Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Wagun v Pilembo [2008] PGNC 139; N3487 (18 September 2008)

N3487

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 197 OF 2008

BETWEEN

PAUL WAGUN-PUBLIC CURATOR OF
PAPUA NEW GUINEA
Plaintiff

AND

PETER PILEMBO
Defendant

Mount Hagen: Makail, AJ
2008: 18 September
: 20 June

INTERLOCUTORY RULING

PRACTICE & PROCEDURE - application to set aside interim injunction - whether serious or triable questions raised - dispute over ownership of property of deceased - dispute as to whether there is a valid "will" - whether balance of convenience favour the continuation of the injunction - whether there is imminent or real threat by defendant to dispose off property as opposed to payment of debts and expenses of deceased - whether damages an alternative adequate remedy - undertaking as to damages - a pre condition for hearing of application - National Court Rules - Order 14, rule 10.

WILLS, PROBATE & ADMINISTRATION - deceased dying interstate - whether there is a valid "will" - definition of and features of a "will" discussed - a statutory declaration is not a "will" - onus on party to prove existence of valid "will" - whether public curator has power or authority to take possession of and deal with property - including power to request disclosure of information prior to grant of letters of administration - circumstances by which public curator may deal with property on intestacy prior to grant of letters of administration discussed - Public Curators Act 1951 - sections 10,13,14,15,16&40 - Wills, Probate & Administration Act Ch 291 - sections 13,14,38&44 - National Court Rules - Order 19, rules 1-5 & 7-11.

Cases cited:

The Public Curator of Papua New Guinea -v- Rei Reinou & Ors [1978] PNGLR 253
Lindsay Inabi -v- Fly River Provincial Government & Ors (2001) N2142
Lepanding Singut -v- Kelly Kinamun & 5 Ors (2003) N2499
Rex Paki -v- Adam & Wendy Koldop & Anor: OS No 304 of 2005 (Unnumbered & Unreported Judgment of 29 July 2008)
East Arowe Timbers Resources Limited & Ors -v- Cakara Alam (PNG) Limited & 2 Ors (2008) N 3270

Legislations Cited:

Public Curators Act Ch 81
Wills, Probate & Administration Act Ch 291
Claims By & Against the State Act 1996
National Court Rules

Counsel:

Mr R. Otto, for the Plaintiff
Mr J. Tonge, for the Defendant

18 September, 2008.

1. MAKAIL AJ: In this case, the Plaintiff and the Defendant are in dispute over the estate of the deceased, one Pilembo Kunjil who died intestate on 13 January 2006. The deceased is from Ialibu in the Southern Highlands Province and married to 3 wives. The third wife is Betty Pilembo and comes from Tambul in the Western Highlands Province. The Defendant is one of the sons of the deceased from the first wife. Prior to his death, the deceased was a businessman. He owned 2 residential properties, 3 dump trucks and 1 utility.
The motor vehicles are:

1. Hino Registration No AFU - 928 Orange in colour;

2. Hino Registration No HAG - 651 White in colour;

3. Hino Registration No HAG - 498 White in colour; and

4. Toyota Registration No HAG - 809 White in colour.

2. Three of the Hino dump trucks were leased to various companies to bring in money for the deceased’s business. It is not known if the two residential properties are on lease but what is known is that after the deceased died, the Defendant took possession of these motor vehicles. Recently, they were leased to a company called Leblank to carry gravels from Mt Hagen to Digicel tower sites in the Southern Highlands Province.

3. The Plaintiff claims to represent the interest of the deceased and acting on the request of Betty, he seeks to repossess these motor vehicles from the Defendant. Attempts to get the Defendant to deliver these motor vehicles including their registration documents failed and so on 15 April 2008, the Plaintiff instituted this court proceeding to seek the following orders:

1. that the Defendant disclose details of the company, the share holding, particulars of company assets and any other business interest or personal effects of the deceased;

2. that the Defendant pay a penalty fee of K 400.00 for failure to comply with a request for disclosure;

3. for the preservation of these motor vehicles; and

4. that the Defendant deliver up possession of all original registration documents for these motor vehicles.

4. On 16 April 2008, the Plaintiff applied and obtained an ex parte Interim Injunction before this Court to preserve the motor vehicles from being disposed off or used by the Defendant pursuant to Order 14, rule 10 of the National Court Rules. The Court also ordered the Defendant to deliver up to the Plaintiff the original registration documents for these motor vehicles.

5. Acting on the Interim Injunction, the police impounded one of the motor vehicles. It is one of the Hino trucks bearing Registration No AFU - 928, orange in colour and at the moment is placed at Kimininga Police Barracks whilst the second one is damaged and lying idle at the Defendant’s yard. The third one is yet to be impounded as well as the Toyota Landcruiser.

6. Whilst the police are yet to impound the other two motor vehicles, the Defendant is also yet to deliver up to the Plaintiff the original registration documents for these motor vehicles. The Defendant says that he has a "will" left behind by his deceased father. By this "will", he says that he has the blessing of his deceased father to administer the estate including taking possession of these motor vehicles and to carry on his deceased father’s business.

7. Accordingly, he says that he is not obliged to give to the Plaintiff the original registration documents for these motor vehicles. He seeks to have the Interim Injunction set aside. Of course, the Plaintiff opposes the application and wants the Interim Injunction extended until the full trial and determination of the dispute.

EVIDENCE

8. In support for the Plaintiff’s application to have the Interim Injunction continue and also for the Defendant to deliver up to the Plaintiff the original registration documents, the Plaintiff relies on the following Affidavits:

1. Affidavit of Betty Pilembo sworn on 14 April 2008 and filed on 15 April 2008;

2. Affidavit of Eric Ranpi sworn on 14 April 2008 and filed on 15 April 2008;

3. Affidavit of Richard Wali sworn and filed on 9 May 2008;

4. Affidavit in Response of Betty Pilembo sworn and filed on 20 May 2008; and

5. Affidavit of Roger Gillen Otto sworn and filed on 19 June 2008.

9. For the Defendant, he relies on his Affidavit sworn and filed on 8 May 2008.

APPLICATION FOR EXTENSION OF INTERIM INJUNCTION

10. In applications for Interim Injunctions, whether ex parte or inter parte and for extension of the ex parte Interim Injunctions, it is required that there must be first and foremost a serious question(s) to be tried in an action or proceeding.

11. This means that the question(s) raised must not be a speculative one but real in a sense that it will succeed at the end of the action or proceeding. Secondly, the balance of convenience favours the grant or continuation of the ex parte Interim Injunction and lastly whether damages would be an adequate alternative remedy. There is a further consideration I add and that is the Undertaking as to Damages, if one is given by the Plaintiff.

12. And so I apply these basic but fundamental considerations or factors to the present case and of course also taking into account the submissions of counsel in my deliberation of this application.

Whether serious questions raised.

13. The first question I ask is, is there a serious question(s) raised in this proceeding?

14. In respect of this first consideration, I note that first the Plaintiff argues that as the deceased died interstate and as the Public Curator, he is empowered under section 14 of the Public Curator 1951 (herein the "PC Act") and section 44 of the Wills, Probate & Administration Act Ch 291 (herein the "WPA Act") to take possession of the property of the deceased and deal with them and this includes the motor vehicles prior to the grant of letters of administration of the estate of the deceased. On the other hand, the Defendant argues that his deceased father has left behind a "will" which has appointed him to administer the estate including the taking possession of these motor vehicles. But the Plaintiff says that the deceased died without a "will" or interstate and even if there is one, it is not a valid one.

15. In my view, the arguments of either side present the following issues for determination:

1. Whether there is a valid "will" of the deceased; and

2. If there is none, is the Plaintiff as the Public Curator empowered to take possession of the property of the deceased and deal with them prior to grant of letters of administration?

16. From these two issues, can I say that they are serious or triable issues that would require a full trial to determine them? To answer this question, I need to first determine if there is a valid "will" of the deceased and if I find that there is none, then secondly if the Plaintiff is entitled to take possession and deal with the property of the deceased prior to the grant of administration.

Is there a valid "will"?

17. I have perused the "will". It is contained in a Statutory Declaration purportedly signed by the deceased on 21 May 2003. It can be found in Annexure "B" of the Affidavit in Support of the Defendant filed on 8 May 2008. For the benefit of all, I set out the relevant parts below:

"I (A) Pilambo Kunjil of Kumbiyawe village, Ialibu, Southern Highlands Province

Do solemnly and sincerely declare that (b) that I have a couple of vehicles and properties in Mount Hagen town and also in the village. Several attempts were made by my enemies to kill me for reasons only known to them.

I have a lot of family and many children and in any event I may not live to see another day. I then choose Peter Pilambo my elder son to carry on with what I have and continue to support my family. I leave all my business in his hands and declare that he is a partner to what we have now.

I now fully declare that my brothers sons and my immediate family not to share or fight over my business.

My son Peter Pilambo shall have full control over all vehicles and properties and he shall continue to run the business, for he knows what to do. Other things that he needs to do and know have been disclosed to him verbally.

I Regina Pepna and fluent in the English and the Pidgin language. I have read the within Statutory Declaration and translated to Mr Pilambo Kunjil in Pidgin Language and he understood the contain (sic) therein.

_____________________

Regina Pepna

Declared Mt Hagen (c)PILEMBO

The 21st day of (d) (Signed)

May 2003(e)". (Underlining is mine).

18. The question is, is this a valid "will"? Mr Tonge of the counsel for the Defendant did not refer me to the relevant law and any case authorities to support his submission that it is a "will". Likewise, Mr Otto of counsel for the Plaintiff did not refer me to the relevant law and any case authorities to support his contention that the Statutory Declaration is not a "will".

19. I also remember asking both counsel during the hearing if indeed there is a "will" and if so, if the Defendant had applied for letters of probate. Letters of probate are granted by the National Court under Order 19, rules 1-5 & 7-12 of the National Court Rules and section 38 of the WPA Act. Section 38 states that, "The National Court has jurisdiction to grant probate of the will or administration of the estate of a deceased person leaving property within the country".

20. Both counsel were unable to agree that there is a "will" and it also seems to me that none of them understood or knew the importance of applying for letters of probate if there is in fact a "will" to appoint the Defendant as the executor of the deceased’s estate. Furthermore, none of them seem to understand the importance of applying for letters of administration if there is in fact no "will". See again section 38 of the WPA Act.

21. Thus, it appears to me that the Defendant is under a misapprehension that there is no requirement or need for him to apply for letters of probate as the "will" that his deceased father has left behind is sufficient, in that it has appointed him as executor of the estate. I think this may be the reason for the confusion which has led the Plaintiff to issue this proceeding against the Defendant. This confusion has been compounded by the Plaintiff’s Highlands Regional office Manager, Mr Eric Ranpi writing a letter to his lawyers dated 18 June 2008 which is in evidence before me in Annexure "B" of the Affidavit of Roger Otto sworn and filed on 19 June 2008 stating after noting the Court’s prior concerns and directions to strictly comply with the provisions of the WPA Act that:

"With all fairness and honesty I can testify that I have acted within the confines of the Powers vested in me by Section 14 of the Public Curators Act and Section 44 of the Wills, Probate & Administration Act. With regards to an Interstate Estate I do not need a Court Order or Letter of Administration (LA) to realize the entire estate as the initial vesting is with the Public Curator. Whilst realizing the entire estate I can also apply for Letter of Administration (LA) before facilitating the distribution process". (Underlining is mine).

22. It is no wonder in the same letter, Mr Ranpi says "With that I reiterate that insofar as the Public Curator’s position is concerned, there is no Will for the deceased estate. The Defendant has not cooperated with our office and has placed us in a very difficult situation. Therefore you were instructed to instituted the proceedings to, amongst others, detain the trucks. Whilst the trucks are being detained now, the Public Curator can go ahead to issue the Letter of Administration which will be done anytime".

23. Whilst what Mr Ranpi says may seem to be correct to the extent that the Public Curator is vested with power or authority to take possession of and deal with the property of a deceased, I do not agree with him that the Public Curator "whilst realizing the entire estate" can apply for letters of administration "before facilitating the distribution process". I have two reasons for saying so which I will discuss in more detail when I consider the second issue on the power or authority of the Public Curator to take possession of and deal with the property of a deceased dying interstate prior to the grant of letters of administration.

24. Having made those brief observations, I return to answer the question; is there a valid "will"? First, to answer this question, I think a definition of a "will" is relevant and necessary to help us settle this question. According to the Concise Oxford Dictionary, University Press 5th ed (1964) at page 1494, the plain English definition of a "will" is "directions written in legal form for disposition to be made of person’s property and minor children after his death".

25. The legal definition of a "will" under section 1 of the WPA Act is a "will includes -

(a) a testament; and

(b) a codicil; and

(c) an appointment by will or by writing in the nature of a will in exercise of a power; and

(d) a disposition by will; and

(e) a testament or devise of the custody and tuition of a child; and

(f) any other testamentary disposition".

26. With those definitions in mind, I now turn to some case authorities to help settle this issue. In my research, I have come across the case of The Public Curator of Papua New Guinea -v- Rei Reinou & Ors [1978] PNGLR 253. That was a case where the Plaintiff sought a declaration of his rights and entitlements based on a document purporting to be a will, the original formally typed and executed as a "will" and dated 20 January 1975 and was extensively altered in hand writting without the alterations properly being witnessed. The effect of the hand written alterations and amendments was that they revoked and redistributed the original dispositions.

27. The issue in that case was; was the "will" of the deceased the typed document or the document that was amended in hand writing? The Court held that regardless of the alterations on the document, the intention of the deceased was clear and that was first the alterations revoked previous "wills" and was his last "will" and secondly, it provided for the payment of debts and expenses for the division of the remainder of the estate in a fashion different to the original. The Court further held that it was open for the Public Curator to apply for grant of probate of the document originally dated 20 January 1975 but subsequently altered on 01 November 1975.

28. Based on Rei Reinou’s case (supra), I am of the view that the question of whether or not the Statutory Declaration is a valid "will" is not a difficult one which would require a full trial to determine it. I say this because, in Rei Reinou’s case, (supra) it discusses to some extent the features of a "will". For example, a "will" must first have a provision for the disposition of the estate and secondly it must have a provision revoking the previous "wills". Finally, it must have a provision for the payment of debts and expenses.

29. In the present case, if one considers the Statutory Declaration in light of the Rei Reinou’s case (supra), the first question is, does the Statutory Declaration have a provision for the disposition of the estate and secondly does it have a provision revoking the previous wills? Finally, does it have a provision for the payment of debts and expenses?

30. I am of the view that the Statutory Declaration lacks or does not have these three features although it does state that the Defendant is to carry on with what the deceased had left behind and to continue to support his family. Further, there is a provision for the disposition of the estate but it does not provide how this will be done. Furthermore, it does not have a provision revoking any previous "wills". Also, it does not have a provision for the payment of debts and expenses.

31. In my view, these omissions in the Statutory Declaration are fundamental omissions and render it invalid. It is an invalid "will".

32. Apart from these reasons, I consider that there are other reasons that make the "will" of the deceased invalid. These reasons are provided under sections 14 and 15 of the WPA Act. I quote these two provisions in full to emphasis their importance and also to clarify the confusion that is in the minds of the parties on the issue of what is a "will".

"13. Execution of will.

(1) Subject to this Part, a will is not valid unless it is written and executed in the following manner: -

(a) subject to Subsection (3), it is signed at the foot or end by the testator or by some other person in his presence and by his direction;

(b) subject to Subsection (3), the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time;

(c) the witnesses attest and subscribe the will in the presence of the testator.

(2) A form of attestation is not necessary.

(3) Notwithstanding Subsection (1)(a) and (b), a will may be signed or acknowledged in the presence of, and may be attested and subscribed by, an authorized witness.

(4) A will -

(a) made by a person who by reason of infirmity of body or illiteracy or otherwise is unable to execute it without assistance; or

(b) signed by a person other than the testator, is not valid unless there is contained in, or annexed to, the will a certificate by the witness or witnesses, or it is otherwise proved, that at the time of the making of the will -

(c) the provisions of the will were read to the testator by or in the presence and hearing of the witness or witnesses; and

(d) the testator acknowledged the will, as so read, to be his intended last will.

(5) A will made by a person in a language other than a language that he habitually uses is not valid unless there is in, or annexed to, the will a certificate by an authorized witness, or it is otherwise proved, that at the time of the making of the will -

(a) the provisions of the will were properly translated, or were apparently properly translated, into a language understood, or apparently understood, by the testator by or in the presence of the authorized witness; and

(b) the testator acknowledged the will, as so translated, to be his intended last will".

33. What I make out of section 13 after reading it is that, a "will" must have the following features:

1. It must be in writing;

2. It must be executed (signed) at the foot or at the end of it by either;

(a) the testator; or

(b) by some other person in the testator’s presence or at his direction; or

(c) the signature of the testator is made or acknowledged by the testator in the presence of two or more witnesses at that time; or

(d) the witnesses attest and subscribe the will in the presence of the testator.

3. It maybe signed or acknowledged in the presence of and maybe attested and subscribed by an authorized witness.

4. It may be made by someone who assisted the testator because of the testator’s infirmity or illiteracy of the body or otherwise is unable to execute it to sign it or signed by a person other than the testator,

5. It must contain or have annexed to it a certificate of witness or witnesses, or it is otherwise proved, that at the time of the making of the will -

(a) the provisions of the will were read to the testator by or in the presence and hearing of the witness or witnesses; and

(b) the testator acknowledged the will, as so read, to be his intended last will.

6. It must be made by the testator in a language that he habitually uses.
   
7. If it is made in the language that the testator does not habitually use, then there must be in it or annexed to it, a certificate by an authorized witness, or it is otherwise proved, that at the time of the making of the will;
   

(a) the provisions of the will were properly translated, or were apparently properly translated, into a language understood, or apparently understood, by the testator by or in the presence of the authorized witness; and

(b) the testator acknowledged the will, as so translated, to be his intended last will.

34. From what I have discussed above, section 13 presents three types of situations where an executed "will" is valid. The first is in a situation which section 13(1)-(3) describes and the second one is described in section 13(4)(a)-(d). The third situation is where section 13(5)(a)-(b) describes.

35. I can see that the first situation is where the testator is able to sign his "will" or if he is unable, he instructs some other person to sign for him. The second situation is where due to infirmity of the body or illiteracy, some other person assists the testator to sign the "will" or it is signed by some other person.

36. The third situation is where the "will" is made in the language that the testator does not habitually use. This is where there must be in it or annexed to it, a certificate by an authorized witness, or it is otherwise proved, that at the time of the making of the "will" first the provisions of the "will" were properly translated, or were apparently properly translated, into a language understood, or apparently understood, by the testator by or in the presence of the authorized witness. Secondly, that the testator acknowledges the "will", as so translated, to be his intended last "will".

37. In the present case, there is no evidence that the deceased had an infirmity of the body, thus I find that he was in good health in body and mind when he signed the Statutory Declaration. I find also that he is not illiterate because he signed it. I also find the Statutory Declaration is written in English, a language which I find the deceased did not habitually use. That is why it contains an interpretation clause and signed by Regina Pepna.

38. I accept that the "will" in the Statutory Declaration is in writing thus, it complies with the first requirement of a "will" and that is it must be in writing, but notwithstanding that, the second and foremost requirement is that it must be signed by the deceased. Here, I find that the deceased signed it but even still, I find that it is lacking or defective because it does not say anywhere in it that it is intended to be the last "will" of the deceased or his last "will".

39. Further, there is nothing in it to say that Regina Pepna is an authorised witness to witness the signing of the will. Further still, I do not know the other person who witnessed the deceased sign the "will". I consider that if the Defendant claims that his deceased father left him a "will", then the onus is on him to bring appropriate evidence to establish that "will". I find that he has not done that and so I find that he has not established a case where there is a valid "will".

40. Then there is section 14 which provides as follows:

"14. Validity of signature to will.

(1) So far only as regards the position of the signature of the testator or of the person signing for him under Section 13, a will is valid within the meaning of this Division if the signature is so placed at, after, following, under, beside or opposite the end of the will that it is apparent on the face of the will that the testator intended to give effect by his signature to the writing signed as his will.

(2) A will referred to in Subsection (1) is not affected by the circumstances that -

(a) the signature does not follow, or is not immediately after, the foot or end of the will; or

(b) a blank space intervenes between the concluding word of the will and the signature; or

(c) the signature is placed among the words of the testimonium clause, or of the clause of attestation, or follows, is after or is under the clause of attestation, with or without a blank space intervening, or follows, or is after, under or beside the names, or one of the names, of the subscribing witnesses; or

(d) the signature is on a side or page or other portion of the paper or papers containing the will on which no clause, paragraph or disposing part of the will is written above the signature; or

(e) there appears to be sufficient space on or at the bottom of the preceding side or page, or other portion, of the same paper on which the will is written to contain the signature.

(3) Subsection (2) does not restrict the generality of Subsection (1), but a signature under this Division is not operative to give effect to a disposition or direction that -

(a) is underneath or follows it; or

(b) is inserted after the signature is made".

41. Under section 14, a "will" must have the following further features:

1. The signature of the testator or the person signing for him must be at, after, following, under, beside or at the end of the "will"; and

2. The signature of the testator or the person signing for him in the "will" must not be underneath or follow the "will" or must not be inserted after the signature is made.

42. In the present case, if one holds the Statutory Declaration up against the features of a "will" described in sections 13 and 14 of the WPA Act, it be said that the Statutory Declaration is not a "will". It is therefore in my opinion that the Statutory Declaration did not comply with these provisions, thus it is an invalid "will". In my view, this settles the issue of whether there is a valid "will".

43. But there is one more and final reason for me to say that the "will" before me is not a valid "will". I say this because it is contained in a Statutory Declaration. In my view, a Statutory Declaration is not a "will" because a Statutory Declaration is a mode or means by which evidence is brought or adduced before a Court of law. That is the sole purpose of a Statutory Declaration.

44. As I said in Rex Paki -v- Adam & Wendy Koldop & Anor: OS No 304 of 2005 (Unnumbered & Unreported Judgment of 29 July 2008) at page 16, a case where parties were in dispute over the ownership of a motor vehicle and where the First Defendants argued that the Second Defendant had sold it to them under a written agreement contained in a Statutory Declaration:

"In other words, the Statutory Declaration is not an agreement but is merely evidence showing that the Second Defendant agreed to transfer the title or ownership of the motor vehicle to Mr Koldop. Whether the Court should accept that there is such an agreement is a matter for the Court to decide.

I say this because generally there are three ways or modes by which evidence can be brought before the Court. They are by oral testimony or by Affidavits. Section 34 of the Evidence Act provides for evidence by Affidavits. In this case evidence of whether there is an agreement between the Second Defendant and Mr Koldop to the transfer title or ownership of the motor vehicle to Mr Koldop can be brought before the Court for its consideration either by oral testimony or Affidavit.

I consider that the third way or mode to adduce evidence to Court is by a Statutory Declaration under section 9 of the Oaths, Affirmation and Statutory Declaration Act 1962. Thus, it becomes the evidence of the Second Defendant that there is such an agreement between her and Mr Koldop that she agreed to transfer the title of her motor vehicle to Mr Koldop but it is not evidence of the agreement itself". (Underlining is mine).

45. And so, I consider that what has been happening and is still happening is that, people have been using Statutory Declarations to draw up agreements as in the case of Rex Paki (supra) and in the present case, a "will". To my mind, Statutory Declarations have been grossly abused by people. This kind of practice must be stopped, otherwise Statutory Declarations will loose their meaning and purpose under section 9 of the Oaths, Affirmation and Statutory Declarations Act 1962. For this reason, I find that the "will" contained in the Statutory Declaration is not a valid "will".

46. For all these reasons, it is therefore my opinion that whilst I am not required to decide whether the Statutory Declaration is a valid "will", at the same time, I am required to decide whether the issue or question raised is serious enough to warrant a full trial so that the Interim Injunction should be further extended. As far as I am concerned and for those reasons I have given above, the issue is not serious or triable to warrant a proper determination at the full trial.

47. To my mind, it is the parties and their legal counsel who have turned this issue of a valid "will" into a big issue simply because they have confused themselves and do not understand or know the law and processes of intestacy proceedings.

Does the Public Curator have power or authority to take possession and deal with the property of a deceased interstate prior to grant of administration?

48. As the issue of a valid "will" is now settled, this then leads me to the next issue and that is whether the Public Curator has power or authority to take possession of and deal with the property of a deceased who dies interstate prior to grant of letters of administration.

49. Section 14 of the PC Act states as follows:

"14. Taking possession of deceased estates.

(1) Where a person dies leaving property in the country and, as far as the Public Curator or a Public Curator's agent can ascertain -

(a) he left no will; or

(b) he left a will, but no executor was appointed in the will; or

(c) he left a will and an executor was appointed in the will, but the executor -

(i) is dead; or

(ii) is too far from the place where the property or any part of it is situated to be able to take care of it without delay; or

(iii) does not intend, or neglects, to act as executor,

the Public Curator, or a Public Curator's agent on his behalf, may immediately and without any order under this Division take possession of the property or any part of it.

(2) When the Public Curator or a Public Curator's agent has taken possession under Subsection (1) of the real estate of a deceased person, he may -

(a) take any steps and incur any expense that he thinks necessary for preserving it or anything in, on, or annexed to it; and

(b) collect and sell any product of it that would decrease in value by being kept, and incur any necessary expense in connection with the collection or sale.

(3) Where the Public Curator or a Public Curator's agent has taken possession under Subsection (1) of the personal estate of a deceased person, he may -

(a) sell or dispose of it, or any part of it, if it appears to him that it will be for the benefit of the estate of the deceased person that he should do so; and

(b) pay out of it, or of the proceeds of it -

(i) the funeral expenses of the deceased person; and

(ii) the expenses incurred in collecting, preserving, selling, or disposing of the personal estate; and

(iii) the expenses incurred under Subsection (2).

(4) Where a Public Curator's agent has taken any action under this section, he shall immediately give full particulars of the action to the Public Curator".

50. I am of the view that section 14 of the PC Act gives or vests in the Plaintiff as the Public Curator the power or authority to take possession of a deceased’s estate if the deceased dies leaving property in the country where first he leaves no "will" or secondly where he leaves a "will" but no executor appointed in the "will" or thirdly where he leaves a "will" and has appointed an executor but the executor is dead or too far away or does not intend or has neglected to act as executor.

51. But I consider that this power or authority is not absolute. It is qualified in that, first under section 14(2) of the PC Act where the Public Curator or his agent takes possession of the "real estate" of a deceased person, he may first take any steps and incur any expense that he thinks necessary for preserving it or anything in, on, or annexed to it and secondly collect and sell any product of it that would decrease in value by being kept, and incur any necessary expense in connection with the collection or sale. (Underlining is mine).

52. In other words, in my view, this power or authority is exercised by the Public Curator to preserve the property from being destroyed, perishing or decreasing in value. For example, if the deceased left behind a residential property which under a mortgage to a bank require immediate sale for otherwise, it would be repossessed by the bank because of non payment of the loan by the deceased. From the sale of the residential property, the Public Curator may keep the money to either settle the debts of the deceased or distribute to the beneficiaries of the deceased.

53. The second scenario where the Public Curator may exercise the power or authority to take possession of a deceased person’s estate is under section 14(3) of the PC Act. This is where after the Public Curator or his agent takes possession of the "personal estate" of a deceased person, he may first sell or dispose of it, or any part of it, if it appears to him that it will benefit the estate of the deceased person that he should do so. Secondly, he pays out of it or of the proceeds of it to meet the funeral expenses of the deceased person, the expenses incurred in collecting, preserving, selling, or disposing of the personal estate; and the expenses incurred to preserve the real estate. (Underlining is mine).

54. For example, if the deceased left behind bags of coffee which require immediate sale for otherwise, they will rot or perish. From the sale of the coffee, the Public Curator may keep the money to either settle the debts of the deceased or distribute to the beneficiaries of the deceased. The other good example which comes to mind is where the deceased left monies in his bank account or accounts and there is a need to pay for his funeral expenses upon his demise. In such a case, I consider that the Public Curator may collect these monies in the bank account or accounts of the deceased and pay the funeral expenses.

55. But to my mind, I do not think that the Public Curator may properly exercise his power or authority under section 14(3) of the PC Act if he is to collect these monies and pay for the children’s school fees. I say this because there is no mention of payment of such expenses under section 14(3) of the PC Act. And so, if he were to do that, in my view, he would be acting outside his power or authority under section 14(3) of the PC Act. But to my mind, there is a fall back position for the Public Curator which I will discuss shortly.

56. For now, it is my opinion that the power or authority vested in the Public Curator under section 14 of the PC Act is exercised by him or his agent for a temporary or interim period. It is not intended to cover the period of time it takes to realize and finalize the estate of a deceased. This power or authority is exercised by the Public Curator or his agent take address any emergencies or risks associated with the property of the deceased and also for the benefit of the beneficiaries of the deceased whilst awaiting the grant of letters of administration to either the Public Curator or some other person appointed by the National Court.

57. In this case, there is no dispute that the deceased died leaving property in Papua New Guinea. From the evidence of the Defendant, I can say that the deceased left these motor vehicles and two residential properties although I have no evidence of their location.

58. From the discussion of the considerations by which the Plaintiff may exercise his power or authority to take possession of the property of a deceased, I observe that section 14(2) and (3) of the PC Act refers to real estate and personal estate of the deceased respectively whilst subsection 1 of the same section refers to "where a person dies leaving property in the country.....". Is there a difference amongst the use of these phrases/words? I do not think so. I think they are used interchangeable but have the same meaning. That is, they mean the "estate" of a deceased person because Order 19, rule 1 of the National Court Rules defines an "estate" to "includes real and personal estate".

59. The view I take is fortified by section 1 of the PC Act which defines "personal estate" as:

"personal estate" includes -

(a) leasehold estates and other chattels real; and

(b) moneys; and

(c) shares of Government and other funds; and

(d) securities for moneys; and

(e) debts; and

(f) choses in action; and

(g) credit goods; and

(h) all other property,

and any share or interest in any such thing, but does not include any property that is real estate".

60. And "real estate" is defines as:

"real estate" includes -

(a) messuages, lands, rents and hereditaments of freehold or any other tenure, whether -

(i) corporeal; or

(ii) incorporeal; or

(iii) personal; and

(b) any undivided share of, and any estate, right, or interest (other than a chattel interest) in, any such messuages, lands, rents or hereditaments; and

(c) land included under a lease for 21 years or more".

61. Further, section 1 of the WPA Act seems to have the same definition for "personal estate" and "real estate". It states:

"personal estate means all property other than real estate" and "real estate means -

(a) messuages, lands or hereditaments of any tenure whether corporeal, incorporeal or personal; or

(b) any undivided share in any such messuages, lands or hereditaments; or

(c) an estate, right or interest (other than a chattel interest) in any such messuages, lands or hereditaments,

but does not include land held under a lease for a term of less than 21 years whether or not there is a right to renew the lease".

62. Thus, in my view, there is no difference in the use of these phrases/words. I find that the power or authority of the Public Curator under section 14 of the PC Act can be exercised only in the circumstances I have described above.

63. I say this because section 44 of the WPA Act seems to compliment section 14 of the PC Act. Section 44 of the WPA Act provides that the initial vesting of the property of a deceased is in the Public Curator. It states as follows:

"44. Initial vesting in Public Curator.

Until probate or administration is granted, the property of a deceased person vests in the Public Curator, in the same manner and to the same extent as formerly personal estate in England vested in the Ordinary".

64. I have not been able to find any past cases directly on section 14 of the PC Act and section 44 of the WPA Act but the closest I have found is the case of Lindsay Inabi -v- Fly River Provincial Government & Ors (2001) N2142 by Gavara Nanu J. In that case, the Plaintiff sued the Defendants to recover K145, 500.00 in unpaid rent for a property located in Daru in Western Province. The amount claimed was at a rate of K1, 500.00 per month and was for the period 07 May 1991 to the date of judgment of 08 June 2001.

65. The property was registered in late Tabua Inabi's name ('the deceased'), who died on 25 June 1991. The Plaintiff is the second eldest son of the deceased and he brought the claim, as the representative and the Administrator of the deceased and the deceased's estate. The Defendants denied the Plaintiff's claim and the First Defendant made a cross claim of K 196,280.60 against the Plaintiff.

66. How the dispute arose was that in about June 1982, the deceased took out a loan for K18,300.00, with the then Agricultural Bank ('the Bank" hereon), to purchase the property and the property was mortgaged to the bank as the security for the loan, which was guaranteed by the First Defendant. On 7 May 1991, the bank discharged the mortgage when the First Defendant satisfied its guarantee to the bank. Upon the discharge of the mortgage, the First Defendant leased the property to the Second Defendant from 7 May 1991 without the knowledge and consent of the Plaintiff, for a monthly rent of K1,500.00. The property was used by the Second Defendant as its stationery storage.

67. The Plaintiff found out and made numerous requests since 7 May 1991, for the Defendants to pay the monthly rent of K1, 500.00 to him for the use of the property, but the Defendants had ignored those requests. The Plaintiff assumed authority over the property after the deceased died. He had in his possession the valid owner's copy of the title to the property and the Department of Lands and Physical Planning had sent the Annual Lease Rental Notices to the Plaintiff for payment which he had done.

68. On 6 July 1999, the Plaintiff filed an amended Writ of Summons, claiming that, he had applied and was granted the Letters of Administration of the Estate of the deceased and produced a sealed copy of the Letters of Administration to the Court which showed that the grant was made on 5 July 1999. But the First Defendant argued that as it had paid to the bank under its guarantee of the deceased's loan K 58,810.00 inclusive of interests and penalties, the property belonged to it.

69. But the property was still under the deceased's name and the Plaintiff said, he will have the property transferred to his name some time in the future. All parties accepted that the Plaintiff had standing to issue the Writ of Summons based on the letter of administration, rent was charged at K 1,500.00 per month for the property, from the date of the original Writ of Summons of 21 May 1999 and that the First Defendant was entitled to claim K 58,810.00 from the Plaintiff, being the amount it paid to the bank under its guarantee for the loan.

70. What was his dispute was the rent for the period from 7 May 1991 to 21 May 1999 which the First Defendant had collected from the Second Defendant. In determining the question of who should receive the rent for that period, His Honour found that the deceased was the registered proprietor of the property and that meant that the property was part of the deceased's estate. In respect of the mortgage on the property, His Honour was of the view that since it was discharged, all rights and obligations under the mortgage were also discharged as at 7 May 1991.

71. Thus, the First Defendant's contention that it could exercise the rights of the mortgagee had no merits. According to His Honour, the relationship between the First Defendant and the deceased's estate at the time the mortgage was discharged was that of a creditor and the debtor. Therefore, the First Defendant as a creditor against the estate could only claim against the estate for K 58,810.00, but had no right to assume authority over the estate.

72. This is what His Honour said in passing in respect of section 44 of the WPA Act:

"The First Defendant had nonetheless assumed authority over the property when it leased it to the Second Defendant. A recourse open for the First Defendant to reclaim the money it paid to the bank under its loan guarantee was to submit its claim as a creditor to the Public Curator in whom the control of the property was initially vested...."

73. From this statement, I think what His Honour was intimating was that the administration of the estate of the deceased was vested in the Public Curator and the Public Curator is the right person to pay any debts of the deceased during that period where the Second Defendant was paying the rent to the First Defendant. But His Honour did not go further to say how and under what circumstances can the Public Curator exercise the power or authority once the property of a deceased is vested in him under section 44 of the WPA Act.

74. About two and a half years after the decision in Lindsay Inabi’s case (supra), the question of the power or authority of the Public Curator under section 44 of the WPA Act resurfaced and was once again briefly discussed in the case of Lepanding Singut -v- Kelly Kinamun & 5 Ors (2003) N2499 by Kandakasi J. In that case, in 1994, the Plaintiff (deceased) commenced this proceeding concerning a property located at Section 268 Allotment 43, Hohola, in the National Capital District. That property was a subject of a sale and or rental purchase.

75. The deceased claimed that the Second and Third Defendants breached a fiduciary duty owed to him by them and that was by a conspiracy to defraud him by the First Defendant. He therefore sought various orders including an account for profit allegedly made by the First, Second and Third Defendants from the sale and or purchase of the said property. He also sought a declaration that the First defendant is a constructive trustee, an order setting aside the relevant contract of sale and an order for damages.

76. The Court heard that almost 7 years later in the year 2001, the deceased passed away but the relatives of the deceased Plaintiff did notify the Court and the Defendants of his death. It was brought to the attention of the Court and the Defendants through the Public Curator when he (the Public Curator) was responding to an application by the Defendants to dismiss the proceeding for want of prosecution. Not only that, the Public Curator did not make his application for substitution of the deceased Plaintiff within the 3 months as required by Order 5, rule 10 of the National Court Rules. Also the Public Curator did not have any idea about the death of the deceased Plaintiff until the relatives of the deceased Plaintiff requested him on 30 July 2003 to apply to substitute the deceased Plaintiff.

77. Two of the three issues raised during the hearing of the application to dismiss the proceeding were:

1. Whether the Plaintiff’s cause of action had survived his death? and

2. If the cause of action survived then, was the Public Curator entitled to substitute the deceased Plaintiff?

78. His Honour found that the deceased Plaintiff died intestate but the causes of action based on fraud and breach of trust survived upon the death of the deceased Plaintiff. His Honour also held that the Public Curator had the capacity, a statutory right and power to apply for substitution of the deceased party under section 10 of the PC Act if the cause of action survives.

79. This is how His Honour reached this conclusion:

"The question then is, is the Public Curator the correct person or party to substitute the deceased? That is the subject of the second question. I therefore turn to that question now.

The Wills, Probate and Administration Act and the Public Curator Act govern the powers and functions of the Public Curator. Section 44 of the former provides for and vests in the Public Curator powers of administration in these terms:

"44. Initial vesting in Public Curator.

Until probate or administration is granted, the property of a deceased person vests in the Public Curator, in the same manner and to the same extent as formerly personal estate in England vested in the Ordinary."

There is no contest that this provision applies in cases where a person dies with a will and one dying without a will. Likewise, there is no contest that this is only a temporary measure pending the grant of probate or administration of the estate of a deceased person. Where a person dies without a will s. 10 of the later Act empowers the Public Curator to apply for grant of probate or administration......"

80. In that case, it appears to me that as the parties did not dispute the powers of the Public Curator in cases where a person dies leaving a "will" or where he dies without leaving a "will" pending the grant of probate or administration of the estate of a deceased person, His Honour accepted that section 44 of the WPA Act vests in the Public Curator the power or authority to administer estates of deceased persons. Where a person dies without a "will", section 10 of the PC Act empowers the Public Curator to apply for grant of probate or administration.

81. I do not think His Honour went on to again decide how and under what circumstances can the Public Curator exercise the power or authority under section 44 of the WPA Act prior to the grant of letters of administration. Nonetheless, what is clear is that "[U]ntil probate or administration is granted, the property of a deceased person vests in the Public Curator".

82. In the present case it is the Plaintiff’s case that he is exercising his power or authority under section 14 of the PC Act and section 44 of the WPA Act to take possession of and deal with the property of the deceased comprising of the motor vehicles and two residential properties. Whilst that may be so, I do not see any grounds set out above (section 14(2) & (3) of the PC Act) have been made out here.

83. I say this because there is simply no evidence before me that the motor vehicles and the residential properties will be destroyed, perished or depreciated in value to warrant the Plaintiff to exercise that power or authority under section 14(2)&(3) of the PC Act and section 44 of the WPA Act.

84. Further, whilst there is evidence in paragraphs 8-26 of the Affidavit of Betty Pilembo sworn on 14 April 2008 and filed on 15 April 2008 that Betty and her daughter have missed out on receiving monies from the business of the deceased after he died for their daily up keeping and maintenance including payment of school fees for the daughter, I find that first, Betty’s request for money to maintain herself and her daughter is not a consideration falling under section 14(2)&(3) of the PC Act.

85. I consider that the lack of or no financial maintenance of family members upon the demise of the head of a family unit like in this case, the deceased, Betty and her daughter is regrettably a direct and natural consequence of the deceased’s demise. It is something that Betty and her daughter must live with and fend for themselves until letters of administration is granted to the Plaintiff or some other person to properly administer the estate of the deceased where their interest or request for financial maintenance would then be taken into account. For these reasons, I find that this claim does not fall under any one of the considerations or grounds under section 14(2) or (3) of the PC Act.

86. Secondly, I am of the view that Betty’s claim that her daughter is attending school and needs school fees is not a consideration or ground under section 14(3) of the PC Act for the Plaintiff to exercise his power or authority over the property of the deceased until and unless he obtains letters of administration to administer the estate of the deceased.

87. For these reasons, I find that the second issue of power or authority of the Plaintiff to take possession of and deal with the property of the deceased dying interstate prior to grant of letters of administration is quite straight forward and can be resolved now rather than at the full trial. To my mind, the issue is not a serious one. It is a speculator which I am not prepared to allow going for full trial.

88. Having reached this conclusion on the second issue, I consider that there are other considerations or grounds by which the Plaintiff may take into account before exercising his power or authority to take possession of and deal with the property of a deceased prior to the grant of letters of administration. This is what I meant when I said earlier that there is a fall back position for the Public Curator in respect of his power or authority to take possession of and dealt with the property of a deceased prior to the grant of administration.

89. They can be found in section 15 of the PC Act which none of the counsel drew my attention to during the hearing. Section 15 states as follows:

"15. Powers pending grant.

(1) Where any person dies, and notwithstanding that some person other than the Public Curator is -

(a) appointed executor; or

(b) entitled to letters of administration,

the Public Curator may, if he thinks fit, until probate or letters of administration are granted -

(c) exercise with respect to the estate of the deceased person all such powers and authorities; and

(d) do all such acts and things,

as he could exercise or do if the deceased person had died intestate and the Public Curator had obtained an order under Section 10.

(2) The Public Curator shall not sell, lease, exchange, mortgage or partition any portion of the property (except for the sale of any of the personal estate that is of a perishable nature or that would decrease in value by being kept) unless the property is ordered to be sold by the National Court on the application of the Public Curator.

(3) Subject to Subsection (6), before the Public Curator first acts under this section in respect of an estate, he shall give notice, in writing or by telegram, to any person known to him as a person who (not being an infant or of unsound mind) would be entitled to obtain probate or letters of administration, informing him that he intends so to act unless the person proceeds to apply for probate or letters of administration immediately.

(4) If the person referred to in Subsection (3) -

(a) does not, within 21 days after the posting or other service of the notice or of the despatching of the telegram, as the case may be, give notice, in writing or by telegram, to the Public Curator that he intends to apply for probate or letters of administration; or

(b) gives notice in accordance with Paragraph (a) but fails to apply within 14 days after giving the notice for probate or letters of administration; or

(c) applies for probate or letters of administration and the application fails, then, unless the National Court otherwise orders, the Public Curator may proceed to exercise any of the powers and authorities given by this section.

(5) In the event of more persons than one being entitled to take out probate or letters of administration, it is sufficient for the purposes of this section if notice is given to one of the persons only.

(6) Where it is not actually known to the Public Curator that there is any person entitled to obtain probate or letters of administration, or in a case of emergency (of which the Public Curator is the sole judge), this section does not prevent the Public Curator from exercising the powers and authorities given by this section without giving notice in accordance with Subsection (3).

(7) Any expenses incurred by the Public Curator under this section are a first charge on the property of the deceased person.

(8) Any person who takes out probate or letters of administration of the estate of the deceased person after the Public Curator has taken any action under this section must pay any fees and expenses payable to, or incurred by, the Public Curator before he is entitled to a grant of probate or letters of administration". (Underlining is mine).

90. I consider that section 15(1)(c)&(d) of PC Act should be given a wide interpretation in respect of what would constitute the other considerations or grounds by which the Public Curator may take into account when taking possession of and dealing with the property of the deceased prior to grant of letters of administration. One consideration or ground which comes immediately to my mind is the need to pay school fees of the children of the deceased. It becomes more critical where the deceased dies at the beginning of a schooling year where it is common and also required in schools in the country for parents to pay their children’s school fees up front before they can go to school.

91. In my view therefore, where there is a need to pay for school fees for the children of a deceased, it can be considered as one of the considerations or grounds for the Public Curator to exercise his power or authority under section 15(1)(c)&(d) of the PC Act to deal with the property of the deceased prior to the grant of letters of administration. The Public Curator may take monies out of the bank account or accounts of the deceased and pay for the children’s school fees and there would be no questions raised because his actions would be treated in the same way as if he was granted letters of administration under section 10 of the PC Act.

92. Thus, the question is, is there evidence to show that there is a need to pay for the deceased children’s school fees in the present case? As far as I can see, apart from her claim that she withdrew her daughter from school because of no school fees, I find that there is no evidence of a letter from a school or school report of her daughter attending school placed before me to support Betty’s claim that her daughter is attending school and if so, at what school. Finally, there is no evidence of an invoice from a school to show the amount of school fees that is due for payment.

93. In my view, all these evidence are crucial and relevant to establish the ground or consideration under section 15(1)(a)&(b) of the PC Act. In the absence of such evidence, I find that there are no good grounds for the Plaintiff to exercise his power or authority over the property of the deceased until and unless he obtains letters of administration to administer the estate of the deceased.

94. Further, I consider that section 15(2) of the PC Act prohibits the Public Curator from selling, leasing, exchanging, mortgaging or partitioning any portion of the property of the deceased unless the property is ordered to be sold by the National Court on the application of the Public Curator. So, what this means is that except for the perishable property and those of decreasing value, the Public Curator cannot sell any other property of the deceased unless he first obtains leave of the National Court.

95. Furthermore, I consider that the subsequent subsections from 3 to 8 of section 15 of the PC Act provide for the process by which the Public Curator shall follow before dealing with the property of the deceased prior to obtaining letters of administration. For example if he decides to dispose off the property of the deceased after taking possession of the property, he must give notice, in writing or by telegram, to any person known to him as a person who (not being an infant or of unsound mind) would be entitled to obtain probate or letters of administration, informing him that he intends so to act unless the person proceeds to apply for probate or letters of administration immediately.

96. If the person does not, within 21 days after receiving the notice from the Public Curator inform the Public Curator that he intends to apply for probate or letters of administration or but fails to apply within 14 days after giving the notice for probate or letters of administration or applies for probate or letters of administration and the application fails, then, unless the National Court otherwise orders, the Public Curator may proceed to deal with the property under this section.

97. Finally, where it is not actually known to the Public Curator that there is any person entitled to obtain probate or letters of administration, or in a case of emergency (of which the Public Curator is the sole judge), section 15 does not prevent the Public Curator from dealing with the property notwithstanding failure to give notice to the interested person.

98. Section 15(3) also allows any other person other than the Public Curator to apply for letters of probate or letters of administration and this is where I was suggesting earlier on what the Defendant should have done. That is, he should have applied for letters of probate based on that "will" that his deceased father left behind (which I have already found to be invalid) or letters of administration to administer the estate of his deceased father. This is a re course still open to him to pursue.

99. From all these discussions, I consider that at the end of the day, the Public Curator is required to apply for letters of administration of a deceased interstate’s estate before he can take possession of and deal with the property of the deceased unless he can show that there exists or present the grounds or considerations that I have discussed above. For it is a mandatory statutory requirement under section 16 of the PC Act. It states:

"16. Duty of Public Curator on taking possession.

Subject to Section 15, where the Public Curator or a Public Curator's agent has, under this section, taken possession of any estate of a deceased person, the Public Curator shall apply, as soon as possible, to the National Court for an order under Section 10 in respect of the estate".

100. In my view, this provision is in unambiguous and clear terms in respect of the duty of the Public Curator or his agent to apply for letters of administration. There cannot be any argument about this provision. In other words, in my view, the Public Curator is not exempted from applying for letters of probate. Thus, an application for letters of administration is done under section 10 of the PC Act which states as follows:

"10. Orders to administer.

(1) On the application of the Public Curator, the National Court or a Judge may grant to the Public Curator an order to administer the estate of any deceased person leaving property within the jurisdiction where -

(a) the deceased left no executor, widow, widower or next of kin resident within the jurisdiction, who is willing and capable of acting in the execution of the will or the administration of the estate; or

(b) the executors named renounce probate of the will of the deceased, and all the persons primarily entitled to administration decline, by instrument filed with the Registrar, to apply for administration; or

(c) probate or administration is not applied for within three months after the death of the deceased; or

(d) after the expiration of 30 days after the death, there is no reasonable probability of application being made within the period of three months after the death; or

(e) the estate or any portion of the estate is liable to waste, and the executor, widow, widower or next of kin -

(i) is absent from the locality of the estate; or

(ii) is not known; or

(iii) has not been found; or

(iv) requests the Public Curator in writing to apply for the order; or

(f) the estate, or any portion of the estate, is -

(i) of a perishable nature; or

(ii) in danger of being lost or destroyed; or

(g) great expense may be incurred by any delay.

(2) The National Court or a Judge may -

(a) before granting the order applied for under Subsection (1), require the Public Curator -

(i) to give such notices; or

(ii) to cite such persons; or

(iii) to produce such evidence, as the Court or Judge thinks proper; or

(b) make a temporary order for collection and protection only, or limited to a portion of the estate or otherwise.

(3) Except as otherwise expressly provided, an order under Subsection (1) gives the Public Curator the same powers, rights and obligations in respect of the estate as he would have had if administration had been granted to him.

(4) Except as otherwise expressly provided, all laws referring to the administration of the estates of deceased persons apply to the administration of estates by the Public Curator".

101. Bearing in mind the above provisions, I now return to discuss the two reasons I posed earlier on for disagreeing with what Mr Ranpi says about the power or authority of the Plaintiff to take possession of and deal with the property of a deceased who dies interstate. First, in my view, the Public Curator is required to apply for letters of administration of the deceased estate after taking possession of the property of the deceased. I say this because whilst a deceased’s estate is initially vested in the Public Curator under section 44 of the WPA Act it must not be mistaken or forgotten that section 10 of the PC Act also requires the Public Curator to apply for letters of administration where a person dies without a "will".

102. Thus, I ask, is there evidence placed before me to show that after the Court granted the Interim Injunction, the Plaintiff proceeded to file an application for letters of administration of the estate of the deceased. I find that there is no such evidence placed before me and accordingly, I find the statement of Mr Ranpi misleading. Not only that, I conclude that the Plaintiff did not apply for letters of administration even though he had obtained an ex parte Interim Injunction on 16 April 2008. This was two months prior to the hearing of the present application. When will he apply for letters of administration? It is anyone’s guess!

103. I find that without a grant of letters of administration of the deceased estate, the Plaintiff as the Public Curator went one step further purportedly in the exercise of his power or authority under section 14 of the PC Act and also section 44 of the WPA Act to issue a notice of demand to the Defendant dated 6 August 2007, a copy is in evidence before me as Annexure "A" of the Affidavit of Eric Ranpi sworn on 14 April 2008 and filed on 15 April 2008. The Plaintiff says that this notice is issued pursuant to section 40 of the PC Act. Section 40 states:

"40. Disclosure to Public Curator.

(1) Where -

(a) a corporation, association or person is in possession of any property of a deceased person; or

(b) any property or money is to the credit of a deceased person in the books or accounts or otherwise of a corporation, association or partnership; or

(c) under any association or partnership -

(i) a deceased person is entitled to a share in the assets of the association or partnership; or

(ii) his representatives are entitled to any payments as his share in such assets; or

(d) a deceased person is the registered proprietor of any shares in a corporation or association; or

(e) any person is indebted to a deceased person,

and the property, money, shares, or debts are vested in or belong to the Public Curator, the association, corporation or person must give notice immediately to the Public Curator or to a Public Curator's agent of the extent, nature and situation of the property, money, shares or debts.

(2) Where an order has been made under Section 10 vesting possession of the property of a missing person in the Public Curator -

(a) any association, partnership or other person that or who -

(i) is in possession of any property; or

(ii) holds in its or his books or accounts a credit of any money; or

(iii) has any asset, or a share in any asset,

of the missing person; or

(b) any corporation or association in which the missing person is the registered proprietor of any shares; or

(c) any person indebted to the missing person,

shall give notice immediately to the Public Curator of the extent, nature and situation of the property, money, asset, share or debt, as the case may be.

(3) Any corporation, association or person referred to in Subsection (1) or (2) who wilfully neglects to comply with the provisions of this section is liable to a penalty of K400.00 recoverable by civil action at the suit of the Attorney-General".

104. From reading this provision, to my mind it does not say that the Public Curator shall give notice of demand to the corporation, association or person who is in possession of any property of the deceased. On the contrary, it is clear to me that the corporation, association or person who is in possession of any property of the deceased shall immediately give notice to the Public Curator "of the extent, nature and situation of the property, money, asset, share or debt, as the case may be".

105. To my mind, section 40 is a "disclosure" provision and not a "demand" provision. In the event that the corporation, association or person fails to disclose the information to the Public Curator of the property of the deceased, I consider that he is not left without a redress. He may invoke subsection 3 of this provision by asking the Attorney General to sue in a civil action the defaulters to recover a penalty fee of K400.00. It is not the Public Curator who may bring this civil action but the Attorney General. This civil action is called the "relator proceeding" which is referred to in section 4 of the Claims By & Against the State Act 1996.

106. In the present case, there are two obvious defects in this proceeding. The first one is that the Plaintiff instituted it on the misapprehension that he has the power or authority to issue a notice of demand. This is clearly demonstrated by the volume of notices issued by Mr Ranpi to the Defendant between August 2007 and January 2008 to comply with the demand to disclose information in Annexures "B", "C" "D" "E" "F" & "G" of his Affidavit sworn on 14 April 2008 and filed on 15 April 2008.

107. To my mind, the Plaintiff took a road wrong so to speak because as I have observed above, he does not have that power or authority to do that. Secondly, this proceeding should have been commenced by the Attorney General as a "relator proceeding".

108. So where does this lead us? It just shows that, the whole proceeding was commenced with so much haste and less preparation that it has landed both parties in this dilemma. It also means that the Plaintiff has no power or authority to demand disclosure of any information from the Defendant as to the property of the deceased. Furthermore, it means that the whole proceeding is questionable and standing on shaky ground.

109. It also demonstrates that there are really no serious or triable issues raised in whole proceeding to warrant the Court’s exercise of discretion to extend the Interim Injunction until the dispute is determined at the full trial.

110. For these reasons, I find that the Plaintiff’s proposition that he is vested with power or authority to take possession and deal with the property of the deceased prior to the grant of letters of administration is not only weak but also a speculative one which does not have prospect of success if it goes to full trial. I also find that it is misconceived and without foundation in law. Accordingly, I find that there are no serious or triable issues in this proceeding.

Balance of convenience.

111. The Plaintiff argues that there is imminent or real threat that the Defendant will dispose off the property (motor vehicles) if the Interim Injunction is dissolved. The Plaintiff also argues that the Defendant is in possession of the motor vehicles and is using them to the exclusion of the other beneficiaries like Betty. On the other hand, the Defendant argues that the motor vehicles are used by him to pay off debts of his deceased father.

112. These debts are:

113. To support his claim that his deceased father left behind substantial debts, the Defendant annexes to his Affidavit invoices and receipts of payments to Kalaka PB services station, invoices and receipts of payments to Highlander BP service station and invoices and receipts of payments to various companies like Ela Motors, B&M Engineering Ltd, Esco Limited, and Motorist Discount Centre Pty Ltd for vehicle spare parts.

114. The Plaintiff did not rebut or deny these debts. Thus, I find that these debts fall under the estate of the deceased. The debts are in excess of K 70,000.00. The question then is, who should be responsible for settling these debts?

115. The answer is simple and straight forward. It can be either of them so long as one of them obtains letters of administration of the estate of the deceased from the National Court. Once letters of administration is granted, in a usual case of intestacy proceedings, priority is given to the creditors of the deceased where the administrator must settle the debts of the deceased before distributing the remainder of the estate to the beneficiaries of the deceased.

116. In the present case, I consider that the proper and correct procedure for the Plaintiff to follow is to invoke the Court’s power to give notice and preserve his interest in the estate of the deceased under Order 19, rule 60 of the National Court Rules. That is, he should have applied for a caveat. Order 19, rule 60 provides as follows:

"60. Caveat in respect of grant. (78/61)

(1) A person claiming to have an interest in an estate may lodge in the Registry a caveat in Form 95 in respect of any grant or reseal being made in the estate.

(2) The caveat shall state fully the nature of the interest claimed by the caveator and an address for service.

(3) Where a person, to the knowledge of the caveator, is making or is intending to make application for a grant or resealing in the estate, the caveator shall, within seven days of the lodging of the caveat, serve a copy of the caveat on him".

117. Order 19, rule 60 is very clear. Where the Plaintiff claims that he has an interest in the estate of the deceased, he must file a caveat which must contain full details of his interest and address of service. Further, if the Plaintiff knows that the Defendant is making or intending to make an application for a grant of administration of the estate of the deceased, he must within seven days of the filing of the caveat serve a copy on the Defendant.

118. Assuming that the Defendant did the correct thing by filing an application for either a grant of probate based on the "will" contained in the Statutory Declaration (which I have already found to be invalid) or grant of administration then, the Plaintiff would have served a copy of the caveat on the Defendant. If that was done, the Defendant would have been obliged to take note of his interest when it came to determining the beneficiaries of the deceased.

119. I consider that these should have been the processes by which the Plaintiff and the Defendant should have followed at the beginning of the dispute and to come to Court in the way they did because after all, I can see that the dispute is really over who are the legitimate beneficiaries of the estate of the deceased. That is, is it the Defendant only or is it the Defendant and Betty plus others whom I am unable to establish their identity now because there is no evidence of their identity before me? But these processes in my view have not been followed.

120. Hence, we find both sides claiming an entitlement over the estate of the deceased at the expense of the other beneficiaries. Regardless of the parties’ failure to comply with these processes, I consider that the issue of beneficiaries is a matter for the intestacy proceeding to determine.

121. For now as I have found that the parties have proceeded under a misapprehension of the whole process by instituting this proceeding, the end result is that, the balance of convenience does not favour the continuation of the Interim Injunction. It must be set aside or dissolved in the interest of all parties so that both sides may seriously review their respective positions and determine the appropriate next course of action to resolve this dispute.

Damages

122. As to the question of whether or not damages would be an alternative adequate remedy for the Plaintiff, I consider that if the Plaintiff alleges that the other beneficiaries of the deceased will miss out of the estate of the deceased, then it is in their interest that he immediately applies for letters of administration so that once granted the administration, he maybe able to first identify the beneficiaries of the deceased, secondly identify any other property of the deceased and realize them, fourthly settle the debts of the deceased and finally distribute the remainder of estate to the beneficiaries.

123. Unless and until those matters are quickly attended to, I cannot see any basis for the Plaintiff’s contention that his damages will be substantial. In fact, he stands to loss nothing because, he is only a "custodian" of the estate so to speak and he is duty bound to ensure that the interests of the beneficiaries of the estate are adequately catered.

124. For these reasons, I am satisfied that the issue of damages being an adequate remedy for the Plaintiff does not arise here.

Undertaking as to Damages

125. Many litigants in proceedings before the Court for applications for Injunctions do not take seriously the need to file an Undertaking as to Damages. I suppose they do not understand or know the implications behind the giving of an undertaking.

126. But I consider that giving an undertaking to pay damages to another party in the litigation concerning an Injunction is a serious matter and one which is a pre condition to an application for Injunction. If not given, I think the Court should not hear the application until it is given. As I said in East Arowe Timbers Resources Limited & Ors -v- Cakara Alam (PNG) Limited & 2 Ors (2008) N 3270 at pages 24 and 25:

"An Undertaking as to Damages is an important consideration in an application for an Interim Injunction. It is one of the preconditions of an Interim Injunction. It must be given by the applicant at the time of making the application, which is at the time of filing of, or prior to the making of the application, that is before the hearing of the application. See His Honour Mr Justice Sevua’s judgment in Gobe Hongu -v- National Executive Council & Others (1999) N1920. In my view, it is not something to be taken lightly by the party applying for an Interim Injunction because it is an undertaking given to the Court and not to the parties involved in the litigation. If the party applying for the Interim Injunction is a company, the responsible officer of the company must give the undertaking on behalf of it. If the part is the State or a State entity, an appropriate officer of the State or the State entity must give the undertaking. If the party is an individual, he must give the undertaking to pay damages. This is because in most cases, the Interim Injunction will prevent the other party or parties from doing an act which must result in substantial monetary loss.

A party who is successful in setting aside the Interim Injunction either at the interlocutory stage or at the substantive trial may sue on the undertaking to recover any monetary loss suffered as a result of the Interim Injunction. See the National Court case of Lee & Song Timber (PNG) Co Limited -v- Nathaniel Burua as Chairman of East New Britain Provincial Forest Management Committee & 5 Others (2005) N2836.......

I am therefore of the view that the party giving an Undertaking as to Damages must understand the seriousness of an undertaking. It should not be treated merely as a document filed as a matter of course when applying for an Interim Injunction".

127. In the present case, I am satisfied that the Plaintiff has given an undertaking to pay damages to the Defendant in the event that he is unsuccessful with his case either at the interlocutory stage or at the full trial. That Undertaking was filed on 15 April 2008.

SUMMARY

128. At the end of the day, I have decided that first, there is no valid "will" of the deceased. Proceeding on that premise, secondly, I find that whilst the Plaintiff as the Public Curator is vested with power or authority to take possession of the property of the deceased which includes the motor vehicles, the subject of the dispute in this proceeding pursuant to section 14 of the PC Act and section 44 of the WPA Act, that power or authority is exercised by him on temporary or interim basis prior to the grant of letters of administration to administer a deceased’s estate either by him or some other person.

129. The circumstances under which the Plaintiff may exercise this power or authority are:

1. where the real property is of a perishable nature or decreasing in value; or

2. where the personal property is required to be sold or disposed of wholly or in part to meet the funeral expenses of the deceased or meet any other expenses incurred in collecting, preserving or selling or disposing of the personal property of the deceased; or

3. where the personal property is required to be sold or disposed of wholly or in part to meet expenses incurred to preserve the real property from perishing or decrease in value.

130. I have found that there is no evidence to support the exercise of that power or authority under those two provisions. I have also found that the Plaintiff has a fall back position whereby he may exercise power or authority over the property of the deceased under section 15 of the PC Act prior to the grant of letters of administration but there is no evidence to support the exercise of that power under that provision.

131. Finally, I have reached the conclusion that notwithstanding those powers or authority under sections 14 & 15 of the PC Act and section 44 of the WPA Act, the Plaintiff is duty bound to apply for letters of administration to properly administer the estate of the deceased under sections 10 & 16 of the PC Act.

132. For the foregoing reasons, it is my opinion that there are no serious or triable issues raised in this proceeding and the balance of convenience does not favour the continuation of the Interim Injunction. Except for those brief observations I made above, I remain neutral on the question of damages although I accept that the Plaintiff has given an undertaking to pay damages which is a matter for the Defendant to pursue if he thinks that he has a case against the Plaintiff for damages.

COSTS

133. The question of costs is a discretionary matter and the Court may order costs against a party in appropriate cases. See Order 22, rule 4 of the National Court Rules.

134. In this case, as I have observed, I was left to do almost the entire work of both counsel in respect of the application to set aside the Interim Injunction on my own. None of the counsel assisted me with submissions on the law and relevant case authorities to support each party’s case. I have had to do my own research to lay down the law in a general way of the respective parties’ position in respect of the dispute over the property (motor vehicles) and the estate of the deceased to reach a decision on whether nor not the Interim Injunction be set aside.

135. In the circumstances, I do not see any basis for either party to have the costs of the application and I will order that each party shall bear their own costs of the application.

ORDERS

Accordingly, I make the following formal Orders of the Court:

1. The Interim Injunction of 16 April 2008 is set aside or dissolved in its entirety.

2. The matter is referred for Directions hearing on Monday 6 October 2008 at 9:30 am.

3. Each party shall bear their own costs of the application.

4. Time for entry of these Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

_________________________________________

Paul Mawa Lawyers: Lawyers for the Plaintiff
Tonge Lawyers: Lawyers for the Defendant