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Bangkok v Sena [2007] PGNC 65; N3225 (21 August 2007)

N3225

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 706 OF 2005

BETWEEN:

JOHN BANGKOK
Plaintiff

AND:

REY S. SENA
Defendant

Lae: Manuhu, J
2007: 16 & 21 August

RULING

REAL PROPERTY – Title to property – "Joint tenants" – Legal interest – Equitable Interest – Lack of contribution to purchase and develop.

Cases cited.

Papua New Guinea cases
Nil

Overseas Cases
Bull v Bull [1955] 1 QB 234.
Wright v Gibbons [1949] HCA 3; (1949) 78 CLR 313

Counsel:

D. Poka, for the Plaintiff.
K. Aisi, for the Defendant.

21 August, 2007

1. MANUHU, J. The Plaintiff seeks certain declarations of interests in property, namely, section 35 Lot 2 Parer Street, Lae, Morobe Province. The property was transferred to the Plaintiff and Defendant as "joint tenants" on 8 September 1999. Legally, against the world at large, the parties are co-owners of the property. No distinction can be drawn between the interest of the Plaintiff and the Defendant. See Wright v Gibbons [1949] HCA 3; (1949) 78 CLR 313. Consequently, any transaction or dealing with a third party concerning the property must have the consent and authority of both co-owners. Without such consent and authority, and in the absence of ratification, a transaction by a co-owner would be unlawful.

2. This proceeding is, however, founded on the law of equity. The Plaintiff seeks a declaration that he is the sole owner of the property because, and it is undisputed, the Defendant did not contribute to the purchase and the subsequent improvement of the property. The property was sold for K65,000.00. The Plaintiff provided the purchase price to acquire the property. The Defendant did not contribute any cash toward the purchase price. The Plaintiff then obtained a loan from Maybank (PNG) Ltd which has a current caveat over the property and erected units on the property. The property is now known as Makati Estate. The Defendant did not contribute toward this improvement.

3. A joint tenancy is a state of concurrent ownership. The four "unities" inherent in the concept of joint tenancy are time (the right was acquired at the same time), title (acquisition by same act or instrument), interest (same interest was acquired) and possession (each is entitled to possession of the whole property).

4. On the facts, the parties are not joint tenants of the property because "the unity is not present": JA McKenzie and MA Philips in A Practical Approach to Land Law at page 216. In equity, therefore, the Plaintiff and the Defendant do not have equal rights over the property. In equity, the Defendant, who has not contributed to the acquisition and improvement, cannot assert equality of rights with the Plaintiff over the property. See Bull v Bull [1955] 1 QB 234. This was the position of the Defendant at the time of acquisition of the property and at all subsequent times when the Plaintiff dealt with the property.

5. Accordingly, the Court grants the relief sought under paragraph 2 and 4 of the originating summons. The Defendants cross-claim is dismissed. Cost is award to the Plaintiff.

Orders accordingly.

______________________________________

Pryke & Janson: Lawyer for the Plaintiff
Steeles Lawyers: Lawyer for the Defendant