HBS (PNG) Ltd v Manda [2021] PGSC 1; SC2055 (4 January 2021)

SC2055

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 8 OF 2020

BETWEEN:
HBS (PNG) LIMITED
Appellant

AND:
CHRIS MANDA, ACTING SURVEYOR GENERAL
First Respondent

AND:
OSWALD TOLOPA, ACTING SECRETARY FOR LANDS AND PHYSICAL PLANNING
Second Respondent

AND:
HON. JUSTIN TKATCHENKO MP, MINISTER FOR LANDS AND PHYSICAL PLANNING
Third Respondent

AND:
BENJAMIN SAMSON, REGISTRAR OF TITLES
Fourth Respondent

AND:
SHEILA PATI HAROU AS CHAIRMAN AND MEMBERS OF THE MOROBE PROVINCIAL PHYSICAL PLANNING BOARD
Fifth Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

AND:
KEPPA JANGIKO
Seventh Respondent

Waigani: Gavara-Nanu, Hartshorn and Collier JJ
2021: On the papers
: 4^th January

SUPREME COURT APPEAL – appeal against decision of National Court to dismiss appellants application for judicial review – appeal filed pursuant to Order 10, rule 10 (Division 1) of the Supreme Court Rules - grounds of appeal raises prima facie evidence that the primary judge failed to take into account clear evidence which supported the appellants ground of review that certain processes in granting application for subdivision were not followed – appellant has proven that respondents, among others, granted application for subdivision in breach of s130 of Land Act – appeal is allowed – orders of the national Court are quashed – Costs awarded to appellant

Cases Cited:

First Assistant Secretary, Department of the Administrator v Administration of the Territory of Papua and New Guinea and Leahy (Re Portion 56, Morobe) [1972] PGLawRp 1; [1971] PNGLR 442
Olei v Provincial Land Court at Port Moresby [1984] PNGLR 295
Riri v Nusai [1995] N1375
Mondiai v Wawoi Guavi Timber Co Ltd [2007] SC886
Amben v Maru [2015] SC1422
Bewani Oil Palm Plantations Ltd v Allen [2017] N6833
Imbuni v Samson [2019] N8141

Counsel:

Mr. I. R. Shepherd, for the Appellant
Mr. R. Uware, for the First to Sixth Respondents
Mr. L. Mamu, for the Seventh Respondent

REASONS FOR JUDGMENT

4^th January, 2021

1. BY THE COURT: Before the Court is an appeal against the decision of the National Court given on 17 February 2020 at Waigani in proceeding OS (JR) No. 170 of 2019, where the Court dismissed the appellant’s application for judicial review with costs to follow the event.

2. The appellant filed an appeal pursuant to Order 10, rule 10 (Division 1) of the Supreme Court Rules.

BACKGROUND FACTS

3. Relevant background facts are set out in various affidavits, the decision of the primary Judge, and submissions of the parties.

4. The appellant is HBS (PNG) Ltd, a company incorporated in Papua New Guinea on 6^th February 2001. The appellant was previously known as HBS Machinery Limited. It is the registered proprietor of State Lease Volume 12 Folio 146 known as Portion 585 (Portion 585) Milinch Erap, Fourmil Markham Morobe Province containing an area of 7.650 hectares or thereabouts as delineated on Survey Plan Cat. No. 31/1303.

5. The State Lease for Portion 585 was initially granted to Partridge Holdings Ltd on 23^rd July 2004. It was subsequently transferred to Aba Kulame McKergow and her daughter Anna McKergow as joint tenants on 28^th August 2008.

6. A notice of death of Aba Kulame McKergow was registered on the title on 19^th March 2010. On 29^th May 2012 Anna McKergow transferred the State Lease for Portion 585 to the appellant. The transfer was registered on the same date.

7. In February 2016 the appellant commenced proceedings to evict a number of settlers from Portion 585.

8. The following relevant decisions were made concerning the State Lease:

(1) A decision dated 29^th April 2008 to register a Survey Plan of Portions 669-671 as Survey Plan Cat. No. 31/1368 (in so far as it relates to State Lease Volume 12 Folio 146 known as Portion 585 which was registered on 17^th November 2003 as Survey Plan Cat. No. 31/1303) which subdivided Portion 585 into two new Portions 671 and 669 (the first decision);

(2) A decision dated 5^th September 2014 to register a Survey Plan of Portions 936-952 as Survey Plan Cat. No. 31/1581 (in so far as it relates to State Lease Volume 12 Folio 146 known as Portion 585 which was registered on 17^th November 2003 as Survey Plan Cat. No. 31/1303) which renamed Portion 671 as Portion 936 (which is within Portion 585) and reduced its land area from 7.14 hectares to 6.99 hectares (the second decision); and

(3) A decision made on or about 22^nd February 2019 by Ms Sheila Pati Harou as Chairman and Members of the Morobe Provincial Physical Planning Board and which decision was contained in her Stop Work Notice dated 22^nd February 2019 by which it was claimed that the appellant was using State Lease Volume 12 Folio 146 known as Portion 585 without a title and required the appellant to stop work forthwith on Portion 585 (the third decision).

9. On 7^th May 2019 the appellant filed an amended originating summons in which it sought the leave of the National Court pursuant to Order 16 Rule 3 of the National Court Rules to apply for judicial review of the three decisions.

10. Relevantly, the seventh respondent, Mr Keppa Jangiko, on 23^rd January 2018 filed a Writ of Summons in the National Court in WS No. 25 of 2018 wherein he claimed that:

• He accepted a letter of offer to purchase Portion 669 from Aba Kulame McKergow and Anna McKergow in 2005 and made three instalments of payments for Portion 669;
• He engaged No. 1 Surveyors Limited to subdivide Portion 585 into Portions 669 and 671 registered as Cat. No. 31/1368;
• He made commitments to Portion 669, made improvements on the property, moved in and occupied Portion 669 from 2005 until December 2017;
• He was the registered owner of Portion 669;
• He was protected under the Land Act;
• He had patiently waited for the title of Portion 585 to be surrendered by the previous owner of Portion 585, Anna McKergow, and further transferred to Mr Jangiko so that a new title could be released as per Survey Plan No 31/1368 for Portion 669 and Portion 671;
• He had acquired an equitable interest in the property by reason of occupying it since 2005 after the subdivision; and
• At the time that HBS purported to purchase Portion 585 from Ms Anna McKergow, that Portion did not exist because it had been subdivided.
  

11. Before the primary Judge, the appellant submitted, in summary:

• The appellant made no application under s 130 of the Land Act to subdivide Portion 585 into Portions 671 and 669 or into Portions 936 and 669, resulting in the first decision;
• The appellant made no application under s 130 of the Land Act or any other provisions of that legislation to rename Portion 671 as Portion 936, resulting in the second decision;
• In relation to the third decision, the appellant was not given an opportunity to be heard before that decision was made;
• The appellant was never informed of the first decision and the second decision by any of the respondents;
• The second, third and/or fourth respondents had issued a title to the appellant for Portion 936 notwithstanding the fact that the State Lease was never surrendered, and was still in the possession of the appellant;
• The appellant never asked the Minister or his predecessor and his delegate to grant a State Lease for Portion 936.
• Mr Jangiko claimed to be the registered owner of Portion 669 notwithstanding that there was no evidence a State Lease had been issued for Portion 669.

DECISION OF THE NATIONAL COURT

12. The primary Judge commenced his consideration by reference to s 130 of the Land Act 1996.

13. His Honour observed, in summary:

• In 2008 the joint title holders to Portion 585 were Aba Kulame McKergow and Anna McKergow; and
• They were entitled pursuant to s 130 of the Land Act to make a decision to register a survey plan Portion 671 as 31/1368, which on 29^th April 2008 subdivided Portion 585 into new Portions 671 and 669.

14. His Honour continued:

2. [Mr Jangiko] was dealing with Aba Kulame McKergow and Anna McKergow since 2005. Both were joint owners of the subject portion 585 there and then and not [HBS]. Consequently, that decision did not relate to [HBS] and [HBS] was not part of it and could not be said to be affected by it. Judicial review does not lie for [HBS]. [HBS] is not a privy to that decision and therefore cannot bring the matter as [it] does now. [HBS’] application here is without merit and substance in law and is therefore dismissed forthwith.

15. His Honour accepted the evidence of Mr Jangiko that Mr and Ms McKergow had accepted the offer to purchase Portion 585, that Mr Jangiko had paid, committed to, and did pay K20,000.00, that No 1 Surveyors were engaged to subdivide Portion 585, and that on payment of the full price title would be surrendered to the Department of Lands and Physical Planning in place of two titles (namely Portion 669 and 671).

16. His Honour also accepted that, after the death of Aba Kulame McKergow, HBS sought to negotiate with Anna McKergow to sell Portion 585, at which point Mr Jangiko informed HBS of the subdivision work carried out on Portion 585 and discussed with the Managing Director and General Manager of HBS the subdivision of Portion 585 into Portions 669 and 671.

17. His Honour said:

3. [HBS] has been at liberty all along for 8 years and has not seen right to raise. It is serious to rely on the assertion that [it] raises because there is no substance nor merit in view of the alleged title documents [it] professes to have.

18. His Honour further continued:

6. Plaintiff relies on the affidavit of Robert Lesly Watkins filed the 22nd March 2019. He is the Managing Director of HBS (PNG) Limited, the plaintiff. He attests that the subject land Portion 585 Milinch Erap, Fourmil Markham Morobe Province was State Lease Volume 12 Folio 146 it was initially granted to Partridge Holdings Limited on 23rd July 2004. And was transferred to one Aba Kulame McKergow and Anna McKergow as Joint Tenants on the 28th August 2008. A notice of death was registered on 19th March 2010 and on 29th May 2012 Anna McKergow transferred the State Lease to the Plaintiff which was registered the same date. A stop work notice was delivered to the Plaintiff with a letter on the 8th January 2018. He was not given an opportunity to be heard before the decision was made to stop work made. It was on the basis that he was using Portion 585 without title to it.
7. Attached to this affidavit is annexure "A" letter addressed to Hon. Justin W. Tkatchenko under hand of John Onguglo Lease officer Momase. The letter alleges fraud and improper dealings in the subject land. That the original leaseholder was illiterate, and the surviving joint tenant took advantage and collaborate with lands officer and facilitate. This allegation is consistent with the affidavit of the seventh defendant Keppa Jangiko sworn 5^th June 2019 that portion 585 was jointly tenanted by Aba Kulame McKergow and Anna McKergow, but after the death of the mother Aba Kulame McKergow the latter took responsibility over the subject tenancy. This is a joint tenancy that was supposedly severed by the death of the other partner in tenancy. The process of law taken to accommodate this fact is not clear so that there is proper basis in law for the transition of the title. This is an important fact as it would show the transition of the title from the initial holder to the new incumbent the plaintiff. Because Judicial review is concerned with the process rather than what is the substance, Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005).
8. The evidence asserted relied on by the Plaintiff in the reliance on the title is not clear. Against his reliance is the fact that the owners copy, and the land copy differ the owners copy reveal that death notice of Aba Kulame McKergow was registered on 19th March 2010 and transfer of the property to the plaintiff and registration is on the 29th May 2012. These entries are absent on the original land file copy for 8 years. It would appear apparent that the process in law was not adhered to and would not in my view amount to compliance of section 130 of the Land Act 1996. This is pertinent and glaring to the heart here, to ignore would be to err in the application of law considering the evidence illuminated discussed. Consequently, the issues raised whether or not on the 5th September 2014 the decision then made was in breach of the law section 130 and in breach of the principles of natural Justice would be answered in the negative given. Because primarily and at the heart is that there was never any transition of title from the initial under law by that section from both Aba Kulame McKergow and Anna McKergow as joint tenants and then after death of the former to the latter and then to the plaintiff. The evidence is not conclusive because he who asserts must provide and prove. Here the required balance is on the balance of probabilities and that is not satisfied by the plaintiff to that balance. There was no surrender to subdivide as required by section 130 of the Land Act upon the Plaintiff. There is no evidence he complied in satisfaction and the title on paper is questionable and does not satisfy the doubt as the transition in law in that title from the initial in law to him. And the particulars which are set out above do not quell that against the plaintiff. He has asserted but has not discharged the required balance.

19. His Honour also found that the plaintiff could not substantiate his application relating to the stop work notice issued by the first respondent. His Honour continued:

9. ... In essence he had no title in law in satisfaction of section of the requirements of section 130 of the Land Act, The decision taken by the first defendant was within law and did not breach 130 of the Land Act rather he acted in satisfaction because the plaintiff had not complied. There was no evidence that he had complied in satisfaction. The title in paper was not made out in law. He had not derived by due process nor transition from the initial holders in law both Aba Kulame McKergow and Anna McKergow as joint tenants and then after death of the former to the latter and then to him and therefore in compliance of the law. His evidence does not satisfy the required balance on the probabilities. He had no title in law attained by satisfaction and in compliance of section 130 of the Land Act to the subject portion 585 State Lease volume 12 Folio 146 and the actions of the first defendant to issue a Stop Work did not breach law nor principles of natural Justice, because the plaintiff was not seen in law nor could he assert in law. It would be an error in law to uphold the contention that he makes in view accordingly his application for Judicial review is refused and dismissed.

20. In finding that no comprehensive and persuasive cause for judicial review has been established, his Honour held that the application should be dismissed.

SUPREME COURT PROCEEDINGS

21. In its appeal filed 20^th March 2020 the appellant relied on the following grounds:

(1) The National Court erred in mixed law and fact in finding there was a “clear compliance” (or any sufficient compliance) with section 130 of the Land Act 1996 in respect of the purported subdivision of land known as Portion 585 Milinch Erap Fourmil Markham in Morobe Province contained in State Lease Volume 12 folio 146 (“Portion 585”) into two new Portions 671 and 669, for one or more of the following reasons:

(a) There was no or alternatively insufficient evidence of an application by the lessee to the Minister for approval to subdivide the land in the State Lease over Portion 585 under section 130(1) of the Land Act 1996;
(b) there was no or alternatively insufficient evidence of such an application by the said lessee in writing as such required under section 130(2)(a) of the Land Act 1996;
(c) there was no or alternatively insufficient evidence of such an application (whether in writing or at all) accompanied by a plan showing the manner in which it was proposed to subdivided the said land as required under section 130(1)(b) of the Land Act 1996; and/or
(d) the land being within a physical planning area, there was no or alternatively insufficient evidence of such an application (whether in writing or at all) accompanied by planning permission for the subdivision under the Physical Planning Act 1989 as required under section 130(2)(c) of the Land Act 1996.
(2) The National Court erred in law or mixed fact and law in that it should have found the decision dated the 29^th April 2008 of the First Respondent (and or/his predecessor) or his delegate or agent to register a Survey Plan of Portions 669-671 as Survey Plan Cat No. 31/1368 (in so far as it relates to Portion 585) which subdivided Portion 585 into two new Portions 671 and 669 (“the First Decision”), should be quashed because the State Lease (containing Portion 585) was never surrendered according to law.
(3) The National Court erred in law or mixed fact and law in finding that the First Decision did not relate to the Appellant, for one or more of the following reasons:
(a) the Appellant as bona fide purchaser for value had taken a transfer and become the registered leasehold-proprietor of the State Lease containing Portion 585 which made no reference to the purported subdivision;
(b) the Appellant had or claimed a direct pecuniary and proprietary interest in Portion 585 being the land the subject-matter of the purported subdivision;
(c) the First Decision did relate to the Appellant because although it was "not part of it" (in that it did not participate in the decision) the First Decision did adversely affect the Appellant;
(d) the Appellant had a sufficient interest to bring and maintain the proceedings for judicial review of the First Decision.
(4) The National Court erred in mixed fact and law in so far as it found, whether expressly or implicitly, that the Appellant was guilty of delay in challenging the First Decision - the National Court saying "He has been at liberty all along for 8 years and had not seen right to raise (sic)" - when the undisputed evidence was the Appellant only became aware of the First Decision following receipt of a Stop Work Notice on or about 22^nd February 2019 and investigations and advice from its lawyers on or about 9^th March 2019.
(5) The National Court erred in law or mixed fact and law in that it:
(a) failed to recognise and give effect to the principle of survivorship relating to joint tenancies, and in particular, that upon the death of one of two joint tenants his or her interest automatically vests in the surviving joint tenant;
(b) found that there was never any transition of title from Aba Kulame McKergow and Anna McKergow as joint tenants and after the death of the former to the latter and then to the Appellant;
(c) should have found that the entries on the owner's copy of the State Lease (in the absence of any evidence or assertion of fraud against the Appellant) established transmission of title from Aba Kulame McKergow and Anna McKergow as joint tenants (following the death of the former) to Anna McKergow, and from Anna McKergow to the Appellant.
(6) Further or alternatively, the National Court erred in law or mixed fact and law in that it:
(a) overlooked or failed to give effect to an Agreed Fact (No. 1) that:
"State Lease Volume 12 Folio 146 (the State Lease) in relation to the land known as Portion 585 Milinch Erap, Fourmil Markham, Morobe Province (Portion 585) containing an area of 7,650 hectares or thereabouts as delineated on Survey Plan Cat. No. 31/1303 was initially granted to Partridge Holdings Ltd on 23^rd July 2004. The State Lease was transferred to Aba Kulame McKergow and Anna McKergow as joint tenants on 28^th August 2008. A Notice of Death of Aba Kulame McKergow was registered on the title on 19^th March 2010 and on 29^th May 2012, Anna McKergow transferred the State Lease to the plaintiff [the Appellant] which was registered on the same date. The Transfer Instrument executed by Anna McKergow on 21^st May 2012 was registered by the Fourth Defendant [the Fourth Respondent] (or his predecessor) and/or his delegate on 29^th May 2012."
(b) denied the Appellant natural justice in that it failed to give the Appellant reasonable notice that it was intending or considering a finding that the Appellant had not acquired legal title to the land (contrary to the above Agreed Fact);
(c) erred in that it should have found the Appellant did have leasehold-title to Portion 585.
(7) The National Court erred in law or mixed fact and law in that it should have quashed the decision dated 5^th September 2014 of the First Respondent (and/or his predecessor) or his delegate or agent to register a Survey Plan of Portion 936 - 952 as Survey Plan Cat. No. 31/1581 (in so far as it relates to Portion 585) which renamed Portion 671 as Portion 936 (which is within Portion 585) and reduced its land area from 7.14 hectares to 6.99 hectare ("the Second Decision") for one or more of the following reasons:
(a) the Second Decision was made in breach of section 130(1) the Land Act 1996 in that the Appellant (the lessee) did not apply to the Third Respondent (or his predecessor) for subdivision;
(b) the Appellant did not apply in writing as required under section 130(2)(a) of the Land Act 1996;
(c) the Appellant did not make an application (whether in writing or at all) accompanied by a plan showing the manner in which it was proposed to the subdivide the said land as required under section 130(2)(b) of the Land Act 1996;
(d) the land being within a physical planning area, there was no application (whether in writing or at all) accompanied by planning permission for the subdivision under the Physical Planning Act 1989 as required under section 130(2)(c) of the Land Act 1996;
(e) the Second Decision was made in breach of section 130(3) of the Land Act 1996 in that there was no application by the Appellant under section 130(1) of the Act capable of being approved;
(f) the Second Decision was made in breach of section 130(4) of the Land Act 1996 in that the Third Respondent (or his predecessor) or his delegate did not notify the Appellant of the purported decision;
(g) the Second Decision was made in breach of section 130(5) of the Land Act 1996 in that the Appellant did not surrender the State Lease to the Second and Third Respondents (or their predecessors) or their delegates or agents for subdivision of Portion 585;
(h) the Second Decision was made in breach of the rules of natural justice and section 59 of the Constitution as the Appellant was not given an opportunity to be heard before registration of the Survey Plan of Portions 936 - 952 as Cat. No. 31/1581 and was never consulted before registration of that Survey Plan.
(8) The National Court erred in law or mixed fact and law in failing to quash the decision made on or about 22^nd February 2019 by the Fifth Respondent contained in the Fifth Respondent's Stop Work Notice dated 22^nd February 2019 by which it was claimed that the Appellant was using the Portion 585 without a title and required the Appellant to stop work forthwith on Portion 585 ("the Third Decision"), for one or more of the following reasons:
(a) the decision was ultra vires the Physical Planning Act, in particular section 5, in that use of the land without a title (which is denied) is not a physical planning matter or a matter for consideration or determination by the Fifth Respondent in respect of a proposed Stop Work Notice;
(b) alternatively, the Third Decision was based on a mistake of law or mixed fact and law in that the Appellant did have leasehold-title to the land pursuant to its State Lease;
(c) the Third Decision was made in breach of the rules of natural justice and in breach of section 59 of the Constitution as the Appellant was not given a reasonable or any opportunity to be heard before the Stop Work Notice was issued;
(d) the Third Decision was made arbitrarily and contrary to law.

22. The appellant sought relief in the following terms:

(1) The appeal is allowed.
(2) The orders of the National Court made 17^th February 2020 are quashed.
(3) In lieu thereof:
(a) Orders quashing the decisions the subject of judicial review in proceedings OS (JR) No 170 of 2019 (the First, Second and Third Decisions referred to above);
(b) A declaration that the Appellant is the registered leasehold proprietor of Portion 585;
(c) An injunction restraining the First Respondent and/or the Second and Third Respondents, their servants or agents and delegates from approving any request by any person or entity, except on the request of the Appellant, to subdivide Portion 585.
(d) An injunction restraining the First Respondent and/or the Second and Third Respondents, their servants or agents and delegates from subdividing Portion 585 except upon the consent and permission of the Appellant.
(e) An injunction restraining the Second, Third and Fourth Respondents, their servants or agents and delegates from transferring and/or granting and registering any portions of land within Portion 585 to any person or entity except upon the consent and permission of the Appellant.
(4) Alternatively, to subparagraph (3), an order remitting the said proceedings to be reheard by the National Court (differently constituted).
(5) The Respondent’s pay the Appellant’s costs in the National Court and of the appeal including reserved costs (if any).
(6) Such further or other orders as the Court considers appropriate.

SUBMISSIONS OF THE PARTIES

23. The appellant submitted, in summary:

• The appellant commenced the National Court proceedings under Order 16 of the National Court Rules to review the three decisions;
• Leave to apply for judicial review was granted by the National Court on 17^th May 2019 by Gavara-Nanu J;
• In relation to grounds of appeal 3 (1) and (2) and whether there was “clear compliance” (or any sufficient compliance) with s 130 of the Land Act in respect of the purported subdivision of Portion 585 into Portions 671 and 669:
  • (a) It is an agreed fact that neither Aba Kulame McKergow nor Anna McKergow surrendered the State Lease for Portion 585 to the second and third respondents or their delegates for subdivision.
  • (b) After the death of Aba Kulame McKergow, Anna McKergow transferred the State Lease to the appellant.
  • (c) The appellant made no application for subdivision of Portion 585.
  • (d) None of the respondents provided any evidence of compliance with s 130 of the Land Act in relation to the subdivision of Portion 585.
• In relation to ground of appeal 3 (3) and whether the first decision related to the appellant:
  • (a) The State Lease was transferred to the appellant on 29^th May 2012. It was never surrendered for subdivision of Portion 585.
  • (b) Notwithstanding that the first decision was made on 29^th April 2008 and prior to the transfer of the State Lease to the appellant, the decision affected the appellant’s direct pecuniary and proprietary interest in Portion 585.
  • (c) The appellant as a bona fide purchaser for value had taken a transfer and become the registered leasehold-proprietor of the State Lease containing Portion 585, which made no reference to the purported subdivision.
• In relation to ground of appeal 3 (4) and whether the appellant was guilty of delay in challenging the first decision, it was common ground that the appellant only became aware of the first decision following receipt of a stop work notice on or about 22^nd February 2019, and the appellant commenced action in the National Court in March 2019, such that there was no delay.
• In relation to grounds of appeal 3 (5) and (6) and whether the appellant had a leasehold title to Portion 585:
  • (a) On the death of Aba Kulame McKergow, Anna McKergow as the surviving joint tenant to the State Lease for Portion 585 became the sole proprietor of as a result of s 122 of the Land Registration Act, and able to transfer that interest to the appellant.
  • (b) The primary Judge denied the appellant natural justice in that he failed to give the appellant reasonable notice that he was intending or considering a finding that the appellant had not acquired legal title to Portion 585
  • (c) The primary Judge should have found that the appellant had the leasehold title to Portion 585;
  • (d) A claim by Mr Jangiko in WS 25 of 2018 in relation to ownership of Portion 669 was dismissed by Justice Murray in the National Court on 20^th March 2020, on the basis that the undisputed evidence before the Court was that HBS had title to Portion 585.
• In relation to ground of appeal 3 (7) and whether the second decision was made in breach of s 130 of the Land Act:
  • (a) It was common ground that the appellant never surrendered the State Lease for subdivision in regard to the purported second decision dated 5^th September 2014, to register a Survey Plan of Portion 9360952 as Survey Plan Cat. No. 31/1581, which resulted in the reduction of Portion 585 from 7.14 hectares to 6.99 hectares.
  • (b) It was never disputed by the third respondent that the appellant never made an application under s 130 of the Land Act for subdivision of Portion 585.
  • (c) The second decision was made in breach of s 130 (3) of the Land Act 1996 because there was no application by the appellant under s 130 (1) of the Land Act capable of being approved.
• In relation to ground of appeal 3 (8) and whether the third decision was made ultra vires the Physical Planning Act or alternatively based on a mistake of law or mixed fact and law in that the appellant did have a leasehold title to the land pursuant to the State Lease:
  • (a) The third decision purportedly made on the basis that the appellant had no title to the land was not a “physical planning matter” or a matter for consideration or determination by the fifth respondent. It was ultra vires the Physical Planning Act, particularly s 5 of that Act.
  • (b) Alternatively, the third decision was based on a mistake of law or mixed fact and law in that the appellant had indefeasible title to Portion 585 pursuant to the State Lease.

24. The respondents submitted, in summary:

• In relation to ground of appeal 3 (1):
  • (a) There was no error committed by the primary Judge in finding that there was “clear compliance” with s 130 of the Land Act. Aba Kulame McKergow and Anna McKergow knew of the subdivision of Portion 585 by Mr Jangikop, and it was in that context that his Honour found that there had been “clear compliance” with the section.
  • (b) The appellant was not the title holder of Portion 585 at the material times.
  • (c) Under s 130 (1) of the Land Act the lessee may apply in writing to the Minister for approval to subdivide the land included in his lease, accompanied by a plan showing the manner in which it proposes to subdivide the land and where any part of the land is within a physical planning area. Whether the Land Act was complied with fully by Anna McKergow is of no consequence – what was vital was that the subdivision of Portion 585 was done with the full knowledge of the title holder Anna McKergow, and this fact was made known to the appellant.
  • (d) The primary Judge also took into account the overall conduct of the appellant in making a finding against it, including that the appellant had prior knowledge of the fact that the subject land had been purchased by Mr Jangiko and subdivided
• In relation to grounds of appeal 3 (2) and (3), in finding that the appellant was not a lessee at the material times in 2008, did not have a “sufficient interest”, and was not affected by the first decision:
  • (a) The primary Judge plainly took into account the fact that Mr Jangiko had purchased the State Lease from the McKergows, and that Mr Jangiko had told the appellant of this.
  • (b) It was within the discretion of the primary Judge to find that the appellant was not affected by the first decision
  • (c) Although “sufficient interest” is normally determined at the leave stage of judicial review, a party may rely on the issue of sufficient interest at the substantive stage, and the Court retains a broader and wider discretion which it can exercise at the later stage
• In relation to ground of appeal 3 (4) and the question of delay, there was evidence before the primary Judge that the subdivision of Portion 585 was brought to the attention of the appellant by Mr Jangiko in 2012. It was also clear from the content of the State Lease that the appellant was now the owner of Portion 936 which was subdivided from Portion 585.
• In relation to ground of appeal 3 (5) and the primary Judge’s findings concerning the principle of survivorship relating to joint tenants:
  • (a) The primary Judge was not satisfied with the manner in which Anna McKergow had acquired her mother’s interest in Portion 585 in circumstances where the appellant failed to explain or provide evidence of the manner in which the transition of title took place.
  • (b) Accordingly his Honour did not find that there was a proper basis of transfer of title to the surviving tenant,
  • (c) His Honour properly exercised judicial discretion, in finding that the owner’s copy of the title was inconsistent with the Lands’ copy.
• In relation to ground of appeal 3 (6), the primary Judge was entitled to make factual findings inconsistent with a fact agreed by the parties, and to find that the appellant had not met the required balance in having discretion exercised in its favour.
• In relation to ground of appeal 3 (7), the primary Judge was entitled to find that the facts did not support a transition of title to Anna McKergow from her mother on the death of Aba Kalume McKergow.
• In relation to ground of appeal 3 (8) and the third decision, there was nothing fundamentally wrong in the exercise of the primary Judge’s discretion in not allowing the appellant the opportunity to be heard on the third decision, because the appellant was afforded the right to be heard at trial. Further, the appellant was entitled to appeal to the Physical Planning Tribunal in respect of the third decision, but did not do so.

CONSIDERATION

25. This case appears to raise more questions than the material as presented to the Court can answer. For example: if Aba Kulame McKergow and Anna McKergow had purportedly entered into a contract of sale of their interest in the State Lease for Portion 585 with Mr Jangiko and were paid in respect of that sale, why was the interest in the State Lease not transferred to Mr Jangiko prior to relevant action being taken leading to the first and second decisions? On whose application were the first and second decisions made? Why was the lease in respect of Portion 585 not surrendered? And in particular – how can the earlier sale by Anna McKergow and her mother of their interests in the State Lease for Portion 585 to Mr Jangiko be reconciled with the sale by Anna McKergow of her interest in the State Lease for Portion 585 to the appellant?

26. A further complicating factor of considerable importance in the present context is the decision of Justice Murray in the National Court in WS No 25 of 2018 Keppa Jangiko v HBS Constructions Ltd and No. 1 Surveyors Ltd. This decision of her Honour was given on 26^th March 2020, barely a month after the decision the subject of this appeal. Pursuant to a writ of summons Mr Jangiko sought, inter alia, an order nullifying the transfer of Portion 585 to HBS, consequential orders that HBS deliver up Portion 585, and declarations that the conduct of No. 1 Surveyors Ltd was fraudulent. HBS in turn sought an order that Mr Jangiko’s application be dismissed pursuant to Order 12 Rule 40 of the National Court Rules, as being vexatious and frivolous and failing to disclose a reasonable cause of action. At [21] of her Honour’s decision, Murray J found:

In this case, from the undisputed evidence before me, I take judicial notice that HBS Machinery Ltd has Title to Portion 585...

27. Her Honour then dismissed Mr Jangiko’s application as failing to disclose a reasonable cause of action.

28. At [8] of the primary judgment in this appeal, his Honour stated that the evidence asserted relied on by HBS to establish its title was “not clear”. This finding appears at odds with the findings of Murray J in the matter before her Honour. Insofar as we are aware, the decision of Murray J has not been appealed. Materially, no appeal by Mr Jangiko from the orders of Murray J in respect of WS No 25 of 2018 was listed for hearing with this appeal. It follows that, again insofar as we are aware, the decision of Murray J stands. To the extent that there was a priority dispute between Mr Jangiko and HBS concerning the State Lease of Portion 585, that dispute was resolved by Murray J in favour of HBS.

29. Turning now to the current proceedings, it is the duty of this Court to consider the appeal from his Honour’s decision, by reference to the primary decision, the grounds of appeal, and the submissions of the parties. It is to this task that we now turn.

30. In doing so, we note that a key reason of the primary Judge for dismissing the judicial review application before the National Court was the view taken by his Honour of the absence of standing on the part of HBS to challenge the first decision. Although this was the third ground of appeal, we consider it almost a threshold issue in this appeal. Ultimately, if his Honour was correct and HBS lacked standing to challenge the first decision, a major plank of its appeal falls away. In our view it is convenient to consider ground of appeal 3 (3) first.

Ground of appeal 3 (3)

31. As we have already explained, his Honour found at [2] that judicial review did not lie for HBS in relation to the first decision because:

• The first decision was made on 29^th April 2008 at a time when Aba Kulame McKergow and Anna McKergow were the owners of Portion 285, and
• HBS was not privy to the first decision.

32. That HBS was not a party to the first decision does not mean, however, that it lacked standing to seek judicial review of the decision. In this context we note the following observations of Frost SPJ in First Assistant Secretary, Department of the Administrator v Administration of the Territory of Papua and New Guinea and Leahy (Re Portion 56, Morobe) [1972] PGLawRp 1; [1971] PNGLR 442 where his Honour said:

Counsel for the appellant cited the case of Sevenoaks Urban District Council v. Twynam, in which Lord Hewart C.J. had occasion to consider the meaning of the words “person aggrieved” under the Public Health Act, 1925 of England, for his Lordship’s view that, “there is often little utility in seeking to interpret particular expressions in one statute by reference to the decisions given upon similar expressions in different statutes which have been enacted alio intuitu”. Despite this useful reminder, counsel then went on to refer to Day v. Hunter, a judgment of the Full Court of the Supreme Court of Victoria upon the meaning of the words “any person who feels aggrieved” in relation to proceedings by way of order to review under the Justices Act 1958 of Victoria. Under s. 155(4) of that statute the expression “any person who feels aggrieved” is defined to include as well as a defendant, any informant to an information charging an indictable offence or one punishable upon summary conviction who is dissatisfied in respect of any order or determination, etc. In the course of considering whether an applicant for an order to review had sufficiently shown himself to be a “person who feels aggrieved”, the judgment of the Full Court shows that it fully recognized that someone who was not a party to the proceedings in the court of petty sessions might be included in that expression, and thus entitled to proceed by way of order to review. The Full Court then referred to the case of a person not a party to the proceedings seeking to review a decision, and said: “Whether he can bring himself within these words depends on the facts of the case, and whether he is able to show that he is really and directly interested in the proceedings: see Dentry v. Stott where Fullagar J. (at that time a judge of the Supreme Court of Victoria) applying this test held a person, who was not a party to proceedings in the Court of Petty Sessions, to be a person who ‘felt aggrieved’ by the order complained of”: op. cit. at pp. 848-849. Accordingly I propose to refer to Dentry v. Stott. That case was concerned with an application pursuant to the National Security (War Service Moratorium) Regulations to a court of petty sessions for a warrant authorizing and requiring the delivery to the applicant, Hugh Dentry, of possession of a dwelling house on the ground that he was a protected person within the meaning of the regulations, and the dwelling house was about to become unoccupied. The owner of the dwelling house, Mary Stott, who was made respondent to such application, was served with notice of the application but as the dwelling house had already been let to one Phillip Murray she did not contest the application, and the Court made the order asked for. Subsequently Murray learnt of the making of this order and as the time had expired in relation to the first order, at his instance Mary Stott applied to a court of petty sessions, pursuant to s. 66 of the Justices Act for an order setting aside the order in favour of Dentry, and for a rehearing of the application. The Court refused both applications and Murray then obtained an order nisi to review the later decision. Fullagar J. held that Murray was a person aggrieved by that decision under s. 150 of the Justices Act 1928, and stated that, in his opinion, he was also a person aggrieved by the first order. Fullagar J. propounded the test set out above and then went on to hold that a person in the position of Murray, the person in occupation of the dwelling and claiming to continue to remain in occupation, was a person really and directly interested. In my opinion, the words of the Victorian legislation containing the definition of a “person who feels aggrieved” is not sufficiently different to prevent the meaning given by Fullagar J. to that expression being applied to the words “person aggrieved” in the Land Titles Commission Ordinance. Further, the facts of the present case are analogous to the facts of Dentry v. Stott (supra) and, in my opinion, the villagers in this case fall within the expression “a person aggrieved” as being persons who are really and directly interested in the proceedings, as the effect of the final order was to deprive them of the rights they claimed to ownership and possession.
Counsel for the appellant also relied upon the decision of my brother Kelly J. in Director of District Administration v. The Administration of the Territory of Papua and New Guinea and The Lutheran Mission Madang. In that case his Honour, referring to the expression “person aggrieved”, said: “In the scheme of the New Guinea Land Titles Restoration Ordinance and of the Land Titles Commission Ordinance I do not consider that these words should be so narrowly construed as to include only a person who has, in a sense, been a party before the Commission. Rather it seems to be that any person who has a claim to have a right which he alleges has been infringed by an order of the Commission is a ‘person aggrieved’. Whilst normally it might be expected that such a right would already have been the subject of a reference under s. 35 of the Restoration Ordinance, there could be a situation where this had not happened, for example, because of a failure to comply with some procedural requirement whereby the making of such a reference had been precluded. A person who is thus, as it were, shut out from having a reference made on his behalf would I consider be a ‘person aggrieved’.”
(citations omitted, emphasis added)

33. These observations were subsequently adopted and applied in Olei v Provincial Land Court at Port Moresby [1984] PNGLR 295, in Riri v Nusai [1995] N1375, and more recently in Imbuni v Samson [2019] N8141.

34. Further, in Mondiai v Wawoi Guavi Timber Co Ltd [2007] SC886 the Supreme Court (Kapi CJ, Davani and Lay JJ) observed at [69] that, in ascertaining whether an applicant had a “sufficient interest” in a matter to seek judicial review, it was relevant to query whether the party bringing the complaint was genuinely concerned or a “mere busybody”.

35. In circumstances where the effect of the first decision was that HBS was deprived of rights it claimed to Portion 585, notwithstanding its purchase of the State Lease and the registration of its title in relation thereto, we consider that HBS had standing to seek judicial review of the first decision. In our view it is not relevant that HBS was not privy to the first decision.

36. Ground of appeal 3 (3) is substantiated.

Ground of appeal 3 (1)

37. Ground of appeal 3 (1) concerned the issue of compliance with s 130 of the Land Act, which provides:

130. APPROVAL OF SUBDIVISION.
(1) A lessee may apply to the Minister for approval to subdivide the land included in his lease.
(2) An application under Subsection (1) shall–

(a) be written; and
(b) be accompanied by a plan showing the manner in which it is proposed to subdivide the land; and
(c) where any part of the land is within a physical planning area, be accompanied by planning permission for the subdivision under the Physical Planning Act 1989.

(3) The Minister may–

(a) approve an application under Subsection (1); and
(b) refuse the application but, where the application is accompanied by planning permission for the subdivision under the Physical Planning Act 1989, shall not refuse the application for any physical planning reason.

(4) The Minister shall notify the lessee of his decision in writing and, if he has approved the application, he shall specify in the notification–

(a) any reservations, covenants, conditions and provisions that he thinks are necessary to be included in each lease of the land if it is subdivided; and
(b) the fees and deposits to be paid by the lessee in respect of the grant of new leases for the subdivided portions of the land.

(5) If the lessee–

(a) has paid all rent due under the lease; and
(b) accepts the reservations, covenants, conditions and provisions specified in the notification; and
(c) has paid the fees and deposits in respect of the grant of the new leases,
he may surrender his lease, and in that case he shall be granted a new lease over each of the subdivided portions of the land.

(6) A surrender of a lease under Subsection (5)–

(a) shall be made within 30 days or within such further time as the Minister allows, after the date of the notification of the approval of the subdivision; and
(b) has effect from the date of commencement of the new leases.

(7) A new lease granted under this Section shall–

(a) be of the same kind as the surrendered lease, unless the Minister in any particular case directs otherwise; and
(b) preserve the lessee’s rights (if any) in respect of improvements on any land included in the new lease; and
(c) be for a period that will expire on the same date as the surrendered lease would have expired, unless the Minister, on the recommendation of the Land Board, fixes a later date; and
(d) contain, in addition to the matters provided for elsewhere in this Act, the reservations, covenants, conditions and provisions specified in the notification given under Subsection (4).

38. The appellant claimed that there was no or insufficient evidence of compliance with s 130 of the Land Act in respect of the purported subdivision of Portion 585 into Portions 671 and 669.

39. The primary Judge found there was “clear compliance” with s 130 of the Land Act by Aba Kulame McKergow and Anna McKergow in respect of the application for approval to subdivide the land in the State Lease over Portion 585 into two new Portions 671 and 669.

40. However, his Honour made no reference to evidence of an application by Aba Kulame McKergow and Anna McKergow, or to evidence that such an application was accompanied by a plan as required by s 130 (1)(b) of the Land Act, or to evidence that the application was accompanied by planning permission for the subdivision as required by s 130 (1)(c) of the Land Act.

41. At best, the primary Judge could only have inferred that there was compliance with s 130 of the Land Act, based on the fact that the first decision was made. That this was the basis of the finding was apparent from the following observations of his Honour:

5. Section 130 denotes that the plaintiff in this case must have a lease at the outset for him to apply to the Minister for subdivision of the lease that he holds. It is written application accompanied by a plan showing the manner in which the subdivision is proposed. And if the land is within a physical planning area accompanied by planning permission under the Physical Planning Act 1989. If the minister approves the application he notifies accordingly as set out under the Act including payment of any fees if any and here the lessee surrenders within 30 days his lease so that a new lease is issued with the subdivided portions set out. The new lease expires on the date as the surrendered lease. It is official government records in the normal course of events by law and would be in the custody of the defendants and would prevent the defendants from acting as they did.

42. Taking that line of reasoning to its conclusion, it appears that his Honour found that if the first decision was made, it could only have been made because an application complying with s 130 of the Land Act had been made by Aba Kulame McKergow and Anna McKergow.

43. There are fundamental problems with a conclusion to this effect.

44. First, it is not a proper answer to an application for judicial review, that the decision the subject of the application must have been made in accordance with the law (in this case, because the application “clearly complied” with s 130 of the Land Act). If that were the case, no application for judicial review could ever be successful.

45. Second, if the application clearly complied with s 130 of the Land Act, it is more than curious that the application was not produced in evidence to demonstrate compliance with s 130. No reasons appear to have been advanced for the absence of this evidence before the primary Judge. There is also no suggestion that the primary Judge queried its absence.

46. Third, and assuming that an application was made by Aba Kulame McKergow and Anna McKergow leading to the first decision, a critical question arose as to why those lessees did not surrender the State Lease for Portion 585 to the second and third respondents or their delegates in accordance with s 130 (5) of the Land Act, in order for new leases to be granted over the new Portions replacing Portion 585. The only findings of the primary Judge concerning surrender of the lease concerned an approach by Mr Jangiko to officers of the appellant to surrender the lease, which the appellant (perhaps unsurprisingly) refused. That there was no surrender by Aba Kulame McKergow and Anna McKergow does not appear to be in dispute – however a reasonable inference which could be drawn is that if a compliant application had been made pursuant to s 130, the lease relating to Portion 585 would have been surrendered by those lessees.

47. Fourth, we do not accept the submission of the respondents that there was sufficient compliance with s 130 of the Land Act if the subdivision of Portion 585 into new Portions 669 and 671 was undertaken with the “full knowledge” of Anna McKergow and made known to the appellant. Absolutely no basis for this submission can be found in the terms of s 130 – rather that section prescribes a procedure for a subdivision application. Issues of knowledge, including of third parties such as the appellant, are not relevant to the question of compliance with the section.

48. In our view it cannot be said that there was clear compliance with s 130 of the Land Act.

49. Ground of appeal 3 (1) is substantiated

Ground of appeal 3 (2)

50. Ground of appeal 3 (2) concerns the question whether the first decision should have been quashed because the State Lease containing Portion 585 was never surrendered according to law.

51. Section 130 (5) contemplates that a new lease shall only be granted by the Minister if the lessee:

• has paid all rent due under the lease;
• accepted the reservations, covenants, conditions and provisions specified in the notification; and
• paid the fees and deposits in respect of the grant of the new leases,

52. In such circumstances the lessee may surrender his lease, and only then shall the lessee be granted a new lease over each of the subdivided portions of the land.

53. In Bewani Oil Palm Plantations Ltd v Allen [2017] N6833 Nablu J held that the Minister acted ultra vires his powers when he granted a new lease on the basis of a purported subdivision before the Minister had received the surrendered lease. We respectfully consider that this approach by her Honour was correct.

54. In circumstances where the respondents formally admitted that the lessee(s) of the State Lease containing Portion 585 never surrendered the lease, leases over Portions 671 and 669 should never have been granted.

55. Ground of appeal 3 (2) is substantiated.

Ground of appeal 3 (4)

56. Ground of appeal 3 (4) concerns whether the appellant was guilty of delay in challenging the first decision, such as to influence the primary Judge in the exercise of his Honour’s discretion to grant judicial review.

57. The appellant submitted that the undisputed evidence before the Court was that it only became aware of the first decision following receipt of a Stop Work notice on or about 22^nd February 2019 and following investigations by its lawyers.

58. The respondents relied on the finding of the primary Judge that, following the death of Aba Kulame McKergow in 2010 and the actions of Anna McKergow to sell Portion 585, in or about 2012 Mr Jangiko:

3. ... delivered a manila folder with documents on the subdivision work carried out on Portion 585 and discussed with both the Managing director and the General Manager of the plaintiff telling them of the subdivision of portion 585 into portions 669 and 671 and asked both to surrender the title to be arranged with the Lands Department. And which both did not do so.

59. Relevantly the primary Judge observed:

3. ... He has been at liberty all along for 8 years and has not seen right to raise.

60. Assuming however that, as found by his Honour, Mr Jangiko did approach officers of the appellant in or about 2012 and inform them of his interest in the property, the nature of the evidence before his Honour as to that event is not clear (including, for example, the nature of documents allegedly contained in the relevant manila folder).

61. It is also unclear whether the effect of that conversation was that the officers of the appellant were provided with cogent evidence of that decision such that the appellant was put on notice of the existence of the first decision.

62. In the circumstances, the basis of his Honour’s finding that the appellant had had eight years to seek review of the first decision is unclear.

63. Ground of appeal 3 (4) is substantiated.

Grounds of appeal 3 (5) and 3 (6)

64. The respondents formally admitted that:

• the State Lease including Portion 585 was transferred to Aba Kulame McKergow and Anna McKergow as joint tenants on 28^th August 2008;
• a Notice of Death of Aba Kulame McKergow was registered on the title on 10^th March 2010; and
• on 29^th May 2012 Anna Mc Kergow transferred the State Lease including Portion 585 to the appellant, which registered on the same date.

65. Materially, his Honour found:

7. Attached to this affidavit is annexure "A" letter addressed to Hon. Justin W. Tkatchenko under hand of John Onguglo Lease officer Momase. The letter alleges fraud and improper dealings in the subject land. That the original leaseholder was illiterate, and the surviving joint tenant took advantage and collaborate with lands officer and facilitate. This allegation is consistent with the affidavit of the seventh defendant Keppa Jangiko sworn 5^th June 2019 that portion 585 was jointly tenanted by Aba Kulame McKergow and Anna McKergow, but after the death of the mother Aba Kulame McKergow the latter took responsibility over the subject tenancy. This is a joint tenancy that was supposedly severed by the death of the other partner in tenancy. The process of law taken to accommodate this fact is not clear so that there is proper basis in law for the transition of the title. This is an important fact as it would show the transition of the title from the initial holder to the new incumbent the plaintiff...

66. As Davani J observed in Amben v Maru [2015] SC1422:

25... Under the common law rules of survivorship, the death of a joint tenant leads to his interest being transferred automatically to the surviving tenant (Mugau Miamai v. Nungot Banick (2013) N4955).

67. In circumstances of the formal admission of the respondents of the joint tenancy of Aba Kulame McKergow and Anna McKergow in relation to Portion 585, his Honour was incorrect in finding that the death of Aba Kulame McKergow severed the joint tenancy. Rather, as a matter of law, Anna McKergow became the sole proprietor of the interest in Portion 585.

68. Contrary to his Honour’s observation, the process of law resulting in Anna McKergow becoming the sole proprietor of Portion 585 is clear.

69. Grounds of appeal 3 (5) and 3 (6) are substantiated.

Ground of appeal 3 (7)

70. Ground of appeal 3 (7) relates to the second decision dated 5^th September 2014 to register a Survey Plan of Portions 936-952 as Survey Plan Cat. No. 31/1581, renaming Portion 671 as Portion 936 (which was within Portion 585) and reducing its land area from 7.14 hectares to 6.99 hectares.

71. In circumstances where it is not in dispute that neither the appellant nor the previous lessees of Portion 585 surrendered the lease for Portion 585, the second decision was fatally flawed.

72. Ground of appeal 3 (7) is substantiated.

Ground of appeal 3 (8)

73. In respect of ground of appeal 3 (8), the appellant claimed that the third decision was ultra vires the Physical Planning Act. It is unnecessary for us to determine this question – in circumstances where the appellant held the leasehold title to Portion 585 pursuant to its State Lease, the third decision was clearly based on a mistake of law or mixed fact and law.

74. Ground of appeal 3 (8) is substantiated.

CONCLUSION

75. The appeal is allowed. The orders of the National Court in these proceedings should be quashed, with costs following the event.

76. We note that the appellant also sought declaratory and injunctive relief by way of orders of this Court. This relief replicated that sought before the primary Judge, but which his Honour refused. In circumstances where the primary Judge erred in his decision, no reason of substance has been advanced for us to refuse to make the orders sought before his Honour and now before this Court.

ORDERS:

77. The Court declares that:

1. The Appellant is the registered leasehold/proprietor of land known as Portion 585 Milinch Erap Fourmil Markham in Morobe Province contained in State Lease Volume 12 folio 146 (“Portion 585”).
   

78. The Court orders that:

2. The appeal is allowed.

3. The orders of the National Court made 17^th February 2020 are quashed.

4. The decision of the First Respondent (and or/his predecessor) or his delegate or agent dated 29^th April 2008 to register a Survey Plan of Portions 669-671 as Survey Plan Cat. No. 31/1368 (in so far as it relates to Portion 585) which subdivided Portion 585 into two new Portions 671 and 669 (“the First Decision”) is quashed.

5. The decision of the First Respondent (and/or his predecessor) or his delegate or agent dated 5^th September 2014 to register a Survey Plan of Portion 936 - 952 as Survey Plan Cat. No. 31/1581 (in so far as it relates to Portion 585) which renamed Portion 671 as Portion 936 (which is within Portion 585) and reduced its land area from 7.14 hectares to 6.99 hectare ("the Second Decision") is quashed.

6. The decision made on or about 22^nd February 2019 by the Fifth Respondent contained in the Fifth Respondent's Stop Work Notice dated 22^nd February 2019 by which it was claimed that the Appellant was using the Portion 585 without a title and required the Appellant to stop work forthwith on Portion 585 ("the Third Decision") is quashed.

7. The First Respondent and/or the Second and Third Respondents, their servants or agents and delegates are restrained from approving any request by any person or entity, except on the request of the Appellant, to subdivide Portion 585.

8. The First Respondent and/or the Second and Third Respondents, their servants or agents and delegates are restrained from subdividing Portion 585 except upon the consent and permission of the Appellant.

9. The Second, Third and Fourth Respondents, their servants or agents and delegates are restrained from transferring and/or granting and registering any portions of land within Portion 585 to any person or entity except upon the consent and permission of the Appellant.

10. The Respondents shall pay the costs of the Appellant in the National Court, and of and incidental to this appeal.

_______________________________________________________________
Ashurst PNG: Lawyers for the Appellant
Office of the Solicitor General: Lawyers for the First to Sixth Respondents
Office of the Public Solicitor: Lawyers for the Seventh Respondent