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TST Development Ltd v Global Customs & Forwarding Ltd [2017] PGNC 389; N7192 (19 December 2017)

N7192

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 876 of 2017

BETWEEN:
TST DEVELOPMENT
LIMITED
Plaintiff

AND:

GLOBAL CUSTOMS &

FORWARDING LIMITED

Defendant

Wagani: Hartshorn J
2017: 24^th October,
: 19^th December

Application to dismiss the proceeding

Cases Cited:
Papua New Guinea Cases

Kerry Lerro v. Stagg & Ors (2006) N3050
Mt Hagen Urban Local Level Government v Sek No.15 (2009) SC1007
Napanapa Landowner Assoc. v. Gaudi Logae (2016) SC1532
National Housing Corporation v. Paul Asakusa (2012) SC1165
Peter O’Neill v. Nerrie Eliakim and Ors (2016) SC1522
Siu v. Wasime Land Group Incorporated (2011) SC1107
Takori v.Yagari & Ors (2008) SC905
Telikom PNG Ltd v. Independent Consumer and Competition Commission (2008) SC906

Overseas Cases

Hubbuck & Sons, Ltd v. Wilkinson, Heywood & Clarke, Ltd [1898] UKLawRpKQB 176; [1899] 1 Q.B. 86

Counsel:

Mr. M. Goodwin, for the Plaintiff
Mr. B. Koae, for the Defendant

Oral decision delivered on
19^th December, 2017

1. HARTSHORN J: This is a decision on a contested application to dismiss this proceeding on the grounds of either an abuse of process, res judicata or estoppel.
   

Background

2. The plaintiff pleads that it is the registered proprietor of a State Lease issued in respect of the land described as Allotment 22 Section 250 Hohola, Waigani (Land).
   
3. The plaintiff and defendant entered into a contract for sale by which the defendant would purchase the Land for K4 million. The defendant was let into early possession of the Land. Ministerial approval for the transfer of the Land was denied. The plaintiff has rescinded the contract as it alleges the defendant has breached it. The defendant has failed to deliver vacant possession of the Land. The plaintiff sues for and claims vacant possession, damages for amongst others, mesne profits, lost rental, unjust enrichment, and an account of profits.
   
4. The defendant pleads amongst others, that the plaintiff’s title was forfeited and the contract for sale is void. The defendant cross claims that it paid a 10% deposit, the plaintiff did not have a valid title, the contract for sale was frustrated, the defendant has an equitable interest in the Land and seeks declaratory relief that the contract for sale is unenforceable, that the plaintiff’s title is invalid, injunctive relief, a refund of the 10% deposit and damages.
   

This application

5. The defendant submits that the proceeding should be dismissed as amongst others:
   

a) The proceeding is an abuse of process as the plaintiff does not have a valid title;

b) The proceeding is an abuse of process as there is a multiplicity of proceedings;

c) The proceeding offends against the principles of res judicata and issue estoppel and so should be dismissed.

6. The plaintiff submits that the proceeding should not be dismissed as amongst others:
   

a) The plaintiff now has the original title for the Land - the title was not forfeited;

b) The plaintiff has a strong case that is likely to succeed;

c) The previous proceedings did not, amongst others, finally determine the issues between the parties and therefore, the doctrines of res judicata and issue estoppel do not apply.

Law

7. The defendant relies on Order 12 Rule 40 National Court Rules. There are numerous authorities in respect of the principles which apply to applications under Order 12 Rule 40 National Court Rules and I refer to the following cases in this regard: Kerry Lerro v. Stagg & Ors (2006) N3050, Takori v.Yagari & Ors (2008) SC905, Mt Hagen Urban Local Level Government v Sek No.15 (2009) SC1007 and Siu v. Wasime Land Group Incorporated (2011) SC1107. Further, notwithstanding all of the various judicial pronouncements since, the position is succinctly summarised in Hubbuck & Sons, Ltd v. Wilkinson, Heywood & Clarke, Ltd [1898] UKLawRpKQB 176; [1899] 1 Q.B. 86. At 90-91 the Court of Appeal said:

“The second and more summary procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands, is insufficient, even if proved, to entitle the plaintiff to what he asks.”

Consideration

8. In regard to the plaintiff not having a valid title to the Land: putting aside the issue of whether this would constitute an abuse of process, the evidence before the court is equivocal and not conclusively against the plaintiff on this point. It is an issue that should be allowed to go to trial. It is not such that the plaintiff should be precluded from advancing its case further.
9. As to there being a multiplicity of proceedings, the defendant in its submission states that the previous proceeding was dismissed for want of prosecution and the plaintiff failed to appeal that decision.
10. If a proceeding was dismissed, it no longer exists. There have to be proceedings in existence at the same time for there to be a multiplicity of proceedings. In this regard I refer to the Supreme Court decision of Telikom PNG Ltd v. Independent Consumer and Competition Commission (2008) SC906 at [101] in which the majority said the following concerning why a multiplicity of proceedings is considered an abuse of process:
    

“We do not consider that it is necessary for a defendant to be harassed or for one of a number of proceedings to reach finality for a multiplicity of proceedings to give rise to an abuse. It is the very existence of two or more proceedings involving the same subject matter that is noxious and gives rise to the presumption, rebuttable, of abuse of process.

Once the jurisdiction of the National Court is invoked by filing a proceeding, it is incumbent on a plaintiff to prosecute it with all due dispatch; and not to commence parallel proceedings over the same subject matter. Parallel proceedings give rise to confusion and inconvenience for the defendants and the court, even where, as in the present case, one of the originating processes is not served on the defendant. Very good reasons for commencement of parallel proceedings must be given.”

11. Here, as the other proceeding no longer exists, there is not a multiplicity of proceedings.
12. As to this proceeding offending against the doctrines of res judicata and issue estoppel, as referred to, the defendant in submissions states that the previous proceeding was dismissed for want of prosecution. This means that it was not dismissed after this court made a final determination of the issues in the proceeding on the merits. I refer to the Supreme Court decision of Peter O’Neill v. Nerrie Eliakim and Ors (2016) SC1522 at [12] in which the Supreme Court decision in National Housing Corporation v. Paul Asakusa (2012) SC1165 is cited with approval as to issue estoppel, and Napanapa Landowner Assoc. v. Gaudi Logae (2016) SC1533 at [48] as to res judicata. It is clear that there has to be a final determination and of the particular issue before these doctrines apply. There is no evidence here that there was such a final determination.
13. Further, as to commencing a proceeding again, the National Court Rules provide at Order 12 Rule 7 National Court Rules, that amongst others, that where an order for dismissal of proceedings has been made, that order for dismissal shall not prevent the plaintiff from bringing fresh proceedings or claiming the same relief in proceedings.
14. Consequently, for the above reasons the defendant is not entitled to the relief that it seeks as it has failed to establish that the proceeding does not disclose a reasonable cause of action, or is frivolous or vexatious, or is an abuse of process.

Orders

15. The formal Orders of the Court are:

1. All of the relief sought in the notice of motion of the defendant filed 18^th October 2017 is refused;
2. The defendant shall pay the plaintiff’s costs of an incidental to the said notice of motion;

100. Time is abridged.

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O’Briens: Lawyers for Plaintiff
Eda Legal Services: Lawyers for Defendant