N9484

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 104 OF 2018

BETWEEN:
TST DEVELOPMMENT LTD
Appellant

AND:
GLOBAL CUSTOMS & FORWARDING LTD
First Respondent

AND:
THE HONOURABLE JUSTIN TKATCHENKO
as the Minister for Lands & Physical Planning
Second Respondent

AND:
OSWALD TALOPA in his capacity as the Acting Secretary for Department of Lands & Physical Planning
Third Respondent

Waigani:  Dingake J
2022:   10th & 21st February

PRACTICE AND PROCEDURE – application by appellant to set aside ex parte order – principles to consider in an application seeking orders to set aside ex parte order - why judgment or order was allowed to be entered in the absence of the Applicant - If there is a delay in making the application to set aside, a reasonable explanation as to the delay; and that there is a reasonable explanation for the proceeding not being prosecuted with due diligence -the interest of justice – appellant has made out a case for the relief sought – application granted – ex parte order set aside – matter listed for directions

Cases Cited:

Peter Norr v Dominic Ikamata [2005] SC815

Counsel:

Mr. Donald Kints, for the Plaintiff
Mr. Gibson Anis, for the First Respondents

21st February, 2022

1.	DINGAKE J:	This is an application by the Appellant, principally, to set aside the ex parte order granted by this Court on the 11th of November, 2021.

2.	The application was filed on the 17th of December, 2021.

3.	At the heart of the substantive dispute between the parties is a piece of land described as Allotment 22, Section 250, Hohola, National Capital District.
The Background Facts
4.	It is common cause that the Appellant is the registered proprietor of the aforesaid piece of land.

5.	On or about the 14th of August, 2013, the Appellant sold and or purported to sell the aforesaid piece of land to the First Respondent. Ministerial approval for the sale of land was denied.

6.	The Appellant subsequently alleged that the First Respondent was in breach of the agreement and instituted proceedings against the First Respondent in WS No. 876 of 2017 – TST Development Ltd – Loha Customs & Forwarding Ltd (WS No. 876 of 2014) claiming damages.

7.	On or about the 9th of October, 2018, the Second Respondent made a decision forfeiting the Appellant’s title to the land on the basis that the improvement conditions were not satisfied and the Appellant failed to comply with the Notice to Show cause.

8.	On the 2nd of November, 2018, the Appellant being dissatisfied with the decision of the Second Respondent to forfeit the Appellant’s title to the land, filed an Appeal with this Court.

9.	The amended Appeal Book was filed on the 10th of March, 2020. Thereafter no action to progress the matter was undertaken by the Appellant, resulting in the matter being dismissed for want of prosecution on the 11th of November, 2021.

Submissions in a Nutshell

10.	The Appellant submits that having regard to Affidavits it filed in support of the application (Numbering about nine (9) in all) it has made out a case for the relief sought.

11.	The First Respondent opposes this application and contends in essence that the Appellant has not shown just cause for the relief sought, particularly because after filing the amended Appeal Book the Appellant did nothing to progress the matter for more than a year for no valid reasons.

12.	The law with respect to the factors the Court must take into account in considering an application to set aside an ex parte Order are fairly straight forward.
13.	These considerations or principles are:
a)	Why the judgment or order was allowed to be entered in the absence of the Applicant;
b)	If there is a delay in making the application to set aside, a reasonable explanation as to the delay; and
c)	That there is a reasonable explanation for the proceeding not being prosecuted with due diligence.
d)	The interest of justice.
14.	The Appellant has given an explanation why the Judgment or Order was allowed to be entered in its absence. This explanation has not been shown to be untrue.

15.	The explanation given by the Appellant is that soon after filing an amended Appeal’s Book a stalemate arose, that completely arrested the progress of the matter, for a year, between the Appellant erstwhile lawyers, O’Briens Lawyers, over moneys (fees) owing to the lawyers by the Appellants. 

16.	It is common cause that litigation in the form of taxation of costs and liquidation at the instance of O’Brien Lawyers against the Appellant served before the Courts for a period of over a year.
17.	The above difficulties were compounded further by the death of the Tin Siew Tan, who died on the 20th of July, 2020. Mr. Tin Siew Tan was the sole Shareholder and Director of the Appellant. His death frustrated the ability of the company to function and take decisions.

18.	The legal process to transfer the shares of the company to new shareholders following the death of the sole Shareholder and Director, to enable it to function and take decisions, took long. More significantly, letter of probate was granted on the 8th of November, 2021 and shares finally transferred to Barry James Tan and David Francis Tan on the 15th of November, 2021. This was after the ex parte Order for dismissal for want of prosecution was granted on the 11th of November, 2021. The relevant forms were submitted to the Investment Promotion Authority ((IPA) on the 21st of December, 2021.

19.	As indicated earlier there is no evidence to suggest that none of the above averments is incorrect.

20.	Having regard to all the above, I am persuaded that the Appellant has sufficiently and satisfactorily explained to this Court why the judgment or order was allowed to be entered in the absence of the Appellant/Applicant. I do not think that the Appellant intentionally delayed progressing this matter or that the delay imperilled fair trial of the substantive matter.

21.	In the case of Peter Norr v Dominic Ikamata [2005] SC815 the Supreme stated the position as follows:
“… the power of the Court to dismiss an action for want of prosecution should be exercised only when the plaintiff’s default had been intentional and contumelious or where there had been inordinate and inexcusable delay on his or is lawyer’s part giving rise to a substantial risk that a fair trial would not be possible …”. 
22.	Failure to take steps to progress matter after filing an Appeal Book can amount to lack of due diligence if an explanation for the delay is not given.

23.	The next consideration is whether there is any reasonable explanation for the delay in making the application to set aside.

24.	According to the Affidavit of Donald Kints filed on the 2nd February, 2022, a letter dated 23rd of November, 2021, attaching the Court Order of 11th of November, 2021 was posted on November 2021. The said letter was received on the 14th of December, 2021, according to the Affidavit of Leonard Tan filed on 22nd of December, 2021.

25.	It would also appear that the Appellant’s former lawyers O’Brien Lawyers delivered the documents related to this matter to the Appellant on the 15th of December, 2021.

26.	Based on the above, uncontradicted averments, which must be accepted as the truth, there was a delay of above three (3) days to make this application. The reasons offered for such delay as outlined above are reasonable.

27.	In my mind, the Appellant has succeeded to proffer a reasonable explanation for the appeal not being prosecuted with due diligence.

28.	I am also of the considered view that having regard to all the reasons that explained the delay in progressing this matter, which the Court has found as reasonable, together with what is at stake in the substantive dispute between the parties, being a piece of land, the interests of justice would lean in favour of the matter being allowed to proceed to finality than be terminated at this stage (dismissal for want of prosecution which was obtained ex parte).

29.	In all the circumstances, I am satisfied that the Appellant has made out a case for the relief sought.

30.	In the result, this Court orders as follows:
(1)	Pursuant to Order 12 Rule 8(3) and Order 4 Rule 49 (19)(4) of the National Court Rules (“NCR”) and the inherent powers of the Court, the ex parte order of this Honourable Court made on the 11th of November, 2021 that dismissed the proceeding for want of prosecution be set aside.
(2)	The matter be listed for directions.
(3)	Costs to be in the cause.
_______________________________________________________________

Lawyers for the Appellant:   N/A
Gibson Anis Lawyers:	Lawyers for the Respondents