N10359

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WPA NO. 102 OF 2022 (IECMS-CC4) (No. 1)

IN THE MATTER OF WILLS PROBATE ADMINISTRATION ACT CH, 291

BETWEEN:
IN THE MATTER OF THE ESTATE OF LATE MICHEAL YAI-PUPU, LATE OF KUPIYAPOS VILLAGE, WAPENAMANDA DISTRICT, ENGA PROVINCE, PAPUA NEW GUINEA

IN THE APPLICATION OF EMMANUEL YAIPUPU
Applicant

V

KING LLOYD YAI-PUPU
Respondent

Waigani: Anis J
2023: 23rd and 26th June

APPLICATION TO SET-ASIDE – ex parte interim orders made to appoint interim Administrator – source – Order 12 Rule 8(3) – National Court Rules – no return date for ex parte interim orders – whether orders have been irregularly entered – other considerations – consequential orders – exercise of discretion

Cases Cited:

Application by Emmanual Yai-Pupu (2023) N10343
Jaro Investment Ltd v. National Housing Corporation [2019] N8092
Makop v. Billy Parako (2004) N2593

Counsel:

A. Waingi, as briefed counsel for the Applicant
S Wanis, for the Respondent

RULING

26th June,  2023

1.	ANIS J:  I heard submissions from the parties in regard to term 3 of the plaintiff’s Notice of Motion (filed 3 May 2023) (NoM/application) on 23 June 2023.  

2.	I reserved my ruling to today at 3pm.  This is my ruling.

BACKGROUND

3.	The applicant is one of the sons of the Late Michael Yai-Pupu.  The Late Michael Yai-Pupu died intestate leaving behind his estate that is worth millions of kina (Estate/deceased).  The applicant files this proceeding under the provisions of the Wills, Probate and Administration Act Chapter No. 291 (WPAA) for grant of Letters of Administration or for appointment as the administrator of the Estate.

4.	The substantive application is contested.  On 18 May 2023, I granted leave to remove the earlier respondent Jessie Yai-Pupu from the proceeding.  Later on, and on 21 June 2023, I made a further order joining the defendant to the proceeding in a written decision.  See: Application by Emmanual Yai-Pupu (2023) N10343.  These eventuated from the relief sought in the NoM.  But that is not all.  On 23 June 2023, I heard submissions from the parties in relation to the 3rd relief, that is, on whether I should set aside an interim ex parte order that I had made on 1 May 2023 (orders of 1 May) where I have appointed the applicant as the interim administrator of the Estate.

5.	Term 2 of the orders of 1 May reads:

“2.	Pursuant to Order 12 Rule 1 of the National Court Rules and the court’s inherent jurisdiction under section 155(4) of the Constitution, an order that the Plaintiff/Applicant be the interim administrator of the estate of the late Michael Yai-Pupu, pending determination of the substantive application for administration.”

SOURCE

6.	The source or jurisdictional basis of the NoM is Order 12 Rule 8(3) of the National Court Rules (NCR).  There is no contest by the parties on this rule.  Nevertheless, I find the source to be in order thus I will proceed on that premise.

COMMON GROUND

7.	The parties are at common ground on this material fact which is that no return date was set at the time the Court granted the orders of 1 May.

ISSUES

8.	In my view, the main issue is whether the orders of 1 May were irregular.  Subject to my findings, I may proceed to consider the requirements of a regularly entered order and determine whether the defendant has established them.

SECTION 53 - WPAA

9.	I note that the application for grant of the orders of 1 May was moved and granted by this Court primarily premised on s.53 of the WPAA.  The section reads, in part:

53.  ADMINISTRATION PENDING LITIGATION.

(1)  Where legal proceedings–
(a)	concerning the validity of the will of a deceased person; or
(b)	for obtaining, recalling or revoking a grant,
are pending, the National Court may grant administration of the estate of the deceased to an administrator.

(2)  An administrator appointed under Subsection (1)–
(a)	has all the rights and powers of a general administrator other than the right of distributing the residue of the estate; and 
(b)	is subject to the immediate control of the National Court; and
(c)	shall act under the direction of the Court.

(3)  The National Court may assign, out of the estate of the deceased, to an administrator appointed under Subsection (1) such reasonable remuneration as the Court thinks proper.

IRREGULARITY

10.	In my earlier decisions including Jaro Investment Ltd v. National Housing Corporation [2019] N8092 on matters such as this, I have often referred to Justice Manuhu’s decision in Makop v. Billy Parako (2004) N2593 which differentiates in simple terms, regular and irregular orders.  His Honour stated and I quote:

In applications like this, the initial inquiry is whether the exparte order was made regularly or not.  Where an exparte order has been made irregularly, the only just remedy is to rectify the irregularity by setting aside the exparte order.  Non-compliance with an important procedural requirement under the National Court Rules is usually considered as an irregularity, which generally results in an exparte order being set aside.  On the other hand, where an exparte order has been made regularly or in compliance with relevant procedural requirements, setting it aside is dependent on what is just and fair in all the relevant circumstances; and, what is just and fair is dependent on the reasons for the non-appearance which permitted the matter to proceed exparte; the merits of the applicant’s case; and, the promptness of the application to set aside exparte order.  

[Underlining mine]

WAS THE ORDER IRREGULAR?

11.	I ask myself this.  Were the ex parte orders of 1 May regular or irregular?  Was the order made without regard to important or relevant procedural requirements of the rules or laws on the face of it that it ought to be set aside?

12.	I do not think the issue is a difficult one.  My answer to that is, “yes, the orders of 1 May were irregular or irregularly entered.”  I say for this reason.  Although I had powers under s.53(1) of the WPAA to grant administration pending litigation, the orders were made ex parte.  And Court rules, in particular, Order 4 Rule 49(5)(ii)(e) of the NCR that deals with urgent notice of motions, states:

(e)  Upon hearing the application, the Judge may make orders including:
i.	An order dispensing with requirements of service;
ii.	An interim order which provides some solution, until the return date;
iii.	Service of the Order, the Originating Process, Motion, Supporting Affidavit, Undertaking as to Damages (where appropriate) and other documents filed in the proceedings, on or by a specified date.
iv.	Giving "liberty to apply";
v.	Giving a specific return date, when the interim orders become returnable before the Motions Judge.
vi.	Affidavit of service of the documents referred to in above.
(f) A party shall not and the judge shall not make any order in terms of the substantive relief sought in the originating process.  

[Underlining mine]

13.	I note that exercise of my powers under sub-rule (e) is discretionary where it states at the very beginning that the the Judge may make orders including….  So, what this means is that I may or may not have to comply with all the 6 requirements therein.  However, I note that in the present case, these were not addressed either in the notice of motion that was filed by the applicant nor counsel at the time.  In my view, because these considerations were not addressed, it meant that I had exercised my discretion without regard to them, thus, that, in my view, constitutes a valid ground of irregularity.  

14.	I am therefore satisfied, premised on Order 4 Rule 49(5)(ii)(e)(ii), (iv) and (v) that the orders of 1 May were irregularly entered, thus must be set-aside.

15.	There is a second reason why the orders may be regarded as irregular which is this.  In granting the exparte orders of 1 May, no submissions and considerations were given by the applicant to s.53(2) of the WPAA.  Subsection 2 is mandatory and must be read together with sub-section 1.  It reads,

(2)  An administrator appointed under Subsection (1)–
(a)	has all the rights and powers of a general administrator other than the right of distributing the residue of the estate; and 
(b)	is subject to the immediate control of the National Court; and
(c)	shall act under the direction of the Court.

[Underlining mine]

16.	I note that the application did not ask for and no further orders were made by this Court after it had granted the orders for administration under subsection (1) in favour of the applicant.  This appears to be an irregularity on the face of s.53(2) of the WPAA.  As such, this Court is obliged to set aside the orders of 1 May.  I uphold submissions by the defendant in that regard.

SUMMARY

17.	I am therefore minded to grant the defendant’s NoM. 

CONSEQUENTIAL ORDERS

18.	The effect of my ruling means that the applicant Emmanual Yai-Pupu shall no longer be the interim Administrator of the Estate of the Late Michael Yai-Pupu.  His administration status ceases immediately as of today.

19.	I will also make consequential orders regarding any changes that may have been made by the interim administrator, that is, to the bank accounts (or records) of the deceased as well as the company records and accounts of companies that were owned by the deceased or those where the deceased had held shares in.  Any changes made by the applicant on them shall, as a consequence of this ruling, be reversed. 

COST

20.	Since I have granted all the relief that were sought in the NoM, I will order the applicant to pay of the defendants’ cost of the NoM, on a party/party basis to be taxed if not agreed.

ORDERS OF THE COURT

21.	I make the following orders:

1.	The Ex parte Court Order of 1 May 2023 is set aside.

2.	For clarity and avoidance of doubt, the applicant’s interim appointment as the Administrator of the Estate of the Late Michael Yai-Pupu ceases immediately as of the date of this Court Order.

3.	Consequently:

(i)	any changes that were made by the interim administrator to any of the bank accounts of the deceased including the accounts of the companies that the deceased owned or had interests in; and
(ii)	further, any changes that are made by the interim administrator to any of the company records of those companies that were owned by the deceased or where the deceased had interests in including shares,

shall be restored to their original status or their status as if no such changes had been made as at the date of the demise of the deceased.

4.	The applicant shall pay the defendant’s cost of the application on a party/party basis to be taxed if not agreed.

5.	Time for entry of these orders is abridged to the date and time of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly

________________________________________________________________
Corrs Chambers Westgarth:	Lawyers for the Applicant
Solomon Wanis:	Lawyers for the Defendant