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Kopi v Wororong Pacifica New Guinea Ltd [2011] PGNC 263; N4508 (26 July 2011)

N4508

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA 208 OF 2010

BETWEEN:

PUGMA KOPI
Appellant

AND:

WORORONG PACIFICA NEW GUINEA LTD
First Respondent

AND:

ALEX TONGAYU, REGISTRAR OF COMPANIES
Second Respondent

AND:

HENRY WASA, REGISTRAR OF TITLES
Third Respondent

Waigani: Thompson, AJ
2011: 26 July

DISTRICT COURT APPEAL – power of sale by Registrar of Companies – indefeasibility of title – registrable interest.

DISTRICT COURT APPEAL – deregistered company as proprietor of land – challenge to Registrar of Companies' power of sale – Respondent was registered proprietor –indefeasibility of title – no registrable interest by Appellant.

Counsel: Mr.R.J. Mann-Rai, for the Appellant
Ms. K. Rema, for the First Respondent

DECISION
26th July, 2011

1. THOMPSON AJ: The First Respondent has applied by way of Notice of Motion to set aside the ex parte interim orders obtained by the Appellant, and to have the First Respondent removed as a party from the proceedings.

2. When the ex parte orders were first made on 14 March 2011, all the relevant material was not before the Court. It is now clear from the subsequent Affidavit material that the 1st Respondent is the registered proprietor of the property, who has indefeasible title against everyone, unless challenged on the possible grounds set out in Section 33 of the Land Registration Act. The Appellant has not pleaded any of those grounds in this appeal. There is no allegation of fraud or anything else set out in Section 33.

3. The only basis of this Appeal is an allegation that the Registrar had no power to sell the property owned by a company, because that property was only held in trust by the company. The Appellant has not identified the alleged beneficiary of the alleged trust, and has not provided any evidence at all in support of the allegation, such as a trust deed. In any event, this is not a ground for challenging the indefeasibility of title under Section 33 of the Land Registration Act.

4 The subsequent Affidavits also show that there have been and continue to be a number of legal proceedings in relation to this same issue. One of those proceedings has already confirmed that after the company was de-registered, it became validly vested in the Registrar, who was then validly entitled to sell the property. He did sell it, on 16 April 2010, and the Appellant has not yet demonstrated any legal basis for challenging the Contract of Sale.

5. In this regard, it is plain that the basis of this Appeal is not merely to challenge a decision of the Registrar to sell the property. It is to challenge the actual sale of the property. The Contract for Sale was dated 16 April 2010, and it is this transaction which the Appellant is seeking to challenge. In effect, the Appellant is seeking to set aside the Contract for Sale. It is therefore highly relevant that following the Contract for Sale, a Certificate of Title was issued to the First Respondent, who thereby acquired indefeasible title.

6. Apart from the relative strengths of each party's case, the main issue in the grant of an interim injunction is the balance of convenience. In this case, the balance of convenience clearly favours allowing the registered proprietor of the property to remain in full use and occupation until the determination of the proceedings. The Appellant is merely an individual who says that he was one of the shareholders in a company which was deregistered, and which has not been restored to the register. That is a fairly tenuous basis on which to be challenging the sale of the property, compared with the fact that the First Respondent is the registered proprietor of the property.

7. For those reasons, the interim orders of 21 June 2011 are all discharged forthwith.
8. Para 2 of the 1st Respondent's Notice of Motion filed on 18 July 2011 is adjourned for hearing on 2 August 2011.

9. The costs of this application are costs in the cause.
______________________________________________________

Mr.R.J. Mann-Rai: Lawyer for the Appellant
Ms. K. Rema: Lawyer for the First Respondent