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Rema v Rema [2017] PGNC 331; N7049 (29 May 2017)

N7049

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MC No.13 of 2016

BETWEEN:
KAREN NUGI REMA
Petitioner

AND:
NEPOLIAN REMA
Respondent

Waigani: David, J
2017: 24 & 29 May

FAMILY LAW – matrimonial property – motor vehicle - Matrimonial Causes Act, Section 75

Case cited:

White Corner Investment Ltd v Regina Waim Harro (2009) SC959

Counsel:

Karen Nugi Rema, as petitioner in person
Levi Tilto, for the Respondent

RULING

29 May, 2017

1. DAVID, J: This is a ruling on an application moved by the petitioner pursuant to a notice of motion filed on 17 March 2017 relying on Order 14 Rule 10 of the National Court Rules for an order to detain a motor vehicle described as a silver Nissan Patrol, station wagon, bearing registration number BEV120 (the motor vehicle) at the Court’s premises and keys be given to the Court pending the determination of these proceedings.
   

2. The respondent has vigorously contested the application.

3. The petitioner relies on her own affidavit sworn on 30 November 2016 and filed on 17 March 2017.

4. In contesting the application, the respondent relies on his own affidavit sworn and filed on 23 May 2017.

5. The main issues for my consideration and determination are:

(a) whether the motor vehicle is matrimonial property?
(b) if so, whether the relief sought should be granted?

6. The petitioner submits that the motor vehicle forms part of the matrimonial property. It was acquired by the respondent from proceeds of the fraudulent sale of a Land Cruiser V8 (the Land Cruiser) which she acquired in Brisbane, Australia and was registered in her name through a loan she obtained from her bank, Australia and New Zealand Banking Group (PNG) Limited for AUD$62,000.00 (K170,000.00) which she herself is currently servicing because she did not authorize the sale and it was done without her knowledge. The respondent sold the Land Cruiser for AUD$42,000.00 which was about K135,000.00. She has not benefitted from the purchase of the Land Cruiser at all, but was repaying the loan she obtained to purchase it. The respondent has been using the motor vehicle since its purchase for over a year now. For the security of the motor vehicle and to protect its value from depreciating any further, it was necessary for the relief sought to be granted.

7. Mr Tilto for the respondent submitted that the application should be dismissed on the basis that; first, the motor vehicle was owned by the respondent and registered under his name; second, the application was perpetrated as a form of harassment and intimidation of the respondent when it was pleaded in the petition filed for the dissolution of the marriage between the parties on 27 July 2016 (the petition) as forming part of the matrimonial property for settlement under the provisions of the Matrimonial Causes Act; third, the motor vehicle was used by the respondent for the benefit of the children who currently were living with him, but there was no restraint on access meaning they also spend time on occasions with their mother, the petitioner.

8. As to whether the motor vehicle is matrimonial property, there is no definition of the phrase “matrimonial property” under the Matrimonial Causes Act.

9. Matrimonial cause proceedings are governed and regulated by the Matrimonial Causes Act and the Matrimonial Causes Rules. Section 1 of the Matrimonial Causes Act defines the phrase “matrimonial cause” and it means, inter alia, proceedings with respect to a decree of dissolution of marriage or the maintenance of a party to any proceedings or settlements or damages in respect of adultery or the custody or guardianship of infant children of a marriage or the maintenance, welfare, advancement or education of children of a marriage. Section 3 of the Matrimonial Causes Act provides that following the commencement of proceedings for a matrimonial cause under the Matrimonial Causes Act, proceedings for any relief or order of a kind that could be sought under the Act in proceedings in relation to that matrimonial cause shall not be instituted except under that Act. The National Court Rules therefore has no application: White Corner Investment Ltd v Regina Waim Harro (2009) SC959.

10. Section 75 of the Matrimonial Causes Act is relevant in determining whether the motor vehicle is matrimonial property. The provision states:

“75. Powers of Court with respect to settlement of property

(1) In proceedings under this Act, the Court may by order require the parties to the marriage, or either of them, to make, for the benefit of all or any of the parties to, and the children of, the marriage, such settlement of property to which the parties are, or either of them is, entitled (whether in possession or in reversion) as the Court thinks just and equitable in the circumstances.

(2) In proceedings under this Act, the Court may make such order as the Court thinks just and equitable with respect to the application, for the benefit of all or any of the parties to, and the children of, the marriage, of the whole or part of property dealt with by ante-nuptial or post-nuptial settlements on the parties to the marriage, or either of them.

(3) The power of the Court to make orders of a kind referred to in this section shall not be exercised for the benefit of a child who has attained the age of 21 years unless the Court is of opinion that there are special circumstances that justify the making of such an order for his benefit.” (my emphasis)

11. In my opinion, the operative phrase in Section 75(1) “property to which the parties are, or either of them is, entitled (whether in possession or in reversion)” which I have underlined, defines the test to be applied when considering the issue whether a property is a matrimonial property or not. The definition is all-encompassing and in my opinion, it encompasses all properties which were acquired by the parties either jointly or severally. Hence, if the parties jointly or either of them acquired properties before or during the course of their marriage, those properties would be caught by Section 75(1) and will be deemed to be matrimonial properties on the basis that the parties are or either of them is, entitled to those properties. This also means that properties acquired by a party during the course of the parties’ marriage will be caught by Section 75(1) and will be deemed matrimonial properties if they were acquired with funds acquired during the marriage.

12. It follows that the motor vehicle registered under the name of the respondent is deemed to be matrimonial property and is subject to the Court’s determination with respect to settlement of matrimonial property as has been pleaded at paragraph 12 of the petition under Section 75 of the Matrimonial Causes Act in the substantive proceedings.

13. The petitioner relies upon Order 14 Rule 10 of the National Court Rules which, as I have alluded to earlier, is not applicable in matrimonial cause proceedings as the Supreme Court has stated in White Corner Investment Ltd v Regina Waim Harro. For this reason, the petitioner’s application which has been moved pursuant to Order 14 Rule 10 of the National Court Rules is misconceived and dismissed as a result. I order that the petitioner pay the respondent’s costs of this application.

Ordered accordingly
_______________________________________________________________
Petitioner in person
Kari Bune Lawyers: Lawyers for the Respondent