SC2236

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 147 OF 2021

BETWEEN:
SANAMO CONSTRUCTION LIMITED AND ANOTHER
Appellants

AND
SUPER SERVICE LIMITED
Respondent

Waigani: Logan J
2022: 16th March

PRACTICE & PROCEDURE – application for leave to appeal – where each of the proposed grounds of appeal were questions of law or questions of mixed fact or law – where leave not required under s 14(1) of the Supreme Court Act 2012 – where application for leave incompetent – application dismissed

Facts:

Sanamo Constructions Limited and Polraven No. 48 Limited (collectively, the appellants) sought leave to appeal from a decision of the National Court. The proposed grounds of appeal alleged the learned primary judge erred in respect of questions of law or questions of mixed fact and law. 

Held:

1.	Where leave to appeal is unnecessary because the appeal lies as of right an application for leave to appeal is incompetent. 

Legislation:

Supreme Court Act 1975
Supreme Court Act 2012

Books:

L.B Mamu, Supreme Court (PNG) Practice and Procedure

Counsel:

Mr. P Wariniki, for the Appellants
Mr. J Sesege, for the Respondent

Oral decision delivered on
16th March 2022

1.	LOGAN J: Sanamo Construction Limited (Sanamo) and Polraven No. 48 Limited (Polraven) have applied by an application for leave to appeal, filed on 5 November 2021, for leave to appeal against orders made in the National Court on 30 September 2021 in WS 474 of 2019 (COMM).  The respondent to the application is Super Service Limited (Super Service).  

2.	Regard to the reasons for judgment given by the learned primary judge discloses that: 

a.	Super Service entered into a contract for the purchase of two blocks of land in Lae, Morobe Province from Sanamo as to the land described in State Lease volume 19, folios 242 and 245; and 
b.	Polraven as to the land described in State Lease volume 19, folios 243 and 244.  
3.	Those two blocks of land had previously had a single title description before Sanamo and Polraven had acquired them.  They were originally registered as allotments 1 and 2, section 111, Lae, Morobe Province.

4.	A contract for the sale of these leasehold interests was entered into on 12 April 2013.  The purchase price was: 

a.	as to Sanamo’s leasehold interests, K4 million; and 
b.	as to Polraven’s leasehold interests, K3 million.  
5.	The contract provided for a deposit in the total amount of K700,000.  

6.	On 26 March 2013, Super Service paid that sum into the trust account of the nominated stakeholder, the Professionals Real Estate.  The contract was apparently subject to a condition which materially required the obtaining of ministerial approval.  It also provided that settlement in respect of the sale of the leasehold interests occur within 14 days of the obtaining of ministerial approval and upon notifying that to Sanamo and Polraven. Ministerial approval was obtained on 15 April 2013.  

7.	It is not clear from his Honour’s reasons for judgment when that approval was notified to Sanamo and Polraven.  What is clear is that settlement under the two contracts did not occur in accordance with the terms of those contracts.  Without more, one might have expected that there would be a refund readily of the K700,000 deposit by the direction of Sanamo and Polraven to the Professionals to pay that sum to Super Service. Unfortunately, that did not occur. 
 
8.	There were parallel judicial review proceedings instituted by a party, not a party to the contract, Mapai Transport Limited, OS (JR) 704 of 2013 instituted on 2 October 2013, well after one might have thought the contract ought to have been completed and if not, the deposit refunded.  That appears to have distracted the parties to the contract from basic principles of contract law.

9.	In any event, it was not until 1 September 2019 that a requisition claiming the return of the deposit together with conveyancing costs thrown away in the amount of K180,806 and interest.  The proceeding so instituted was not one based on the breach of the contract for sale of land, but rather some alleged tort.  As it transpired, the present respondent, Super Service, succeeded in obtaining orders for the payments of damages in an amount corresponding with the deposit not refunded and the conveyancing costs thrown away.  

10.	There was a limitation actions point agitated before the learned primary judge.  His Honour took the view that the limitation period did not run until after the disposal of a slip rule application in an appeal in the Supreme Court against orders made in the National Court judicial review proceeding.  

11.	Nothing in respect of the disposal of the present leave to appeal application should in anyway indicate, with all due respect, my concurrence with the approach taken to the limitation point by the learned primary judge.  In the ordinary course of events, one might have thought that the limitation period ran from the time when the contract was breached.  

12.	However, that may be, it is quite apparent from the nature of the case specified in paragraph 2 of the application for leave to appeal that each of the proposed grounds is either a question of law or a mixed question of law and fact.  In those circumstances, and as was raised by  Super Service, no leave to appeal was or is required in respect of any of the points issues so to be agitated by Sanamo and Polraven.  Section 14(1) of the Supreme Court Act 2012 provides that an appeal lies to this court from the National Court on a question of law or on a mixed question of law and fact. It is only where a point sought to be raised is a question of fact that leave to appeal is required: see s 14(1)(c) of Supreme Court Act 1975.  

13.	The position then is that the application for leave to appeal filed by Sanamo and Polraven is not necessary.  Moreover, no notice of appeal has been filed within the 40 day period specified in s 17 of the Supreme Court Act.  

14.	There is a very long line of cases in this jurisdiction which establishes that, where leave to appeal is unnecessary, an application for leave to appeal is incompetent.  These cases are very usefully collected and discussed in Mr L.B Mamu’s work: Supreme Court (PNG) Practice and Procedure in the annotations to s 14 and the related rule of court, Order 7 in Part 3 of the Supreme Court Rules.

15.	It is not necessary the purposes of dealing with the present application to rehearse those cases at length or even at all.  The long and the short of it is this application is just not competent.  Moreover, more than 40 days have now passed between when the order sought to be challenged was made and today.  The application for leave to appeal must be dismissed.  

16.	As it transpires, that outcome, whilst necessary, very probably in any event renders no substantial injustice to either Sanamo or Polraven. It is not clear that there was ever a limitation point.  Clarity in that regard would be depended on evidence, as to when the notice of ministerial approval was given.  Putting that aside, any appeal is not against reasons for judgment but rather, orders.  It may well be, if there were an appeal that the orders made by the learned primary judge would be upheld, for reasons, with respect, other than those given by the primary judge.  But that would leave in place, nonetheless, those orders.

17.	I make these additional observations, lest it be thought by those in control of Sanamo or Polraven that the disposal of this application for leave to appeal on a procedural basis, flowing from express requirements in the Supreme Court Act and the Supreme Court Rules, in some way, rendered, in a practical sense, an injustice upon them.  I very much doubt that is the case in this instance.  

Orders

1.)	The application for leave to appeal be dismissed.
2.)	The first and second applicants pay the respondent’s costs of and incidental to the application for leave to appeal, to be taxed if not agreed. 

__________________________________________________________________
Wariniki Lawyers and Consultants: Lawyers for the Appellants	
Twivey Lawyers: Lawyers for the Respondent