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

Barl v Young Jin Trading [2012] PGNC 143; N4856 (30 October 2012)

N4856

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 537 OF 2012

JOHN BARL
First Plaintiff

TRESA BARL
Second Plaintiff

AND

YOUNG JIN TRADING
Defendant

Goroka: Ipang AJ
2012: 12 & 30 October

CIVIL LAW – Motion – by plaintiffs seeking Summary judgment under Order 12 Rule 38 of the National Court Rules.

CIVIL LAW – Motion by Applicant Lopony Carriers Limited seeking to be joined or added as "Second Defendant" pursuant to Order 5 Rule 8 (1) & (3) of the National Court Rules.

Cases Cited
Pinpar Development Pty Ltd v TL Timber Development Pty Ltd [1999] PNGLR 139

Counsel

Mr. R. Yombon, for the Plaintiff

Mr. G.Gendua, for the Defendant & Applicant

RULING

30 October, 2012

1. IPANG AJ: There are two (2) motions before this Court. The first motion was filed by the Plaintiff on the 7th of September, 2012 and on the 19th September, 2012 by the applicant Lopony Carriers limited. Both applications are contested.
   
2. I intend to deal with the application filed by Lopony Carriers Limited as their application seeks ancillary relief whereas the application by the Plaintiff seeks substantive relief. So if whichever way I decide or rule on the first application it will not bar the Plaintiffs from making their application.
   
3. The applicant Lopony Carriers Limited seeks the following relief through its motion:
   
   1. The Applicant Lopony Carriers Limited be joined or added as "Second Defendant" in this proceeding pursuant to Order 5 Rule 8 (1) and (3) of the National Court Rules.
   2. Cost be in the cause.
   3. Any or further orders as the Court sees fit.
      
4. Mr. Gendua of counsel for the Applicant Lopony Carriers Limited in moving the applicant's motion relied on the Affidavit of George Kuno filed on the 19th of September, 2012.
   
5. The Plaintiffs application seeks the following reliefs:
   
   1. Summary judgment be entered for the Plaintiffs pursuant to Order 12 Rule 38 of the National Court Rules.
      
   2. Any other orders the Court deems appropriate.
      
6. The Plaintiff's application is supported by the Affidavit of John Barl sworn on the 6th of September, 2012 and filed on the 7th of September, 2012.
   

Application by Lopony Carriers Limited

7. The Applicant Lopony Carriers Limited applied to be joined or added as "Second Defendant" in the proceedings. The applicant says at one time it was the owner of the property described as Section 23 Allotment 24, Goroka the subject of the current proceedings between the Plaintiffs and the Defendant.
   
8. The applicant says the property as described was sold illegally to the plaintiffs by a person who was not a duly appointed liquidator. The applicant says they have filed separate proceedings before the National Court in Goroka and have sued the purported Liquidator for false pretence, fraud and trespass. They further say the purported Liquidator took possession of their property under false pretence as the applicant's Liquidator and sold the property to the current plaintiffs. The Applicant says the other proceeding was registered as WS. No. 1435 of 2009; Lopony Carriers Limited –v- South Pacific Brewery Limited, Salvatore Algeri, Hugh Mosley, James Kruse, Steven Halstead & Deloitte Touche Tohmatsu Chartered Accountants.
   
9. The Applicant submitted that Hugh Mosley, being the seller of the property Section 23 Allotment 24, Goroka did not have the authority to sell the property, which he sold fraudulently. The applicant says on that basis, the plaintiffs cannot have the title to this property.
   
10. The applicant further submitted that when the Court appointed Liquidator Salvatore Algeri left Papua New Guinea, he did not obtain the approval of the Court to vacate the Liquidator's Office which is contrary to s.331 (3) of the Papua New Guinea Companies Act and thus effectively deserted the applicant's liquidation. The applicant says there is no evidence that Court has appointed Hugh Mosley to succeed Salvatore Algeri. After Algeria's departure, Hugh Mosley advertised and sold its property claiming himself to be the Liquidator.
    
11. Because of the aforesaid reasons, the applicant says the Plaintiff bought the property Section 23 Allotment 24, Goroka from the seller who lacked powers and therefore cannot convey the title to the property to the Plaintiffs. This argument may not have its foundation in law. The Plaintiffs are the bona fide purchasers. That means they as Purchasers acted in good faith. Unless the contrary is shown.
    
12. Mr. Gendua of Counsel for the applicant hinted out that in the event the Court grants the relief sought in the applicant's motion to be joined or added as "Second Defendant" the applicant will seek additional orders to have the rental payments from the property paid to a trust account pending the outcome of the case in Lopony Carriers Limited –v- South Pacific Brewery & Ors (supra).
    
13. In Pinpar Development Pty Ltd –v- Timber Development Pty Ltd [1999] PNGLR 139, in the context of a party seeking to be joined as a party, the Court held that:
    
    1. The onus is on the person applying to satisfy the Court that the discretion should be exercised in its favour.
    2. The test for exercising this discretion is whether prime facie there could be a cause of action against the proposed party.
    3. .......
    4. .....
    5. ....
       
14. The Plaintiffs have a legal estate in the property Section 23 Allotment 24, Goroka. They have acquired the legal estate in the said property after following and complying with all the formalities required by law and have the title to the property transferred to them. They now have the protection under s.33 of the Land Registration Act, 1981.
    
15. The relief the applicant intended to seek in the event if joined as a Second Defendant will go contrary to the principle of "Bona fide Purchasers for value" and s.33 of the Land Registration Act on indefeasible title. On this basis I dismiss the applicant's motion.
    
16. Because of the above reasons, I granted the reliefs sought by the Plaintiffs motion, pursuant to Order 12 Rule 38 of the National Court Rules, in the following:
    
    1. Declare that Plaintiffs are the joint properties of Section 23 Allotment 24, Goroka.
    2. Declare that Defendant without any lawful cause failed to pay rentals to the Plaintiffs.
    3. Defendants are evicted out from Section 23 Allotment 24, Goroka within 28 days from the date of this order.
    4. Defendant pay and back pay the outstanding rentals in the sum of K112, 000.00 since May, 2011 prior or at the time of vacating the premises.
    5. Defendant shall pay the Plaintiffs' costs of this proceeding, to be agreed if not to be taxed.
    6. Defendant shall pay 8% interest pursuant to Judicial Proceedings (Interests on Debts and Damages) Act.
       
       • - 112,000.00 x 0.08 x 1.5 = 13440.00
       • - K112,000.00 + K13,440.00 = K125,440.00
         
7. I award total judgment in the sum of K125,440.00
   

______________________________________________________

Kumul Legal Group Lawyers: Lawyer for the Plaintiffs

Gendua & Associates Lawyers: Lawyer for the Defendant & Applicant