the loan from the Bank. Even if they had legal advice, that would not have made any difference because reality of the situation was that the Augerea’s were in a no win position because the banks usually set the interest rates and terms of the loan and are usually not flexible. A customer would therefore have no choice but to accept such terms. If that was not the case, the burden was on the Bank to provide evidence of a fairly negotiated loan and mortgage, but it did not provide any such evidence.

25. Fairness and equality in all negotiations leading to any agreement has now become a concern of Parliament and it has enacted the Fairness of Transactions Act 1993. That Act has been considered with some detail in one case and was considered and applied in another case. The first case to do that was in the case of Negiso Investments Limited v. PNGBC Limited[27] and the second was in the case of Dr. Florian Gubon Trading as Gubon Lawyers v. Pacific Mobile Communication Linited.[28] The Act allows for a review of agreements or contracts that are considered unfair. As was observed in the second case, the Act did not introduce something that was new. It merely reinstated and reaffirmed the position at common law which has already been adopted and applied by the courts in our jurisdictions as in the case of Kora Gene v. Motor Vehicles Insurance (PNG) Trust.[29] Appling those principles the Courts have already struck down agreements that were considered unfair because of inequality in the bargaining powers of the parties.

26. The foregoing factual and legal issues were properly raised and presented before the trial judge as best as the Augereas’ could, appreciating that they were not legally represented. The trial judge was duty bound to consider the issues they raised before taking the drastic step of signing summary judgment against them and thereby completely shutting them out save only for their right of appeal. If the trial judge did in fact take the time to consider those issues and did consider them, he would have found that it was not a straight forward case. He would have found that there were serious conflicts on the facts and the law and that it was not a case all going in favour of the Bank in order to lay the basis to grant the Banks application. We find that the trial judge was too quick to sign summary judgment and did not exercise any care and caution before doing so. We respectfully find that the learned trial judge clearly failed in his duty.

27. In the end, we find that the learned trial judge did fall into serious errors when he decided to sign summary judgment for the Bank. Accordingly, we would uphold the appeal and quash the decision the subject of the appeal and remit the matter to the National Court for proper pre-trialing and listing for a trial proper. We would order costs against the Respondent Bank.

_____________________

Appellants in Person
Blake Dawson Waldron Lawyers: Lawyers for the Respondent

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^[1] [1993] PNGLR 112.
^[2] [1993] PNGLR 285.
^[3] [1992] PNGLR 145.
^[4] (2006) N3950.
^[5] Per Fletcher Moulton LJ in Dyson v. Attorney General [1911] I KB 410 at 414, 419 cited in PNG Forest Products v. The State [1992] PNGLR 85. For similar comments or statements see Nagle -v- Feilden [1966] I AII ER 689 at 697 [1966] 2QB 633, per Salmon LJ at page 651 and Lord Wilberforce in Allen -v- Gulf Oil Refining Ltd [1980] UKHL 9; [1981] 1 All ER 353 at page 355; [1981] AC 1000 at 1010 — 1111.
^[6] PNG Forest Products v. The State (supra).
^[7] Per Lindley LJ, in Attorney General of the Duchy of Lancaster v. London and North Western Railway Co. [1892] UKLawRpCh 134; [1892] 3 Ch 274, at 277, in the context of the then English Rules, Order 25 Rule 4 of the 1883 English Rules of the Supreme Court (similar to ours)
^[8] Per Lopes LJ in Attorney General of the Duchy of Lancaster v. London and North Western Railway Co. [1892] 3 Ch 724 at 277.
^[9] Per Suva J.in Ronny Wabia v BP Exploration Co Ltd & Ors [1998] PNGLR 8 cited by Canning J. in Pius Nui v. Senior Sergeant Mas Tauda & Ors (2004) N2765.
^[10] Per Kirriwom J. in Gabriel Apio Irafawe v. Yauwe Riyong (1996) N1915.
^[11] Per Lord Esher MR with whom Fry LJ and Lopes LJ agree at p.131 in Read v. Brown [1888] UKLawRpKQB 186; (1888) 22 QBD 128 in Gabriel Apio Irafawe v. Yauwe Riyong (supra note 9).
^[12] Per Cannings J. in Kiee Toap v. The State & Ors (supra note 4) and my decision in Jack Livinai Patterson v. National Capital District Commission (2001) N2145.
^[13] Per Kirriwom J., in Gabriel Apio Irafawe v Yauwe Riyong (supra note 9).
^[14] Per Sevua J., in Eliakim Laki & Ors v. Maurice Alaluku & Ors (2000) N2001.
^[15] Per Lindley, MR; in Hubbuck & Sons Ltd v. Wilkinson Heywood & Clark Ltd [1898] UKLawRpKQB 176; [1899] 1 QB 86 at pp. 90-91; [1895-9] AII ER Rep 244 at 247, cited in PNG Forest Products v. The State (supra note 5).
^[16] (2002) N2309.
^[17] (1998) N1700.
^[18] Per Lord Macnaghten in Nokes & Core Ltd v. Rice [1902] A.C. 24, at p. 30:
^[19] See Seton v. Played (1902) 7 verse Jun. 265, at 273; E.R. 108, at 111.
^[20] See Fairclough v.. Swan Brewery Co. Ltd [1912] A.C. 565, at. pp. 570.
^[21]See Reeve v. Lesly [1902] UKLawRpAC 35; [1902] A.C. 461; Kreglinger v. New Patagonia Meat & Cold Storage Stores Co. Ltd. [1914] A.C. 25, at pp. 53-53.
^[22] Re. Supreme Court Registrar to Alexander Dawson Inc. [1976] 1 N.Z.L.R. 612 at p.627
^[23] See Booth v. The Salvation Army Building Association (Limited) (1897) 14 T.L.R. 3.
^[24] Wanner v. Caruana [1974] 2 N.S.W.L.R. 301, at pp. 306, per Street CJ.
^[25] Fitzgerald’s Trustee v. Mellersh [1892] UKLawRpCh 13; [1892] 1 Ch. 385 at pp. 389-390.
^[26] See Crickmore v. Freestone [1870] 40 L.J. Ch. 137
^[27] (2003) N2439.
^[28] (2006) N3104.
^[29] [1995] PNGLR 344.