Kove v Po'o [2022] PGSC 37; SC2231 (29 April 2022)

SC2231

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 208 OF 2019

BETWEEN:
RACHEL KAREN KOVE
Appellant

V

TAU PO’O
First Respondent

AND:
DAVID GUINN as Trustee of the Property of TAU PO’O
Second Respondent

Waigani: Kandakasi, DCJ, Anis J, Berrigan, J
2021: 23^rd August
2022: 29^th April

APPEAL – appeal against decision dismissing proceeding on jurisdictional grounds – statutory time bar - ss 16 (3) or (5) and 18 - Frauds and Limitations Act 1988 (FLA) – whether the primary reliefs sought were all equitable reliefs and were protected by s 18 of the of FLA? - whether cause of action was ‘an action upon a judgment’ or whether it was ‘an action to enforce a judgment,’ - whether the proceeding was captured under s 16(5) of the FLA – for being commenced more than 12 years.

STATUTORY INTERPRETATION – interpretation of s 16(5) of FLA action upon a judgment compared to enforcement of –use of the word ‘enforceable’ under s. 16(5) for purposes of computing time to determine whether an action was time barred

Facts:

The appellant filed an originating summons in the National Court seeking declaratory and consequential orders based on an earlier matrimonial agreement headed “Financial Settlement Agreement (Settlement Agreement) she had with the first respondent. Their marriage was dissolved by the National Court (divorce proceeding) on 5^th December 2002. The couple’s Settlement Agreement was also sanctioned by the Court on that day under the divorce proceeding. In the agreement, it was agreed, amongst others, the couple’s then matrimonial home would be transferred within 30 days of signing of the agreement, to the appellant. That did not occur. In 2008, the matrimonial home was transferred to the name of the first respondent. On 11 May 2015, the first respondent was adjudged insolvent, and the second defendant was appointed as his trustee. On 4 November 2019, the appellant issued OS 462 of 2016 – Rachel Karen Kove v. Tau Po’o and David Guinn as Trustee of the Property of Tau Po’o (OS 462 of 2016) seeking effectively to enforce the Settlement Agreement sanctioned in the divorce proceeding.

The trial Court found the claim was not seeking equitable reliefs only but was effectively an action for the enforcement of a judgment of the Court. Hence, it was caught by s.16(5) and not protected by s.18 of the Frauds and Limitations Act 1988 (FLA). The trial Court thus found the matter was statutorily time barred because it was commenced more than 12 years after the entry of judgment. In the alternative, the trial Court found the action was an action in specialty which was also statutorily time barred under s. 16 (3) of the FLA.

Held:

1. The main motive and purpose of the appellant in issuing her proceeding under OS 426 of 2016 was to enforce the judgment and orders made by the National Court under the divorce proceeding and not an action for purely equitable reliefs.
   
2. For the purposes of s. 16 (5) and s. 18 of the FLA, the appellant’s action under OS 426 of 2016 was an action upon judgment given the main motive and purpose was to enforce the judgment and orders of the National Court made in the divorce proceeding, by reason of which the proceeding was statutorily time bared:

Applied: Atlas Corporation Ltd v. Ngangan (2020) SC1995

3. Section 155 (4) of the Constitution applies in cases where a party as a right or interest which is being or has the likelihood of breach and there is no remedy available at law to prevent or redress any actual or likely breach.

Approved: William Powi (Acting Administrator for Southern Highlands Province) v. Southern Highlands Provincial Government (2006) SC844

4. In the present case, the appellant had the legal right and process under the National Court Rules to enforce the judgment and orders made under the divorce proceeding either upon expiry of time period within which the judgment and orders were to be given effect to or any period prior to the expiry of the 12 years limitation under s. 16 (5) of the FLA.
   
5. In view of the finding that the action was for the purpose of enforcing the judgment and orders under the divorce proceeding, the alternative issue of specialty did not arise.
   
6. Accordingly, the appeal was dismissed and the decision of the National Court affirmed in part with costs against the appellant.
   

Cases Cited:

Anson Ising v. Lucy Ande (2014) SC1359
John Hiwi v. Rendle Rimua (2015) SC1460
Mamun Investment Limited v. Nixon Koi (2015) SC1409
Nodepa Plantation Ltd v Balat (2020) SC1927
NCDIC v Bogibada Holdings Pty Ltd [1987] PNGLR 135
Douglas Dent v Thomas Kavali & Ors [1981] PNGLR 488
Michael Kewa v Elias Mai Kombo (2016) SC1542
Philip Takori v. Simon Yagari & Ors (2008) SC905
Louis Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1144
Augwi Ltd v. Xun Xin Xin (2014) SC1616
Hiwi v. Rimua (2015) SC1460.
Koang No 47 Ltd v. Monodo Merchants Ltd (2001) SC675
Jackson Laka v. Pius Nui (2013) SC1223
Tau Gumu v. PNGBC (2001) N2288
Anave Ona v. National Housing Corporation and Nambawan Supa Limited (2009) SC995
William Powi (Acting Administrator for Southern Highlands Province) v. Southern Highlands Provincial Government (2006) SC844
Eremas Wartoto v. The State (2015) SC1411
Boochani v. Independent State of Papua New Guinea (2017) SC1566
Atlas Corporation Ltd v. Ngangan (2020) SC1995
Joel Aundambui v. Post PNG Ltd (2014) N5772
Francis Kunai v. PNG Forest Authority (2018) N7570

Counsel:

B.S. Lai, for the Appellant
S. Gor, for the First and Second Respondents

29^th April, 2022

1. KANDAKASI DCJ: I have had the benefit of reading the draft judgment of my learned brother, Justice Anis. I agree that the appeal should be dismissed with slightly different orders and the reasons for arriving at that decision expressed differently.
   
2. The relevant background and the grounds of the appeal are set out in Justice Anis’ judgment. In short, the appellant appeals against a decision of the National Court made on 4^th November 2019, in proceeding OS 462 of 2016 – Rachel Karen Kove v. Tau Po’o and David Guinn as Trustee of the Property of Tau Po’o (OS 462 of 2016). After a full hearing, the trial Judge dismissed the claim in its entirety with costs. The trial judge reasoned that the proceeding did not seek reliefs in equity only but other declaratory reliefs as well. By reason of that, the provisions of s. 16 (5) of the Frauds and Limitations Act 1988 (FLA) applied as the proceeding was in fact an action seeking to enforce a judgment and therefore it was statutorily time barred for being commenced outside the prescribed 12 years. In the alternative, the learned trial Judge also reasoned that, if it was not the case, the settlement agreement was a specialty which was caught by s. 16 (3) and was also statutorily time barred.
   

THE PARTIES ARGUMENTS

3. The appellant submits the entire claim or reliefs pleaded in the originating summons were equitable in nature. The appellant submits that her claim qualified under s. 18 and not s. 16 of the FLA as determined by the trial Judge. The respondents support the findings and conclusions reached by the trial Judge which are reproduced in Anis J’s decision.
   

THE RELEVANT ISSUES

4. From the parties’ arguments and the various grounds of appeal I consider the main issues are:
   

(a) whether all the reliefs sought in the originating summons were equitable reliefs?

(b) whether OS 462 of 2016 may be regarded as an ‘action upon a judgment’ or an ‘enforcement proceeding,’ within the meaning of s. 16(5) of the FLA?

(c) if OS 462 of 2016 was ‘an action upon a judgment’, whether it was commenced within 12 years from the time when the judgment or order was ‘enforceable’ within the meaning of s 16(5) of the FLA?

(d) whether the appellant is precluded from enforcing the Settlement Agreement? and

(e) subject to answers to questions (a) to (d), whether the action may also be regarded as an ‘action upon a specialty’ under s. 16(3) of the FLA and its effects (if any)?

5. A careful consideration of the grounds of the appeal and the issues they present raise two main questions for consideration. The first is a question that combines issues (a) and (b), whilst the second question combines issues (c) and (d). Depending on how the two main questions are answered, the question presented under issue (e) will be the only other question to consider and answer. The questions are:
   
   • (1) Whether the proceeding under OS 462 of 2016 was an action for equitable reliefs or, was an ‘action upon a judgment’ or an ‘enforcement proceeding,’ within the meaning of s. 16(5) of the FLA?
     
   • (2) If the proceeding was an action to enforce a court judgment and or orders, was the appellant precluded from bringing the proceeding?
     
   • (3) Depending on the answer to questions (1) and (2), whether the action may also be regarded as an ‘action upon a specialty’ under s. 16(3) of the FLA and its effects (if any)?
     
6. It is convenient to deal with the first two questions together but in the order presented. Then depending on the answer to those two questions, I will, if need be, deal with the third question. Thus, combing the first and second questions produces the question for consideration as:
   

Whether the proceeding under OS 462 of 2016 was an action for equitable reliefs or was an ‘action upon a judgment’ or an ‘enforcement proceeding,’ within the meaning of s. 16(5) of the FLA and if yes, was the appellant precluded from bringing the proceeding?

7. I consider it important to address this question by reference to the kinds of relief sought in OS 426 of 2016. The reliefs sought were as follows:
   

“1. An order by way of a Declaration that the Financial Settlement Agreement dated 4^th December 2002, as entered into between the Plaintiff and the First Defendant in National Court proceedings MC No. 15 of 2002 – Rachel Karen Kove (formerly Po’o) v. Tau Po’o is lawful, binding and enforceable by the Plaintiff against the First and Second Defendant.

2. An Order by way of a Declaration that as a consequence of the Financial Settlement Agreement dated 4^th December 2002, the property described under State Lease Volume 33, Folio 8083, Section 239, Allotment 25, Hohola, National Capital District is no longer the property of the First Defendant as he has under agreement absolutely assigned and or agreed to transfer the ownership of the said property and all his rights to the property to the Plaintiff.
3. An order by way of a Declaration that the National Court Order dated 11^th May, 2015 in National Court proceedings MP No. 27 of 2014 (Comm) – Yagudi Limited (in liquidation) -v- Tau Po’o ordering that the First Defendant is adjudged to be insolvent has no effect on the Plaintiff’s right to enforce the Financial Settlement Agreement dated 4^th December, 2002.
4. An Order by way of a Declaration that pursuant to the express clauses of the Financial Settlement Agreement dated 4^th December 2002, in particular Clause 3.1 of the said Agreement, the First Defendant has absolutely assigned and/or transferred all his rights and claims of ownership over the property as contained in the State Lease described as State Lease Volume 33, Folio 8083, Section 239, Allotment 25, Hohola, National Capital District to the Plaintiff.
5. An Order by way of a Declaration that the First Defendant at the time of signing of the Financial Settlement Agreement dated 4^th December, 2002 completely and absolutely assigned all his rights including proprietary rights over the property described as State Lease described as State Lease Volume 33, Folio 8083, Section 239, Allotment 25, Hohola, National Capital District to the Plaintiff.
6. An Order that the Second Defendant’s rights and powers as Trustee of the First Defendant’s property as conferred to him by virtue of the Certificate of Appointment of Trustee dated 30^th March, 2016 cannot extend to the property the subject of the Financial Settlement Agreement date 4^th December, 2002 and the property the subject of these proceedings, as the property has been completely and absolutely assigned and or transferred by the First Defendant to the Plaintiff under the said Agreement dated 4^th December, 2002.
7. An Order that the Second Defendant has no legal basis to exercise his rights and powers conferred on him under the Certificate of Appointment dated 30^th March, 2016, over the property described as State Lease Volume 33, Folio 8083, Section 239 Allotment 25, Hohola, National Capital District on the basis that the said property is no longer the First Defendant’s property.
8. An Order that the insolvency of the First Defendant does not affect the right of the Plaintiff to seek specific performance of the Financial Settlement Agreement dated 4^th December, 2002, as against the First and Second Defendant.
9. An Order that the Second Defendant as Trustee of the property of the First Defendant shall forthwith and within fourteen (14) days cause to be transferred the Title to the property described as State Lease Volume 33, Folio 8083, Section 239, Allotment 25, Hohola, National Capital District to the name of the First Plaintiff.
10. An Order by way of permanent injunction restraining the First Defendant and his employees, staff servants, agents and whomsoever holding themselves out to be acting for an on behalf or under express or implied instructions from the First Defendant from taking any active or passive steps to transfer the property as described as Sate Lease Volume 33, Folio 8083, Section 239, Allotment 25, Hohola, National Capital District to any other person(s) other that the plaintiff.
11. An Order by way of a permanent injunction restraining the Second Defendant and his employees, staff, servants, agents and whomsoever holding themselves out to be acting for and on behalf or under express or implied instructions from the Second Defendant from taking any active or passive steps to transfer the property as described as State Lease Volume 33, Folio 8083, Section 239, Allotment 25, Hohola, National Capital District to any other person(s) other than the Plaintiff.
12. An Order by way of a mandatory injunction be ordered to command and compel the First and Second Defendant to take the appropriate steps to have the property described as State Lease Volume 33, Folio 8083, Section 239, Allotment 25, Hohola, National Capital District formerly transferred to the name of the Plaintiff and the said transfer to be concluded within thirty (30) days.
13. Any further orders that the Court deems just and appropriate in the circumstances.
14. Costs”
    
8. A close examination of the reliefs obviously shows that, the first relief sought was the primary and the most determinative one. A decision to grant that relief and that relief being granted would form the necessary foundation for a consideration of the other reliefs sought. In other words, reliefs 2 to 14 are dependent on a grant of the first relief. It is thus, necessary to consider whether, the first primary and determinative declaratory relief sought is an equitable relief or not. I note, the issue of whether a relief is equitable or not is not arising for the first time before us. Instead, the question has been the subject of several decisions by this Court. I will refer to only a few of them.
   

RELEVANT LAW

9. Firstly, in Anson Ising v. Lucy Ande (2014) SC1359, (per David, Makail & Kawi, JJ), the Court held a claim seeking:
   

“... a declaration to void the sale and transfer of the property and a mandatory injunction to have the appellant deliver up the contract of sale and transfer instrument for the purpose of facilitating the transfer of title ... are equitable relief: Massive v. Okuk and Kendarop [1985] PNGLR 263. For this reason, we are of the view that by virtue of s. 18 (supra), the time limitation of six years does not apply. By this finding, we also approve the decision by Davani, J in Simon Puraituk & Ors v. Alfred Hagen & Aero Archaeology Limited (2007) N3204 where her Honour held amongst others, that s. 16 (supra) does not apply to a claim seeking an order to declare an agreement to dispose of a war relic known as the “Swamp Ghost” null and void because s. 18 (supra) specifically excludes claims for equitable relief.”

10. Secondly, the decision in the case of John Hiwi v. Rendle Rimua (2015) SC1460 (per Cannings, Kariko and Bona JJ), the Court held, amongst others:
    

“(3) Actions only fall within Section 18 if the relief being sought is confined to specific performance, injunction, or other equitable relief. Here, though the appellant sought specific performance of the three agreements, he also sought payment of K74.5 million (presumably as a debt) and damages for breach of contract and general damages, so the action did not fall within Section 18. It was caught by Section 16(1)(a).

11. Thirdly, in Mamun Investment Limited v. Nixon Koi (2015) SC1409, (per Sakora, David and Hartshorn, JJ) held at s [8] to [9] as follows:
    

“8. As to declaratory relief and whether it can be categorized as equitable relief, we have considered the following cases) in Douglas Dent v. Thomas Kavali and Ors [1981] PNGLR 488, Bredmeyer J considered the power of the National Court to grant a declaratory judgment. He stated that he considered that the National Court’s jurisdiction or power to grant a declaratory order comes from in particular the latter words of s. 155 (4) Constitution. His Honour went on to state that:

‘Likewise, I consider that the power of the pre-Independence Supreme Court of Papua New Guinea to grant a declaratory order did not come from O.4 r.11 but rather from the statutory provisions conferring on that court powers of the Court of Chancery in England.’

His Honour then in detail considered that statutory history ‘which produced that result.’

b) in NCDIC v. Bogibada Holdings Pty Ltd and Anor [1987] PNGLR 135, Kapi DCJ (as he then was) stated that:

‘Declaratory relief is an equitable remedy and, therefore, the jurisdiction of the court is to be found in the principles of equity in England which have been adopted as part of the law in Papua New Guinea.’

This, however, was a case in which the proceedings were ‘.... instituted by way of judicial review....’

c) then in Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Ors (No 2) [1988-89] PNGLR 425, Kapi DCJ stated that he agreed with Bredmeyer J in Dent v. Kavali (supra) that the jurisdiction of the Court in granting declaratory orders is now to be found under s. 155 (4) Constitution.

d) in Tito v. Waddell (No.2) [1977] 1 Ch. 106 at p259, Megarry V.C. said:

‘In particular, I have it in mind that in ordinary actions for a declaration, as distinct from the Exchequer equity jurisdiction against the Crown, it is well settled that it is discretionary whether or not to make a declaration. That is not because the remedy is an equitable remedy, for as the Court of Appeal made plain in Chapman v. Michaelson [1908] UKLawRpCh 141; [1909] 1 Ch. 238 it is not: it is neither a legal nor an equitable remedy, but statutory.’

e) in the Federal Court of Australia decision of AWB Limited v. Honourable Terence Rhoderic Hudson Cole (No.2) [2006] FCA 913, Young J said:

‘45. It is a common misconception that a declaration is an equitable remedy. It is not; it is a statutory remedy that is conferred in terms emphasising that its grant or refusal is within the discretion of the Court: see Tito v. Waddell (No.2) [1977] 1 Ch. 106 at 259; Mayfair Trading Co Pty Ltd v Dreyer [1958] HCA 55; [1958] 101 CLR 428 at 454 per Dixon CJ; and Meagher, Gummow and Lehane, Equity Doctrines and Remedies^, 4th ed, Butterworths, 2002, at [19-159]. The discretion is to be exercised according to the facts and circumstances of the individual case, and the considerations that may be relevant to the exercise of the discretion are ‘so numerous that it is not possible to enumerate them:’ see Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192 at 203.”

f) then in H. Stanke & Sons Pty Ltd & Anor v. O’Meara [2007] SASC 246, in a judgment of the Full Court of the Supreme Court of South Australia, after embarking upon a detailed consideration of authority on whether by seeking declaratory relief, an applicant was seeking equitable relief; the Court said:

‘There are other cases.... where the plaintiff’s case is founded upon equitable principles and the declaration is simply the device which gives effect to those principles.’

and then:

‘Whilst it may be accepted that applications for mere declaratory relief cannot be regarded as seeking equitable relief, it is necessary to examine the pleadings in each case in order to determine the true nature of the relief sought.’

9 [wrongly numbered 8)]. In this instance the underlying basis for the declaratory relief claimed is not in equity. It is based upon a breach of a contract of sale and upon the tort of fraud. After giving consideration to the above authority (sic) in our view the relief claimed in the Originating Summons cannot be categorized as ‘other equitable relief’ in s. 18 Frauds and Limitations Act and so the respondents’ claims do not come within the wording of s. 18 Frauds and Limitations Act. Given this it is now necessary to consider the first ground of appeal.”

12. Fourthly, in Nodepa Plantation Ltd v. Balat (2020) SC1927, per the majority of David and Yagi JJ with Kassman J dissenting, noted at [26] that, there appears to be two positions on the question of whether a declaratory relief is an equitable relief. One view is as per the decision in NCDIC v. Bogibada Holdings Pty Ltd [1987] PNGLR 135, which was cited in Mamun v. Koi (supra). The other view is per the decision in Douglas Dent v. Thomas Kavali & Ors (1981) PNGLR 488 and others, including, Mamun v. Koi (supra). The first of the two view is that a declaratory relief is an equitable relief and as such, s 18 of the FLA would apply. The other view is that a declaratory relief is a statutory remedy which has its origins in the latter words of s 155(4) of the Constitution. It is therefore necessary to examine the pleadings in each case to determine the true nature of the relief sought. The majority in Nolepa v. Balat (supra) subscribed to the latter view.
    
13. Finally, in Michael Kewa v. Elias Mai Kombo (2016) SC1542 (per Gavara-Nanu, Hartshorn & Higgins JJ), this Court considered the limitations under s 16 and s 18 of the FLA. In that context, the Court had regard to decision in Mamun v. Koi and noted.:
    

“....Sakora & Hartshorn JJ noted that the claim was for a declaratory order. That they held, was based on a breach of a contract of sale and the tort of fraud. The limitation period thus began to run from the date of accrual of the cause of action, there being no provision in the Frauds & Limitations Act postponing the bar because of concealment of the cause of action from the claimant. Poole J agreed.

14. The Court then stated at [61]:
    

“It is thus important to identify not only when the cause of action arose but the nature of it. As to the first aspect, see Comrade Trustee Services Ltd v Dangle [2011] PNGSC 5; SC 1105 (rights to invalidity benefit accruing at time of assessment not cessation of service). There was a similar finding in Commonwealth of Australia v Cornwell [2006] ACTCA 7. A negligent misstatement as to eligibility to join a Commonwealth pension scheme vested a cause of action in the plaintiff only on his retirement though the wrongful advice was given in 1965. The plaintiff retired in 1994. An appeal by the Commonwealth to the High Court of Australia in that matter was unsuccessful ([2007] HCA [2007] HCA 16; 16; (2007) ALR 148; 81 ALJR 933).”

15. Then specifically on an issue before the Court namely, concealed fraud the Court said at [63] to [64]:
    

“The point of this is that the doctrine of concealed fraud, recognized by equity, is not dependent on the terms of the statute. What later Limitation Acts achieved by, egs.33 Limitation Act 1985 (ACT) (fraud & concealment), was to apply by express statutory provision the usual time limitation after discovery of the concealment. The original Statute of Limitations, replicated in the Frauds and Limitations Act 1988, had no such time bar.

...Indeed, the initial limitation statute of 1623 (21 Jac 1c 16 (UK)) did not in terms apply to an equitable claim. Although some equitable claims were included, generally equity relied on the discretion inherent in the doctrine of laches and acquiescence to bar dilatory suits. An article by Natalie Skead in (2009) UNDAU Law Rev 2 traces the history of this legislative encroachment. That encroachment is less in PNG than in Australia. An example of it is s.33 Limitation Act 1985 (ACT) (supra).

16. Absent any legislation to the contrary, the Court went on to hold at [66] to [68]:
    

“...no limitation period applies to a claim for relief, (by virtue of s.18, Frauds & Limitations Act) where the claim is by a beneficiary against a trustee founded on fraud, fraudulent breach of trust or to recover property retained or converted by a trustee to his or her own use (see Re Warren (deceased) [1918] ArgusLawRp 12; [1918] VLR 209; Cohen v Cohen [1929] HCA 15; (1929) 42 CLR 91; Dalton v Christofis [1978] WAR 423; see alsoLaw Reform Commission of WA – Limitations and Notice of Actions [1997] WALRC 90).

...In that context fraud includes equitable fraud. For an explanation of that concept see The Bell Group (in liq) v Westpac Banking Corporation (no.9) [2008] WASC 239. The essence of it is conduct that amounts to imposition and deceit [4294], [4840] and, particularly, [4842] – [4917]. It is a result of unconscionable dealing.

...It would be unconscionable for a person to obtain property for the benefit of others and then use the property as his or her own. The fraud here perpetrated, on the appellants’ case, is not the acquisition of a legal estate from the appellants nor a breach of any contract with them. It is by depriving them of their equitable ownership of the land. It is a breach of a trust relationship. The Frauds & Limitations Act does not impose time limits on claims for equitable relief. Such claims are time limited by reference to the equitable defences of laches and acquiescence.”

17. On my part, I consider it important to start with a proper understanding of the meaning of the phrase “equitable reliefs or remedies”. What does that phrase mean or what are such reliefs? These kinds of reliefs or remedies are those developed by the courts of equity from about the time of Henry VIII. The Chancery Division Courts in England are responsible for these developments. They were developed to provide more flexible responses to changing social conditions or needs as opposed to those developed based on precedent-based common law remedies. Equity is said to operate on the conscience of a particular person, usually a defendant’s knowledge, state of mind and motives which may be relevant to whether a remedy should be granted or not. Hence, equity is often said to do what the law cannot do to do justice but cannot be done in contradiction of an available legal remedy or position. In Coecon Ltd v. John Robert Steele (2004) N2532, I made this clear in the following terms:
    

“[it is] trite law that equitable principles such as the doctrines of laches and acquiescence come into operation to do what the law cannot do in terms of providing a remedy where there is no legal remedy available in the interest of doing substantial justice. I referred to this principle in Bank of South Pacific Limited v. The Public Curator as Administrator of The Estate of the late Geno Iari, Paul Wagun & Ors. That was in the context of legal and equitable mortgages. There, I reiterate the trite legal position that equity cannot apply in conflict with a legal remedy. This means where there is an available legal remedy; no equitable remedy can override that which the law already provides for.”

18. Over time, legal and equitable remedies or reliefs have merged, such that, a court of competent jurisdiction can issue either, or both, remedies. Clearly therefore, equitable remedies or reliefs continue to remain relevant and applicable presently in most common law jurisdictions. Nevertheless, the distinction between equitable and legal remedies remains relevant in several significant instances. Equitable remedies are distinguished from legal remedies in that, legal remedies are available to a successful plaintiff as of right, while equitable remedies are available at the discretion of a court. There is a variety of equitable remedies. The main ones are usually the following:
    
    • (a) injunction;
    • (b) specific performance;
    • (c) account of profits;
    • (d) rescission;
    • (e) rectification;
    • (f) equitable estoppel;
    • (g) certain proprietary remedies, such as constructive trusts;
    • (h) subrogation;
    • (i) in very specific circumstances, an equitable lien;
    • (j) equitable compensation;
    • (k) appointment or removal of fiduciary;
    • (l) interpleader; and
    • (m) equitable tracing as a remedy for unjust enrichment
      
19. Out of these, injunctions and specific performance are usually the two main kinds of equitable remedies sought and granted. Of course, injunctions can be mandatory or prohibitory. Specific performance as the phrase suggests, requires a party to perform a particular act usual based upon a contract, such as a completion of a contract of sale. Grant of such a relief is usually dependent on two additional conditions being met. Firstly, damages must be an inadequate remedy and secondly, there must be no bar to a grant of such an equitable relief as specific performance. A bar to equitable relief arises for example, when the court's continuous supervision of a defendant is not feasible.
    
20. Certain important equitable principles can also limit or prevent the granting of equitable remedies. One such well known principle is expressed in the phrased: “he who comes to equity must come with clean hands”. In other words, the court will not assist a claimant who is himself in the wrong or acting for improper motives. Both the National Court and this Court have adopted and applied this principle in many instances. An example of that is the decision of this Court in Philip Takori v. Simon Yagari & Ors (2008) SC905 (per Kirriwom, Gavara - Nanu and Kandakasi, JJ (as I then was). There, the State and other defendants applied for summary determination of the proceedings against them in the National Court. The Court granted that application. On appeal, it became clearer that the defendants had not filed their notice of intention to defend within the time required by the rules of Court. That meant that, they needed leave of the Court to take further steps in the proceeding, including a formal filing of their defence. No such leave had been sought and granted. They applied for the dismissal orders without filing and serving any defence with leave of the Court. In the circumstances, the Supreme Court upheld the appeal and overturned the trial court’s decision. In so doing, it reasoned amongst others:
    

“The State and the other defendants are claiming a lack of strict compliance of the rules. It is therefore fair and reasonable that, they come with full compliance of the requirements of the law or the rules of the Court. After all, equity requires them to come with having strictly complied with the rules or the law first for equity requires, ‘he who comes to equity must come with clean hands.

In order for the State to properly and fairly argue for the Appellants to strictly comply with the law in the areas it argues for, it must first comply with all of the requirements of the law as they apply to it. The evidence clearly shows failures by the State and the other defendants to meet the requirements they were obliged to meet to give them proper foundation to make their application. Hence, they could not file and serve their defence without first seeking and securing the leave of the Court. Similarly, the State and the other defendants could not file and serve the motion leading to the decision or judgment, the subject of this appeal. Further, the State and the other defendants could not argue for and succeed on their application, without first, seeking and securing the leave of the Court to do so. They did not seek a dispensation of the strict compliance of the rules to facilitate a hearing of its motion and eventually judgment in its favour. The trial judge was obliged to consider all of these issues, but he did not. Accordingly, we have no hesitation in finding that the learned trial judge fell into a clearly identifiable error.”

(Underlying supplied)

21. Other equitable principles which can preclude the grant of an equitable remedy are laches and acquiescence. These are principles of equity which concerns a party’s conduct in response to the actions of another. The first of these two principles comes into operation, when a party unduly delays taking the appropriate step or action, for example delay in commencing court proceedings: See Louis Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1144, Augwi Ltd v. Xun Xin Xin (2014) SC1616 and Hiwi v. Rimua (2015) SC1460. Acquiescence goes along with laches in that, it operates against a party complaining about another’s action or conduct that results in a loss, damage, or a detriment when the party concerned was in a position to take appropriate steps to prevent such loss, damage or detriment from occurring but failed to so act. Hence, the doctrine infers consent by reason of the complaining party’s failure to act appropriately upon becoming aware of the others conduct or action to prevent the complained loss, damage, or detriment from occurring: See Koang No 47 Ltd v. Monodo Merchants Ltd (2001) SC675 (per Amet, Injia and Kandakasi (as we then were); Jackson Laka v. Pius Nui (2013) SC1223, per Salika, DCJ (as he then was), Hartshorn and Kariko JJ.
    
22. The decision of this Court in Michael Kewa v. Elias Mai Kombo (supra) touches on the principle or doctrine of laches and acquiescence which I endorse. To do justice, the starting time or date, should be from the date when a claimant becomes aware of any eventually, be it fraudulent or otherwise that gives rise to a cause of action and not the date of its actual occurrence, as I did in Tau Gumu v. PNGBC (2001) N2288. This Court in its decision in Anave Ona v. National Housing Corporation and Nambawan Supa Limited (2009) SC995, per Mogish, Manuhu & Makail, JJ endorsed ,my decision in the following terms:
    

“It would be unconscionable for an employer and the Board, having failed to comply with their statutory duties, to wear the cloak of Frauds and Limitations Act and deny an employee and a contributor of an entitlement provided for by law. On this note, we endorse the decision of Kandakasi J in the case of Tau Gumu v PNGBC (2001) N2288 where his Honour ruled against an employer who attempted to rely on the Frauds and Limitations Act after it failed to give the required notice under the Workers Compensation Act 1988 resulting in lapse of time beyond 6 years.”

23. In my considered and respectful view, going back to the date of an actual breach or a fraud committed against another, the occurrence of which, is unknown to the victim of the breach or a fraud would cause the fraudster or the perpetrator to gain from his or her own action and the real victim would be caused to suffer yet again, this time with the endorsement of the courts. Hence, I do not subscribe to the view in John Hiwi v Rendle Rimua (2015) SC1460 and others that follow or represent that view, that the time for the purposes of working out whether a matter is statutorily time barred is the date when a contractual or other breach or a fraud is committed and not the date when the fraud or breach is revealed, made known or is discovered by the victim of such breaches.
    
24. The principles of common law and equity were adopted into our jurisdiction, by virtue of Schedule 2.2 (1) of the Constitution. Additionally, s. 155(4) of the Constitution vests both the National Court and this Court with:
    

“an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”

25. It is settled law now that the provisions of s. 155 (4) can be invoked on a meeting of several factors. In William Powi (Acting Administrator for Southern Highlands Province) v. Southern Highlands Provincial Government (2006) SC844, per Jalina and Gavara-Nanu JJ and Kandakasi J (as I then was), carefully reviewed and considered all the cases on point and clearly stated the correct parameters for the application of s. 155(4) in the following terms:
    

“From the foregoing, we are of the view that, there are about five important features or attributes of s. 155 (4) of the Constitution. These are as follows:

1. The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make ‘such other orders as a necessary to do justice in the particular circumstances of a case’ before the Court;
2. Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead, it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution;
3. Where remedies are already provided for under other law, the provision does not apply;
4. The provision does not grant the Supreme Court power to set aside or review the decision of another Supreme Court regardless of the number it is constituted, except as may be provided for by any law; and
5. A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law.’
   
26. Almost 10 years later, this Court had occasion to consider a case in which a party sought to invoke s. 155(4) of the Constitution to injunct criminal proceeding. That was in matter of Eremas Wartoto v. The State (2015) SC1411 (per Injia CJ; Sakora, Kirriwom, Kandakasi and Davani, JJ. (as we then were). In Sakora J and my joint judgment,we referred to the above statement of the law and said at paragraph 64:
    

“Hence, it would be an abuse of the process of the National Court and s. 155 (4) of the Constitution itself for an accused person to seek to invoke the civil jurisdiction of the National Court to effectively review criminal investigations and prosecutions, without first exhausting the remedies that are available under the District Court Act, the Criminal Code and the National Court’s Criminal Practice Rules.”

27. Subsequent decisions have endorsed the statement of the proper parameters of s. 155(4) of the Constitution as enunciated in the William Powi case. For examples of cases on point, I refer to the decisions in Medaing v. Ramu Nico Management (supra), and Hartshorn J’s decision in Boochani v. Independent State of Papua New Guinea (2017) SC1566.
    
28. Thus, an applicant or a plaintiff in any proceeding could ask the courts in PNG to grant any of the known reliefs that are available in equity which includes declaratory reliefs. Applicants or plaintiffs could also seek other reliefs under s. 155 (4) of the Constitution, conditional on meeting the requirements as spelt out by the decision in Powi v. Southern Highlands Provincial Government (supra). It must, however, be noted that, seeking mere declaratory reliefs cannot of itself amount to or be regarded as seeking an equitable relief. The Court must, examine the pleadings in each case, to determine the true nature or the underlying basis for the relief sought.
    

APPLYING THE LAW

29. An application of the above principles of law requires an examination and consideration of the declaratory reliefs the appellant pleaded and sought as well as her underlying reason or motive for seeking those reliefs. Carefully considering each of the respective pleadings I note, firstly that, the Court’s jurisdictional foundation to consider and grant any of the reliefs are not pleaded. Secondly, and as already noted, the first relief sought which seeks a declaration that the Settlement Agreement is valid and enforceable, is the primary relief sought by appellant. If that relief is granted a consideration and grant of the rest of the reliefs sought is possible. However, the opposite would be the case if the first relief sought is refused.
    
30. It is thus important to first consider the nature of the reliefs sought and the appellants underlying reason or motive for seeking the reliefs. I note, there is no dispute that, the Settlement Agreement which is central to the reliefs sought in OS 426 of 2016, received judicial consideration and was ultimately converted into a National Court judgment or order in the proceedings referenced, MC No. 15 of 2002 – Rachel Karen Kove (formerly Po’o) v. Tau Po’o. Apparently, the parties entered into settlement negotiations and decided to settle the proceeding and incorporated the terms of their settlement into the Settlement Agreement. That settled that proceeding. Consequently, the parties decided to ask and the National Court in its deliberate judgment, decided to adopt the terms of the agreement and decided to make them as its own judgment and or orders. Subject only to any appeal or review process overturning or varying the judgment and or orders, that judgment and or orders of the Court finally determined the validity of the Settlement Agreement and its enforceability. It should necessarily follow therefore that, there was no need for a reconsideration of the question of the Settlement Agreement’s validity and consequentially its enforceability. Upon the Settlement Agreement being converted into a court judgment and or order and there being no appeal or review filed, the judgement and or orders of the National Court became final and binding on all the parties. Consequently, the issue of the validity of the Settlement Agreement was finally determined and the common law doctrine of res judicata came into operation. Accordingly, it was not open to the appellant or indeed, anybody else to reagitate the issue.
    
31. The only issue that could validly be raised was an enforcement of any of the terms of the Settlement Agreement as an order or judgment of the Court prior to the expiry of the time fixed by s. 16 (5) of the FLA, which clearly states: “An action shall not be brought upon any judgment after the expiration of twelve years commencing on the date when the judgement became enforceable.” Pursuant to Order 12, rule 13 (3) of the National Court Rules orders and judgments of the Court take effect as of the date of making an order or the date of giving of a judgment, unless the Court otherwise orders or directs at the time of making of the orders or the giving of a judgment. In this case, the orders endorsing the Settlement Agreement were made on 05^th December 2002. Hence, they became enforceable from that day forward subject to the terms of settlement and orders of the Court.
    
32. The terms of the Settlement Agreement favoured the appellant. Clause 3.1(a) and (b) of the agreement obligated the first respondent to settle all outstanding costs and utilities on the Property and transfer its title to the appellant. Both events were to take place within 30 days of the agreement and ultimately the judgment or orders of the Court. Thus, if after the agreed period of 30 days, the agreed payments and transfer did not take place, the appellant had both the right and the duty or responsibility to take the appropriate steps to enforce the judgment or orders of the National Court or the parties’ agreement. The appellant took no such action. Under s. 16 (5) of the FLA, the appellant had a further long 12 years to take such steps. That was for “action upon a judgment” which is different for seeking to enforce a judgment. Seeking to enforce a judgment would be within the same proceeding as the judgment while an action upon a judgment would be fresh action to effectively enforce a prior judgment or order or a party seeking to benefit from a prior order or judgment. Section 16 (5) in my view, provides for the latter: See Atlas Corporation Ltd v. Ngangan (2020) SC1995, per Logan J at [44] to [60] with whom Salika CJ and Thompson J (as she then was) agree.
    
33. For reasons only known to the appellant, she did not take the appropriate steps to enforce the judgment of the Court within the divorce proceeding and hence the terms of the parties’ agreement, either after the expiry of the agreed 30 days or prior to the expiry of the time limit under s. 16 (5) of the FLA. She adduced no evidence of what steps, if any, she took toward enforcing the consent judgment and orders. Similarly, she adduced no evidence of, what if any, factor, or eventuality that prevented her from taking the necessary steps to have the consent judgment and orders enforced. Only after the second respondent was declared insolvent and a trustee was appointed to administer his affairs, the appellant sprang into action by issuing the proceedings under OS 426 of 2016. That in my view, was to clearly prevent the second respondent from including in its administration the Property the subject of this proceeding and the prior divorce proceeding and thereby prevent the insolvency orders from being enforced against the Property.
    
34. As already noted, he who comes to equity must do so with clean hands. Also, as already noted, it is well settled law that, the equitable principles of laches and acquiescence can operate against a person who fails to exercise his or her right within a reasonable time or when required to. Here, the appellant had the legal right, power, and ability to enforce the orders made under the divorce proceeding after the expiry of 30 days following the entry or the making of the relevant orders. The relevant orders were made on 05^th December 2002. The 30 days mentioned, started to run from that day forward and ended on 05^th January 2003. For reasons only known to her, the appellant failed to take the appropriate steps to have the orders and or judgment enforced soon after 05^th January 2003 or at all. Similarly for reasons only known to the appellant she did not even act within the 12 years allowed and provided for by s. 16 (5) of the FLA.
    
35. The time limit of 12 years is not open for any extension by any court: See my decision in Joel Aundambui v Post PNG Ltd (2014) N5772, at [96]. This is unlike the position for instance under s. 5 of the Claims By and Against the State Act or s.54 (6) of the Motor Vehicles (Third Party Insurance Act) Chp. 295, where the Courts are given the power to extend time on a case being appropriately made out. The only known exception to this is in cases of concealed fraud as explained by the decision of this Court in Anave Ona v. National Housing Corporation & Or (supra) and Michael Kewa v. Elias Mai Kombo (supra); Tau Gumu v. PNGBC (supra) as applied in several cases as in Francis Kunai v. PNG Forest Authority (2018) N7570 at [56] and [57].
    
36. In Tau Gumu’s case, I had the opportunity to look at the doctrine. There, Tau Gumu sued his then employer, the PNGBC for the bank’s failure to properly lodge his claim for workers compensation by giving the required notice under the relevant legislation. That failure resulted in Mr. Gumu missing out on workers compensation for a medical condition he developed and eventually suffered whilst in the cause of his employment. The bank raised the issue of statutory time bar under s.16(1) of the FLA. I resolved the issue against the bank. In so doing I reasoned:
    

“... the bank’s failure to give the required notice under the WCA [Workers Compensation Act] and notify the plaintiff of that failure, led the plaintiff to believe that the necessary requirements were being taken care of and that he need not do anything in relation to his right to compensation. As such, he did not know that he had a cause of action against the defendant until he became aware of the defendant’s failure to lodge the required notice under section 42 (1) of the WCA in 1998. Knowledge of the Bank’s failure is the most important, if not the material fact in this action. It is the failure of the Bank that is the basis of the action. Without it, there would not be an action. Time must be computed from 1998 onwards”.

37. I then went on to hold that equity and justice dictated that, the bank should not be allowed to benefit from its own failure. For it was the bank which created the false impressions and as such, it would be unconscionable to permit it to gain from its own failure. I found the case to be analogous to cases in which it has been held that, if there is fraud by the employer, time did not begin to run until the discovery of the fraud. Fraud in that context, was not confined to deceit or dishonesty but it covered actions of the defendant.
    
38. In the present case, the appellant was a party to the divorce proceeding which resulted in a settlement, the terms of which were approved by the Court and became part of the Courts decision, judgment and or orders. She stood to gain more from the agreement as approved and endorsed by a court’s judgment and or orders. In the absence of any evidence to the contrary, I am of the view that the appellant knew and understood well the terms of the agreement and the court judgment and or orders. Nothing was a secret or withheld from her until the declaration of insolvency of the first respondent and the appointment of the second respondent as the first respondent’s trustee. Hence, the time for the purposes of s. 16 (3) of the FLA ran upon expiry of the 30 days within which the various payments and transfer of the Property to the appellant were to take place. That date was 05^th January 2003. Hence, any enforcement proceeding had to be taken well before 05^th January 2015. The appellant did not take any step to enforce the judgment and orders endorsing the Settlement Agreement.
    
39. Years later, the appellant filed her OS 462 of 2016 proceeding on 19^th July 2016. That was more than a year after the 12 years’ time limit had expired and well after the first respondent had gone on to incur other debts and liabilities, he was not able to satisfactorily meet, and which led to the declaration of his insolvency. The proceeding under OS 426 of 2016 effectively sought to enforce the Settlement Agreement as translated into the National Court judgment and or orders made on 05^th December 2002. The proceeding’s true intent and purpose was thus to enforce the judgment and or orders of the Court and thereby prevent the insolvency orders and appointment of the first respondent’s trustee from taking their normal course, more than a proceeding merely seeking equitable reliefs with no prior litigation history. The Settlement Agreement settled the divorce proceeding. It was not an agreement on its own where equitable reliefs could be sought and obtained for an enforcement of the agreement. Without the prior court proceedings and orders and judgments of the court, the appellant had no cause to issue the OS 462 of 2016 proceeding. The OS 462 of 2016 proceeding was filed after the appellant had failed to exercise her legal right initially after the expiry of 30 days from the date of the decision in the divorce proceeding and thereafter anytime within the 12 years’ time specified in s. 16 (5) of the FLA. By her conduct, the appellant had chosen not to enforce the judgment and or orders made in her favour in the divorce proceeding. Consequently, by her conduct she told the parties in the proceeding and all others concerned that, she decided against taking any benefit of the Settlement Agreement as endorsed and translated into National Court judgment and or orders. She was therefore happy to allow the time for the enforcement of judgment under s. 16 (5) of the FLA to expire.
    
40. If the appellant was interested in benefiting from the Settlement Agreement and hence the National Court judgment and orders endorsing the same, it was open to her to seek enforcement of the judgment and or orders of the National Court, as of right by a simple motion for the appropriate orders. It was neither open then nor in 2016 for her to issue fresh and separate proceedings seeking the kinds of reliefs she sought in OS 462 of 2016. The issuance of that proceeding amounted to an abuse of the process for the Court and in any case the proceeding was issued outside the 12 years limitation under s. 16 (5) of the FLA. Equity and the provisions of s. 155 (4) can only do that which the law cannot do to do justice in each case where a right or interest is at stake and there is no remedy or redress available. In this case, the appellants rights and interest were created and provided for in the Settlement Agreement settling court proceedings and which the Court appropriately adopted as its own judgment and or orders.
    
41. Enforcement proceedings as provided for in the National Court Rules are well established processes that are available to any party wishing to enforce judgments when there is want of compliance or satisfaction of a judgment. There is no vacuum for the principles of equity and the provisions of s. 155 (4) of the Constitution to fill in. For reasons only known to the appellant, she did not exercise her right and make use of the process that was available to her from 05^th January 2003 onwards until 05^th January 2015. By her own conduct she precluded herself from coming to Court for any enforcement of the Settlement Agreement and the judgment and or orders endorsing the same through separate proceedings and after the expiry of the time limit under s. 16 (5) of the FLA.
    

Short Answer to Questions 1 and 2 or Issues (a), (b), (c) and (d)

42. In short, I find the real purpose or motive of the appellant in issuing the OS 462 of 2016 proceeding, was to enforce the judgment and orders of the National Court in the divorce proceeding. It was not an action in equity for equitable reliefs. Hence, the provisions of s. 18 of the FLA are irrelevant and inapplicable. The provisions of s. 16 (5) of the FLA apply instead. The appellant had the legal right and opportunity to take the appropriate steps to have the relevant judgment and orders enforced initially after the expiry of the agreed 30 days from the date of the judgment and or orders. After having failed to do so, she had a further 12 years to take the appropriate steps to enforce the judgment and or orders. For reasons only known to her she failed. By her failure to act promptly and in any case within the 12 years limitation under s. 16 (5) of the FLA, she decided to forego her right to enforce the judgment and or orders and hence the Settlement Agreement. Consequently, not only is the appellant precluded by s. 16 (5) of the FLA but also, by her own laches and acquiescence from taking any action to enforce the judgment and or orders of the Court and consequently the Settlement Agreement.
    
43. For these reasons, I find no error in the learned trial judges considered judgment. Accordingly, I would dismiss grounds (a), (c), (d) and (e) of the appeal.
    
44. I now turn to a consideration of the third and remaining question or issue (d) which is ground (b) of the appeal
    

Question 3: Depending on the answer to questions (1) to (2), whether the action may also be regarded as an ‘action upon a specialty’ under s. 16(3) of the FLA and its effects (if any)?

45. As indicated already, the appellant is also appealing against the learned trial Judge’s finding that the Settlement Agreement could also be regarded as a specialty and thus time barred under s. 16(3) of the FLA. The appellant’s argument is based on her claim that her claim was based in equity and that the reliefs she sought were all equitable reliefs and were thus protected by s. 18 of the FLA.

,

46. I already addressed the appellant’s arguments that her claim was based on equity and decided to reject it. I also found the learned trial Judge did not err in his main finding which was that the Settlement Agreement later became a judgment or court order. In respect of the remaining issue, I also note that, the finding by the learned trial Judge that the Settlement Agreement may be regarded as a specialty was made in the alternative. OS 462 of 2016 was an action seeking to enforce the judgment and or orders arrived at by the parties’ consent under the divorce proceeding between the appellant and the first respondent. That was based on the Settlement Agreement which settled the divorce proceeding and was thus converted into a judgment and or orders of the National Court. Given my view on the main finding of the learned trial Judge for the reasons I have given, the alternative consideration on specialty does not arise. It was thus unnecessary for the learned trial Judge to get into the alternative finding and consequentially not necessary to consider and determine the alternative finding and the appeal against that part of the judgment. I would, hence, dismiss the arguments on the alternative finding by the trial Judge as an unnecessary issue for consideration and determination and accordingly strikeout that part of the judgment appealed against.
    

SUMMARIES AND ORDERS OF THE COURT

47. In summary, the appellant’s claim was in effect an action seeking to enforce the judgment and orders of the National Court under proceeding, OS 426 of 2016 and was not an action based solely on equity. By reason of that, the provisions of s. 16 (5) applied and not s. 18 of the FLA. Consequently, the proceeding under OS 426 of 2016 was statutorily time barred. In view of that decision, it was not necessary to consider the alternative issue of specialty the learned trial Judge considered. Ultimately, I would dismiss all grounds of the appeal and accordingly, make the following orders:
    
    • (1) The appeal is dismissed in its entirety.
      
    • (2) The decision and judgment of the National Court in OS 426 of 2016 that, that proceeding did not solely seek equitable reliefs but an action upon judgment, is affirmed.
      

(3) The finding and decision on the alternative finding of specialty did not arise, its consideration was unnecessary and is therefore struck out.

(4) The appellant shall pay the respondents’ costs of the appeal on a party/party basis which may be taxed if not agreed.

48. ANIS J: The appellant appeals against a final decision of the National Court made on 4 November 2019 in proceeding OS 462 of 2016 – Rachel Karen Kove v. Tau Po’o and David Guinn as Trustee of the Property of Tau Po’o (OS 462 of 2016). After a full hearing, the trial Judge dismissed the claim in its entirety with costs. The appellant was aggrieved and filed this appeal on 13 December 2019 where she seeks to overturn the National Court’s decision.

BACKGROUND

49. The appellant is the former wife of the first respondent. During the tenure of their marriage, they jointly acquired a residential property. The property is described as State Lease, Volume 33, Folio 8083, Section 239, Allotment 25, Hohola, National Capital District (the Property). In 2002, the appellant filed for divorce in proceeding MC No. 15 of 2002 – Rachel Karen Kove v. Tau Po-o (divorce proceeding). On 5 December 2002, a decree nisi was granted by the National Court. The decree nisi was made absolute immediately by the same order of 5 December 2002. The order, amongst others, dissolved the couple’s marriage.

50 Also included as part of the Court’s final orders of 5 December 2002, was a Financial Settlement Agreement (the Settlement Agreement). It was signed by the appellant and the first respondent a day earlier on 4 December 2002. The main terms of the Settlement Agreement as per clause 3.1(a) & (b) were that the first respondent would, within 30 days from the date of the agreement, settle all outstanding costs and utilities of the Property and transfer the Property to the appellant. The Property then was still owned by National Housing Corporation (NHC). As it turned out, the Property was never transferred to the appellant within 30 days as stipulated in the agreement, or at all. Instead, it continued to remain under NHC’s name until 31 March 2008 when it was transferred to the first respondent as its registered proprietor. After that, the Property remained under his name until the time when he was declared bankrupt by the National Court on 11 May 2015. Sometime later, on 30 March 2016, the second respondent was appointed by the National Court as the trustee to the Property.

51. The appellant filed OS 462 of 2016 on 29 July 2016 where she requested the Court to validate the Settlement Agreement against the respondents by way of various declaratory relief, amongst others, so that the Property could be transferred to her name. The trial Judge dismissed the claim based on time limitations under s. 16 of the Frauds and Limitations Act 1988 (FLA). In dismissing the appellant’s claim, the trial Judge gave his reasons at paragraphs 11 to 16 as follows:

“11. In this instance are non-equitable remedies being sought with equitable relief being sought in addition? The primary relief sought by the plaintiff is declaratory relief seeking declarations as to how the Agreement should be interpreted and the consequences of such interpretation. The plaintiff is not primarily seeking equitable relief such as for instance, an account of profits, recission or rectification. The plaintiff is also not seeking specific performance but merely a finding that the insolvency of the first defendant does not affect the plaintiff’s right to seek specific performance.

12. As the plaintiff is not seeking equitable relief primarily, but is seeking declarations as to the interpretation and consequences of the Agreement, s. 18 Frauds Act does not apply: Hiwi v. Rimua (supra), Mamun Investment v. Koim (supra). To the extent that injunctive relief is sought and specific performance, although as mentioned specific performance is not specifically sought, that relief sought is consequential.

13. As s. 18 Frauds Act does not apply s. 16 Frauds Act does apply. It is not in dispute that the Agreement was sanctioned in its entirety as part of the Decree Nisi ordered on 5^th December 2002. The second defendant submits that the Agreement became an order of the Court on 5^th December 2002 and is a judgment for the purposes of s. 16(5) Frauds Act. The plaintiff makes the submission that if 12 years from the date of the judgment of the Court being the date of the Decree Nisi is calculated, that date is 5^th December 2014. The plaintiff submits that its claim is not statute barred however, as s. 18 Frauds Act applies and so s. 16 does not apply.

14. After considering the above submissions and to my mind, it was the judgment of the court of 5^th December 2002 that it be ordered that the Agreement was sanctioned, as part of the Decree Nisi. Consequently, it is a judgment of the Court and falls within the wording of s. 16(5) Frauds Act. As 16(5) applies the Agreement which is a judgment of the court cannot be enforced as this proceeding was commenced more than 12 years after the date when the judgment became enforceable.

15. Further and similarly, if the Agreement is not a judgment of the court, then it can be considered to be a specialty: Bank South Pacific v. Leahy (2002) N2263 and Oil Search Ltd v. Mineral Resources Development Corporation Ltd (2010) SC 1022. Section 16(3) Frauds Act operates to preclude an action being brought more than 12 years after the date when the cause of action accrued, which is so in this instance.

16. As s. 16(5) and/or s. 16(3) Frauds Act operate to preclude the plaintiff’s action, this proceeding should be dismissed. Given this it is not necessary to consider the other submissions of counsel.”

GROUNDS OF APPEAL

52. The appellant raises 5 grounds of appeal. The grounds oppose, in particular, the above reasonings and findings of the trial Judge. I summarize them as follows:

(a) The trial Judge erred when he found that the cause of action was to enforce a court order and therefore time barred pursuant to s. 16(5) of the FLA when her cause of action was in equity where she was seeking equitable relief and therefore protected by s. 18 of the FLA.

(b) The trial Judge erred in his alternative finding that the cause of action was based on specialty and was time-barred under s. 16(3) of the FLA having been filed outside the 12-year time limitation period. The appellant claims under this ground again that her cause of action was in equity and had the protection of s. 18 of the FLA.

(c) The trial Judge erred when he found that ss. 16(5) and 16(3) of the FLA precluded the appellant from bringing the action when the cause of action was in equity and was protected by or under s. 18 of the FLA.

(d) The trial Judge erred when he found that the cause of action did not primarily seek equitable reliefs but rather declarations on the interpretation and consequences of the Settlement Agreement when the claim considered as a whole showed that the appellant was seeking equitable reliefs only by specific performance and injunctive relief, and as such the trial judge’s decision was unjust and unfair.

(e) The trial Judge erred in misapplying the interpretation of the primary relief to say that it precluded the appellant’s claim from being regarded as seeking purely equitable relief when the primary relief was to only seek confirmation of the legality of the Settlement Agreement proceeded by her claim for equitable relief.

ISSUES

53. The main issues are, (i), whether all the relief sought in the originating summons were equitable relief, (ii), whether OS 462 of 2016 may be regarded as an ‘action upon a judgment’ or an ‘enforcement proceeding,’ within the meaning of s. 16(5) of the FLA, (iii), if OS 462 of 2016 was ‘an action upon a judgment’, whether it was commenced within 12 years from the time when the judgment or order was ‘enforceable’ within the meaning of s 16(5) of the FLA, (iv), whether the appellant is precluded from enforcing the Settlement Agreement, and (v), subject to the findings on the above issues, whether the action may also be regarded as an ‘action upon a specialty’ under s. 16(3) of the FLA and its effects (if any).

EQUITABLE RELIEF ONLY OR MIXED RELIEF

54. The appellant submits the entire claim or relief as pleaded in the originating summons were equitable in nature. Relevance and applications of ss. 16 and 18 of the FLA were issues raised before the trial Court. The appellant submits that her claim qualified under s. 18 and not s. 16 as determined by the trial Judge. The respondents support the findings and conclusions reached on the matter by the trial Judge, which are captured in paragraphs 12 and 13 of the said decision.

55. Section 18 of the FLA reads:

“18. Claims for specific performance, etc.

Section 16 does not apply to any claim for specific performance of a contract or for an injunction or for other equitable relief.

......”

56. The pleaded relief in OS 426 of 2016 are as follows:

“1. An order by way of a Declaration that the Financial Settlement Agreement dated 4^th December 2002, as entered into between the Plaintiff and the First Defendant in National Capital proceedings MC No. 15 of 2002 – Rachel Karen Kove (formerly Po’o) v. Tau Po’o is lawful, binding and enforceable by the Plaintiff against the First and Second Defendant.

2. An Order by way of a Declaration that as a consequence of the Financial Settlement Agreement dated 4^th December 2002, the property described under State Lease Volume 33, Folio 8083, Section 239, Allotment 25, Hohola, National Capital District is no longer the property of the First Defendant as he has under agreement absolutely assigned and or agreed to transfer the ownership of the said property and all his rights to the property to the Plaintiff.
3. An order by way of a Declaration that the National Court Order dated 11^th May, 2015 in National Court proceedings MP No. 27 of 2014 (Comm) – Yagudi Limited (in liquidation) -v- Tau Po’o ordering that the First Defendant is adjudged to be insolvent has no effect on the Plaintiff’s right to enforce the Financial Settlement Agreement dated 4^th December, 2002.
4. An Order by way of a Declaration that pursuant to the express clauses of the Financial Settlement Agreement dated 4^th December 2002, in particular Clause 3.1 of the said Agreement, the First Defendant has absolutely assigned and/or transferred all his rights and claims of ownership over the property as contained in the State Lease described as State Lease Volume 33, Folio 8083, Section 239, Allotment 25, Hohola, National Capital District to the Plaintiff.
5. An Order by way of a Declaration that the First Defendant at the time of signing of the Financial Settlement Agreement dated 4^th December, 2002 completely and absolutely assigned all his rights including proprietary rights over the property described as State Lease described as State Lease Volume 33, Folio 8083, Section 239, Allotment 25, Hohola, National Capital District to the Plaintiff.
6. An Order that the Second Defendant’s rights and powers as Trustee of the First Defendant’s property as conferred to him by virtue of the Certificate of Appointment of Trustee dated 30^th March, 2016 cannot extend to the property the subject of the Financial Settlement Agreement date 4^th December, 2002 and the property the subject of these proceedings, as the property has been completely and absolutely assigned and or transferred by the First Defendant to the Plaintiff under the said Agreement dated 4^th December, 2002.
7. An Order that the Second Defendant has no legal basis to exercise his rights and powers conferred on him under the Certificate of Appointment dated 30^th March, 2016, over the property described as State Lease Volume 33, Folio 8083, Section 239 Allotment 25, Hohola, National Capital District on the basis that the said property is no longer the First Defendant’s property.
8. An Order that the insolvency of the First Defendant does not affect the right of the Plaintiff to seek specific performance of the Financial Settlement Agreement dated 4^th December, 2002, as against the First and Second Defendant.
9. An Order that the Second Defendant as Trustee of the property of the First Defendant shall forthwith and within fourteen (14) days cause to be transferred the Title to the property described as State Lease Volume 33, Folio 8083, Section 239, Allotment 25, Hohola, National Capital District to the name of the First Plaintiff.
10. An Order by way of permanent injunction restraining the First Defendant and his employees, staff servants, agents and whomsoever holding themselves out to be acting for an on behalf or under express or implied instructions from the First Defendant from taking any active or passive steps to transfer the property as described as Sate Lease Volume 33, Folio 8083, Section 239, Allotment 25, Hohola, National Capital District to any other person(s) other that the plaintiff.
11. An Order by way of a permanent injunction restraining the Second Defendant and his employees, staff, servants, agents and whomsoever holding themselves out to be acting for and on behalf or under express or implied instructions from the Second Defendant from taking any active or passive steps to transfer the property as described as State Lease Volume 33, Folio 8083, Section 239, Allotment 25, Hohola, National Capital District to any other person(s) other than the Plaintiff.
12. An Order by way of a mandatory injunction be ordered to command and compel the First and Second Defendant to take the appropriate steps to have the property described as State Lease Volume 33, Folio 8083, Section 239, Allotment 25, Hohola, National Capital District formerly transferred to the name of the Plaintiff and the said transfer to be concluded within thirty (30) days.
13. Any further orders that the Court deems just and appropriate in the circumstances.
14. Costs

......”

57. The first obvious query is whether the primary relief sought, namely, the declarations, were equitable relief. Or how does this Court get to determine if the declarations sought are equitable relief or not? In my view, these queries have already been considered and answered by this Court in various case authorities. I firstly refer to the case of John Hiwi v. Rendle Rimua (2015) SC1460. This Court held, amongst others, as follows:

“(3) Actions only fall within Section 18 if the relief being sought is confined to specific performance, injunction or other equitable relief. Here, though the appellant sought specific performance of the three agreements, he also sought payment of K74.5 million (presumably as a debt) and damages for breach of contract and general damages, so the action did not fall within Section 18. It was caught by Section 16(1)(a).”

58. The next case is Mamun Investment Limited v. Nixon Koi (2015) SC1409. This Court also stated, and I quote at paragraphs 8 to 9 as follows:

“8. As to declaratory relief and whether it can be categorised as equitable relief, we have considered the following cases:

1. in Douglas Dent v. Thomas Kavali and Ors [1981] PNGLR 488, Bredmeyer J considered the power of the National Court to grant a declaratory judgment. He stated that he considered that the National Court’s jurisdiction or power to grant a declaratory order comes from in particular the latter words of s. 155 (4) Constitution. His Honour went on to state that:
   

‘Likewise, I consider that the power of the pre-Independence Supreme Court of Papua New Guinea to grant a declaratory order did not come from O.4 r.11 but rather from the statutory provisions conferring on that court powers of the Court of Chancery in England.’

His Honour then in detail considered that statutory history “which produced that result.”

2. in NCDIC v. Bogibada Holdings Pty Ltd and Anor [1987] PNGLR 135, Kapi DCJ (as he then was) stated that:
   

‘Declaratory relief is an equitable remedy and, therefore, the jurisdiction of the court is to be found in the principles of equity in England which have been adopted as part of the law in Papua New Guinea.’

This, however, was a case in which the proceedings were ‘.... instituted by way of judicial review....’

100. then in Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Ors (No 2) [1988-89] PNGLR 425, Kapi DCJ stated that he agreed with Bredmeyer J in Dent v. Kavali (supra) that the jurisdiction of the Court in granting declaratory orders is now to be found under s. 155 (4) Constitution.
     

4. in Tito v. Waddell (No.2) [1977] 1 Ch. 106 at p259, Megarry V.C. said:
   

‘In particular, I have it in mind that in ordinary actions for a declaration, as distinct from the Exchequer equity jurisdiction against the Crown, it is well settled that it is discretionary whether or not to make a declaration. That is not because the remedy is an equitable remedy, for as the Court of Appeal made plain in Chapman v. Michaelson [1908] UKLawRpCh 141; [1909] 1 Ch. 238 it is not: it is neither a legal nor an equitable remedy, but statutory.’

5. in the Federal Court of Australia decision of AWB Limited v. Honourable Terence Rhoderic Hudson Cole (No.2) [2006] FCA 913, Young J said:
   

‘45. It is a common misconception that a declaration is an equitable remedy. It is not; it is a statutory remedy that is conferred in terms emphasising that its grant or refusal is within the discretion of the Court: see Tito v. Waddell (No.2) [1977] 1 Ch. 106 at 259; Mayfair Trading Co Pty Ltd v Dreyer [1958] HCA 55; [1958] 101 CLR 428 at 454 per Dixon CJ; and Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 4th ed, Butterworths, 2002, at [19-159]. The discretion is to be exercised according to the facts and circumstances of the individual case, and the considerations that may be relevant to the exercise of the discretion are ‘so numerous that it is not possible to enumerate them:’ see Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192 at 203.’

6. then in H. Stanke & Sons Pty Ltd & Anor v. O’Meara [2007] SASC 246, in a judgment of the Full Court of the Supreme Court of South Australia, after embarking upon a detailed consideration of authority on whether by seeking declaratory relief, an applicant was seeking equitable relief; the Court said:
   

‘There are other cases.... where the plaintiff’s case is founded upon equitable principles and the declaration is simply the device which gives effect to those principles.’

and then:

‘Whilst it may be accepted that applications for mere declaratory relief cannot be regarded as seeking equitable relief, it is necessary to examine the pleadings in each case in order to determine the true nature of the relief sought.’

8 (9). In this instance the underlying basis for the declaratory relief claimed is not in equity. It is based upon a breach of a contract of sale and upon the tort of fraud. After giving consideration to the above authority, in our view the relief claimed in the Originating Summons cannot be categorised as “other equitable relief” in s. 18 Frauds and Limitations Act and so the respondents’ claims do not come within the wording of s. 18 Frauds and Limitations Act. Given this it is now necessary to consider the first ground of appeal.”

59. So, what can be said from these authorities are as follows. The National Court’s power to grant a declaration or declaratory relief is derived from s.155(4) of the Constitution. An applicant could also ask the Court to invoke its powers under equity and grant declaration under the equitable principles or relief, that is, those that were adopted as part of the Underlying Law in this jurisdiction immediately before Independence on 16 September 1975. (See s. 9(f), Schedule 2.2 – Constitution). It must, however, be noted that seeking a mere declaration(s) cannot itself amount to or be regarded as seeking equitable relief. For clarity or should the issue arise, the Court must examine the pleadings in each case, to determine the true nature or the underlying basis of the relief sought.

60. In the present case, I begin my observation by considering the 5 pleaded declaratory relief. The first declaration sought in the originating summons was to regard the Settlement Agreement valid and enforceable. I note therein that the appellant did not seek an equitable relief by the said declaration. The declaration, in my view, was to invoke the Court’s jurisdiction under s.155(4) of the Constitution to declare the Settlement Agreement valid and enforceable. Such intention, I observe, is also confirmed in one of the appellant’s appeal grounds, namely, ground 3(e). The appellant claims therein that the trial Judge erred when he misapplied the interpretation of the primary relief when he held that she was not seeking purely equitable relief when the primary relief was only seeking to confirm the legality of the Financial Settlement Agreement which the Appellant was entitled to seek as a primary relief so as to confirm that the Appellant can seek the equitable relief...... [part of ground 3(e)] The appellant appears to acknowledge the fact that relief 1 was sought as a separate primary relief from the others. It also appears, in my view, to be a fresh or separate cause of action that was commenced based upon the judgment of the divorce proceeding of 5 December 2002. Relief 2, 3, 4, and 5 are also pleaded as declarations. These declarations, in my view, were similarly sought based upon the Court’s inherent jurisdiction rather than in equity. And when they are considered in their totality, as the appellant submits that the court should, they clearly were consequential relief, or relief that were sought that were premised on the Court’s favourable finding on the first declaration or primary relief. In fact, the same may be said for relief 6 to 12 in the originating summons, that is, they were all sought premised on or consequential to the primary relief.

61. I would therefore find no error committed by and affirm part of the findings by the trial Judge where he found that the primary relief sought by the appellant was declaratory relief seeking declarations on how the Settlement Agreement should be interpreted and the consequences of such interpretation. I would also find no error and uphold part of the trial Judge’s decision where he said that the appellant was not primarily seeking equitable relief only and therefore s. 18 of the FLA did not apply.

62. In summary, I would find and uphold the trial Judge’s decision that the underlying cause of action in OS 462 of 2016 was not based in equity or for equitable relief and therefore did not fall under s. 18 of the FLA. In my view, His Honour did not err in that regard.

63. Now, I note that after the above, His Honour went on to find that the action was one for enforcement of a judgment or a court order and therefore fell under s.16(5) of the FLA. His Honour found the Settlement Agreement was sanctioned as part of the decree nisi and consequently was a judgment of the Court. Therefore, His Honour concluded that pursuant to s. 16(5) of the FLA, the appellant cannot enforce the judgment because OS 462 of 2016 was filed outside of the 12-year time-limitation period. I will address this finding by the trial Judge.

MEANING OF ‘ACTION’ – S. 16(5), FLA

64. Section 16(5) states:

“(5) An action shall not be brought upon any judgment after the expiration of twelve years commencing on the date when the judgement became enforceable.”

65. This Court recently in Atlas Corporation Ltd v. Dr Ken Ngnangan and the Independent State of Papua New Guinea (2020) SC1995 (Salika CJ, Logan J, Thompson J) considered s. 16(5) of the FLA in detail. It was an appeal against a decision of the National Court that had refused to grant declarations and issue writ of mandamus against the State. In its decision, the Supreme Court held, amongst others:

“2. The appellant’s application was not time-barred as “application... upon any judgment” in s 16(5) of the Frauds and Limitations Act 1988 excludes applications in the context of enforcement proceedings, and instead refers to fresh actions brought in respect of a judgment.”

66. Justice Logan therein considered the origin of the FLA with references to the United Kingdom’s equivalent statute, Limitation Act 1980 and the latter’s predecessor Limitation Act 1930 (repealed). His Honour also referred to relevant overseas case authorities on point including In Lowsley v Forbes [1998] UKHL 34; [1999] 1 AC 329, Ridgeway Motors (Isleworth) Ltd v ALTS Ltd [2005] EWCA Civ 92; [2005] 1 WLR 2871, Berliner Industriebank Aktiengesellschaft v Jost [1971] 1 QB 278 and WT Lamb & Sons v Rider [1948] 2 KB 331. His Honour, and I would paraphrase, found on point that the originating summons, which was the subject of the appeal, was not an ‘action’ within the meaning of s. 16(5) of the FLA. Rather, His Honour found it to be one of enforcement (of a court order or judgment) which was not subject to s. 16(5) of the FLA.

67. Justice Logan explained with clarity ‘action’ and ‘enforcement’ with references to case law at paragraphs 46 to 55 and 59, as follows:

“46. In Lowsley v Forbes [1998] UKHL 34; [1999] 1 AC 329 (Lowsley), the House of Lords was confronted with the question of how ‘action... brought upon any judgment’ should be defined for the purposes of the UK Act. Lord Lloyd of Berwick (albeit with some hesitation but with whom the rest of the House agreed on this point) concluded, at 342, that, ‘Action’ in section 24(1) means a fresh action, and does not include proceedings by way of execution.’

47. This has subsequently been treated as the definitive statement of English law on this question: see, e.g., Ridgeway Motors (Isleworth) Ltd v ALTS Ltd [2005] EWCA Civ 92; [2005] 1 WLR 2871 (Ridgeway Motors).

48. As to the distinction between fresh proceedings on a judgment and the enforcement of a judgment, his Lordship referred in Lowsley to the earlier authority of Berliner Industriebank Aktiengesellschaft v Jost [1971] 1 QB 278, in which Brandon J had stated, at 293:

‘In my view the word ‘enforceable’ in section 2(4) of the Limitation Act 1939... means ‘enforceable by action on the judgment’ and not ‘enforceable by execution on the judgment’ ... This distinction between the right to sue on a judgment (which is a substantive right) and the right to issue execution under it (which is a procedural right or remedy) has always been recognised in the law of limitation...’

49. His Honour then referred to WT Lamb & Sons v Rider [1948] 2 KB 331 (WT Lamb & Sons), where Scott LJ stated, at 336, that the legislation had retained reference to the old common law rule that, ‘the law presumed a judgment to have been satisfied when a year and a day had elapsed without execution being issued upon it; and at common law the only remedy in such a case (in personal actions) was an action of debt on the judgment...’.

50. In Lowsley, Lord Lloyd of Berwick, at 335-339, traced the origins of this regime to the 1285 Statute of Westminster II (13 Edw 1, c 24). Under the Statute of Westminster II, a judgment had the effect of binding one half of the judgment debtor’s freehold lands as a charge. The judgment would be executed by a writ of elegit, whereby a judgment creditor was put in possession of half the rent or profits of the land. However, so as to not be overly oppressive, a judgment was presumed to have been satisfied a year and a day after it had been entered. After that period of time, the judgment creditor could apply to ‘revive’ the judgment by way of a writ of scire facias. Thus, the writ of elegit was a writ of execution of judgment, and the writ of scire facias was an action brought upon the judgment.

51. As Lord Lloyd of Berwick explained, this largely remained the position until the year and a day rule was abolished by s 128 of the Common Law Procedure Act 1852 (UK) (15 & 16 Vict c 76), and replaced by a six-year time limit to seek execution of a judgment. Thereafter, revival was still available under s 129 but it was by writ of reviver or, in simple cases, suggestion on the roll, rather than scire facias. Under s 129, revival was also available in cases of a change of parties, usually by death. This was again amended after the Supreme Court of Judicature (1873) Amendment Act 1875 (UK) (38 & 39 Vict c 77), Schedule 1 to which created Rules of the High Court of Justice and the Court of Appeal. Order 42 rr 18-19 of those Rules provided, respectively, that execution may issue at any time within six years of judgment being entered, and that thereafter or if the parties have changed, the judgment creditor could apply to the Court for leave to issue execution so long as revival was sought fewer than 20 years from when judgment was entered.

52. Nearly three-quarters of a century later, Scott LJ in WT Lamb & Sons held, at 338, that despite the explicit reference to revival being omitted in the Limitation Act 1939, the substantive right to sue and obtain a judgment was not extinguished.

53. WT Lamb & Sons was applied in the National Court in Australia & New Zealand Banking Group (PNG) Ltd v Ian Thomas Short [1986] PNGLR 57 (ANZ Bank v Short), where McDermott AJ held that, in relation to the former Statutes of Frauds and of Limitations Act, enforcement measures were not subject to limitation periods.

54. In Lowsley, Lord Lloyd of Berwick, at 339-342, disagreed with the conclusion reached by Scott LJ in WT Lamb & Sons, yet refrained from overruling it, because of how frequently it had been cited and, crucially, because the Limitation Amendment Act 1980 had been plainly influenced by an understanding that the law was as described by Scott LJ, which had been picked up by the Law Reform Committee’s 1977 Report on the Limitation of Actions. Despite describing it as a “parliamentary error”, Lord Lloyd of Berwick concluded, at 342, that “action” refers to a fresh action, not an enforcement action.

55. ANZ Bank v Short is a local authority which has stood for over 30 years upon the correctness of which it may reasonably be presumed that the commercial and wider community have acted. Further, the inference is inescapable from the symmetry of language that, in enacting s 16(5), Parliament has proceeded upon the same assumption as did the United Kingdom Parliament when enacting that country’s Limitation Act 1980. In these circumstances and for like reasons to those given by Lord Lloyd of Berwick in Lowsley, I consider that enforcement proceedings are not ‘action upon a judgment’.

......

59. For these reasons, s 16(5) does not apply to enforcement or execution measures. In the absence of any statutory limit on the period of time in which a judgment creditor must enforce a judgment debt, there is no local time limit on the taking of enforcement measures. In relation to a claim against the State, the enforcement measures are those prescribed in s 14 of the Claims by and Against the State Act.”

68. I note that Altas appears to be the only Supreme Court decision that clarifies or defines s. 16(5) of the FLA. I also acknowledge His Honour McDermott AJ’s decision in the National Court in Australia & New Zealand Banking Group (PNG) Ltd v Ian Thomas Short [1986] PNGLR 57 which, although was made based on the now repealed Statutes and Frauds and Limitations Act Chapter No. 300, is one that is on point and which is still good law after 35 years, as was acknowledged by this Court in Atlas with detailed findings and clarity.

69. I concur with and adopt the interpretation of s. 16(5) in Atlas herein. Section 16(5) applies to an applicant who wishes to commence fresh or separate action to assert his or her right over or upon a valid and enforceable judgment. The action must be commenced within 12 years after the pronouncement or date of the judgment. Section 16(5), as stated in Altas to which I concur, does not apply to enforcement or execution measures. The time limitation period of 12 years set under s. 16(5) or provisions under the FLA generally, do not apply to enforcement proceedings. The processes for enforcement or execution, in relation to a judgment, are readily made available under Order 13 of the National Court Rules. I note here that whilst the limitations under the FLA do not apply, a writ of execution to enforce a judgment may not be issued without leave of the Court in certain circumstances, including where 10 years or more have elapsed since the date of taking effect of the judgment: Order 13 Rule 18.

70. In conclusion, I would find that the trial Judge erred in his interpretation and application of s. 16(5) of the FLA and dismiss those parts of His Honour’s findings accordingly.

CAUSE OF ACTION - OS 462 of 2016

71. Given the clarity re interpretation of s. 16(5), I ask myself this, “Was OS 462 of 2016 an action that was commenced as of right on a judgment or order of the Court? Or would it be regarded as an enforcement proceeding?”

72. I refer to the originating summons. The appellant sought primary relief followed by consequential relief. A total of 14 items were pleaded as relief as set out above herein. I note that I have already given my views and findings on these relief.

73. In summary, I observed and found relief 1 as the main relief of the entire claim. I also found relief 2 to 5 plus the rest as consequential relief.

74. The Settlement Agreement from the divorce proceeding was signed on 4 December 2002. A day later, it was sanctioned or converted into a legally binding judgment or court order, on 5 December 2002. And as it was, the appellant had asserted her right over the said judgment when she filed OS 462 of 2016. In my view and pursuant to s. 16(5) of the FLA, the appellant had exercised her right of action upon her earlier judgment. OS 462 of 2016, in my view, was an action that was commenced, not for enforcement, but rather, based upon a judgment which was the Settlement Agreement or the court order of 5 December 2002. The appellant, it seems and contrary to the submissions that have been made before this Court, had intended to sue on and perhaps also or consequently extend her right of action over the judgment for a further 12 years in OS 462 of 2016.

75. In summary, my view is that OS 462 of 2016 is an action that was brought upon a judgment. OS 462 of 2016 was commenced as a separate proceeding premised on seeking declaratory order to firstly validate the Settlement Agreement or judgment followed by consequential orders. As such, I would also find it subject to the 12-year time limitation imposed by s. 16(5) of the FLA.

WHETHER ACTION WAS TIME-BARRED

76. Following on from the above, the next query is whether the appellant’s action was filed within the 12-year time limitation period imposed by s. 16(5) of the FLA.

77. In my view, OS 462 of 2016 was filed outside of the limitation period. I note that s. 16(5) of the FLA does not use or contain the term “accrued” but rather “enforceable” therein which, in my view, is significant for purposes of computing the imposed time limitation period of 12 years. The limitation requirement under s. 16(5) appears premised on when an order or judgment was or ‘became enforceable’. But fundamentally, clarity, in my view, may be sought from Brandon J’s ruling in Industriebank Aktiengesellschaft v Jost (supra). His Honour defines or distinguishes the term ‘enforceability’ under the then UK Limitation Act 1939 (now repealed) when he stated:

“In my view the word ‘enforceable’ in section 2(4) of the Limitation Act 1939... means ‘enforceable by action on the judgment’ and not ‘enforceable by execution on the judgment’ ... This distinction between the right to sue on a judgment (which is a substantive right) and the right to issue execution under it (which is a procedural right or remedy) has always been recognised in the law of limitation...”

78. So, in the present matter, the appellant acquired her right to the judgment that was made in the divorce proceeding on the date when the judgment was pronounced by the National Court on 5 December 2002. Her right to commence an action upon the said judgment would have or would accrue, from that date, that is, 5 December 2002. And following the time limitation stipulated under s. 16(5) of the FLA, she had 12 years from 5 December 2002, to commence an action upon the said judgment. She filed OS 462 of 2016 on 29 July 2016, which was more than 1 year after the 12-year time limitation period stipulated under s. 16(5) of the FLA. We have heard arguments on this point put forward in the submissions of the parties, that is, whether time should accrue in 2002 as per clause 3.1(a) or in 2008 as per clause 3.1(b) of the Settlement Agreement. The said clause essentially requires the first respondent to settle all costs that are associated to the Property before transferring the Property over to the appellant within 30 days from 5 December 2002. In my view, having regard to my findings above, these arguments or considerations are irrelevant and do not apply.

79. I would therefore find the appellant’s action in OS 462 of 2016 time-barred pursuant s. 16(5) of the FLA.

ALTERNATIVE FINDING - SPECIALTY

80. The appellant also appeals against the finding of the trial Judge where he found that the Settlement Agreement could also be regarded as a specialty and thus time barred under s. 16(3) of the FLA. The appellant’s argument against the finding is on the basis that her claim was premised in equity and that the relief sought were all equitable and were protected by s. 18 of the FLA.

81. I have addressed and rejected the said argument by the appellant above. I have also found that the trial Judge did not err in his primary finding which was that the Settlement Agreement was a judgment or court order. I also note this. The finding by the trial Judge that the Settlement Agreement may be regarded as a specialty was made in the alternative, that is, on the basis or in the event he was wrong in his primary finding.

82. In view of my findings on the application of s. 16(5) to OS 462 of 2016 and in upholding the trial Judge’s finding that the Settlement Agreement was a judgment of the court, the alternative consideration re specialty does not arise that would require a determination. As such, I would dismiss this alternative finding by the trial Judge.

SUMMARY

83. Given the above, it is my view that this appeal and the grounds pleaded therein should fail. I would partly uphold the decision of the trial Judge where he found the primary relief as non-equitable and not falling under s. 18 of the FLA. I also find that the trial Judge was correct to apply s. 16(5) to the appellant’s case. However, I differ with His Honour’s interpretation and reasonings given in regard to the application of s. 16(5) of the FLA and concur with Atlas on the same. In so doing, I find that the appellant had asserted her right to sue upon the judgment or the Settlement Agreement of 5 December 2002 when she commenced proceeding OS 462 of 2016. However, having made this determination, I further find that OS 462 of 2016 was filed outside of the limitation period of 12 years under s. 16(5) of the FLA. I dismiss the trial Judge’s alternative finding that the Settlement Agreement may also be regarded as a specialty as I agree with his primary finding that the Settlement Agreement was a judgment of the Court. I see no reason why costs of the appeal should not follow the event.

OBSERVATIONS

84. I would make the following observations. Firstly, that appellant’s enforcement rights may remain intact in regard to the judgment or the court order of 5 December 2002. As held in Atlas to which I concur, there is no time-limitation set for enforcement or execution of a judgment or a court order, subject to leave requirements contained in the National Court Rules. I note that enforcement or execution processes are part and parcel of the administrative processes that are provided under the National Court Rules. Secondly, and as found the trial judge, the appellant did not exercise her equitable interests in OS 462 of 2016.

85. Finally, this is one such case where our decision herein will not resolve the dispute that the parties have which they will undoubtedly continue to face. One of the orders made when we reserved for ruling, was to encourage the parties to settle. I would continue to encourage the parties to exhaust that process. Court processes are a costly exercise, and the parties need not look elsewhere to understand this. Litigation should be avoided at all costs and always remain as the last option to take by aggrieved parties.

86. BERRIGAN J: I respectfully agree with the orders proposed by Kandakasi DCJ and Anis J for the reasons outlined in their summaries, namely that the appellant’s claim was in effect an action to enforce the judgment and orders of the National Court, and was not an action based solely on equity. It was thus time barred pursuant to s 16(5) of the Fraud and Limitations Act. I also agree that the issue of specialty did not arise.

DECISION AND ORDERS OF THE COURT:

(1) The appeal is dismissed in its entirety.

(2) The decision and judgment of the National Court in OS 426 of 2016 that, that proceeding did not solely seek equitable reliefs but an action upon judgment, is affirmed.

(3) The finding and decision on the alternative finding of specialty did not arise, its consideration was unnecessary and is therefore struck out.

(4) The appellant shall pay the respondents’ costs of the appeal on a party/party basis which may be taxed if not agreed.

________________________________________________________________
B.S. Lai Lawyers: Lawyer for the Appellant
Fiocco & Nutley Lawyers: Lawyer for the First and Second Respondents