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Pusal v Kipongi [2024] PGNC 213; N10868 (19 June 2024)

N10868

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 458 of 2023 (CC4)

BETWEEN:

RALPH PINDA PUSAL

Plaintiff

AND:

ERIC KIPONGI

Defendant

Waigani: Coates, J

2024:13^th & 19^th June

SUCCESSION – Standing to pursue alleged estate property – Standing to seek to set aside land transfer – Valid contract before death – No will – No legal nexus between claimant and transfer – Dismissal

Cases Cited:

Counsel:
Mr Ralph Pinda Pusal, Plaintiff in-person
Mr Samson Phannaphen, for Defendant

DECISION

19th June 2024

1. COATES, J: The plaintiff seeks declarations which would invalidate the sale and transfer to the defendant of real property sold by the plaintiff’s father before his death.
   
2. He seeks that the contract, transfer instrument and title transfer be declared null and void.
   
3. If successful, the land would be brought back into the estate of his deceased father.
   
4. There is some confusing evidence about the beneficiaries; one document stating that the plaintiff is the sole beneficiary (paragraph 3, submission for the plaintiff, filed by leave 12 June 2024), but another referring to beneficiaries, including the plaintiff (paragraph 6, affidavit of the plaintiff, sworn 22 May 2024) – the inconsistency not being material to the matter before the court.
   
5. Letters of Administration, the court is told, have been obtained.
   
6. The Public Curator is the administrator of the deceased’s estate.
   
7. The plaintiff occupies the property with others, which had always been the family home.
   
8. The plaintiff appeared unrepresented but had access to legal advice and provided a written submission prepared by a lawyer.
   

FACTS

9. The plaintiff’s late father owned and occupied the property described as Section 364, Allotment 17, Vol 89, Folio 61 at Hohola on the Gerehu estate in Port Moresby.
   
10. He occupied it for more than 30 years, the exact time not being stated.
    
11. He acquired the property from the National Housing Corporation.
    
12. The following dates, where stated are relevant to the issues arising in this matter.
    
13. On 5 April 2020, a contract for the sale of the land by the plaintiff’s father to the defendant was executed.
    
14. The purchase price was K1.00.
    
15. On 27 September 2021, transfer was effected.
    
16. The plaintiff’s father had been ill for some years.
    
17. On 19 October 2021, the plaintiff’s father died.
    
18. He had no will.
    
19. The plaintiff is his only biological child.
    
20. The Plaintiff is now aged 18.
    
21. On a date unknown, the Public Curator obtained Letters of Administration and the court was told that the subject land was not included in the estate of the late father.
    

THE BACKGROUND CLAIMS

22. For the substantive application, the defendant’s case will be that he had known the deceased for years, the deceased being related to the defendant’s late guardian mother (who died in 2020).
    
23. On a date not stated, the deceased asked the defendant to move in and care for him.
    
24. The deceased had been sick for about 15 years.
    
25. The defendant cared for him for about 10 years and stated the deceased was partly paralysed and had limited movement.
    
26. He said he was the only one who cared for him and it was a father-son relationship.
    
27. He said the deceased decided to transfer the property to him.
    
28. He said after his death, the deceased’s relatives collaborated and threatened him so he left the property, fearing for his safety.
    

PROCEEDINGS

29. On 11 May 2023, the defendant brought an action for ejectment of the deceased’s relatives.
    
30. On 28 September 2023, the plaintiff filed the Writ seeking the declarations invalidating the whole of the dealing with the land.
    
31. The defendant’s ejectment proceeding was subsequently dismissed as the apparent case was determination of the status of the ownership of the deceased’s land.
    
32. The defendant has a cross-claim to take possession of the property.
    

THIS NOTICE OF MOTION

33. On 26 April 2024, the defendant filed a Notice of Motion, seeking the plaintiff’s case be dismissed as the plaintiff has no standing.
    
34. That is the subject matter of this judgement.
    

LEGAL ISSUES

35. The defendant relies on Order 12 Rule 40 (1)(b) and (c) of the National Court Rules 1983, that the plaintiff lacks standing by operation of s.44 of the Wills, Probate and Administration Act 1966.
    
36. Order 12 Rule 40 addresses the court’s powers, in situations where there is no reasonable cause of action [(1)(a)], the proceedings are frivolous or vexatious [(1)(b)] or they are an abuse of process [(1)(c)].
    
37. The court is asked to apply the last two of those concepts to s.44 of the Wills, Probate and Administration Act 1966, which states:
    

“Until probate or administration is granted, the property of a deceased person vests in the Public Curator, in the same manner and to the same extent as formerly personal estate in England vested in Ordinary”.

38. The submission is that the Public Curator did not seek to include the property in the deceased’s estate under the Letters of Administration and could not do so because it was not part of the estate.
    
39. It was put that the Public Curator has the standing to conduct matters on behalf of the estate and the Public Curator has determined that the real property is not part of the estate, such decision being based on the title being in the defendant’s name.
    
40. Further, and importantly, the submission was made that it is open to the Public Curator to reconsider any evidence the plaintiff may put in relation to his case that there has been a transfer and registration of the land by fraud.
    
41. The court was told that the Public Curator had been put on notice as to the plaintiff’s application.
    
42. The written submission of the plaintiff opposes dismissal of the matter upon reliance of s.44 of the Wills, Probate and Administration Act 1966 on the ground that the section cannot be applied here, as it is accepted that the property at the time of the death was not part of his father’s estate.
    
43. It was put that he otherwise has standing to bring his Writ on the ground that the property was part of his late father’s estate before its transfer to the defendant and its subsequent registration.
    
44. The submission then goes on with a statement that fraud is a serious offence and the plaintiff ought have his opportunity to protect his interests. Fraud of course would arise under the Land Registration Act 1981.
    

ANALYSIS

45. What is fairly raised on the evidence and submissions, although not identified as such, is the indefeasible nature of land title, and who may challenge that under Torrens title legislation, to come within the legislated exceptions.
    
46. Both parties accept that the title is indefeasible but take different paths as to whether the plaintiff has standing.
    
47. The plaintiff’s case is that he has standing simply because the land was part of his father’s estate before it was transferred and he has a right to pursue assets where the dealings are suspicious and fraud is an exception to indefeasibility.
    
48. His case does not rely on the s.44 provision which passes the estate to the Public Curator to distribute under the Letters of Administration – because he accepts the property was legally not part of the deceased’s estate.
    
49. He is in fact stating that he has a right to bring proceedings because he is a beneficiary to the estate and he is alleging fraud due to the transfer.
    
50. Under the Land Registration Act, fraud can defeat indefeasibility – but there is no general right given to all to allege fraud on a transfer of title.
    
51. There must be a sufficient connection or nexus to a litigant.
    
52. The plaintiff alleges he has that connection because he was the deceased’s only son and so under the intestacy laws, he will be a beneficiary.
    
53. But sufficient connection or nexus involves more – it also involves the nature of the requirements of the law in the specific jurisdiction sought to be invoked.
    
54. Both the plaintiff and the defendant are correct to accept that the land is outside the deceased’s estate.
    
55. The plaintiff though is incorrect in his view that being a beneficiary to an estate gives him standing to bring this action.
    
56. The reason for that in this particular case is that the transfer occurred when the deceased was alive, which is a different proposition from it being transferred after death, when the lawful authority to deal with estate property lies with the administrator, and that is the Public Curator.
    
57. The law presumes that people have capacity to conduct their affairs and the assumption does not allow interference without evidence of incapacity or an act such as fraud.
    
58. At the time of death, an estate is distributed to beneficiaries. Generally, property which was in the possession of the deceased at the time of death and which is then found to be in the possession of another not being the trustee, is liable to be investigated. Generally, property owned but passed to others before death is not the subject of investigation unless some special circumstances exist, addressed below, can be shown.
    
59. The difficulty the plaintiff now faces is that his father transferred the land to the defendant before death, and although the title was transferred only one month before his death, the contract for sale was executed about 18-months earlier.
    
60. That contract is nothing more than the father deciding to do as he pleases with his property, which is a right he had, and such right could not be interfered with at the time or subsequently.
    
61. Upon registration of the title, his interest ceased under s.26 of the Land Registration Act.
    
62. Once his interest ceased and passed to the defendant, the land was never going to be part of his estate when he died.
    
63. Only the father as the registered proprietor, or a person properly exercising a power of attorney for him, had the standing to bring an action pursuant to s.33 of the Land Registration Act for fraud.
    
64. No such action occurred because the father was and is presumed to have capacity to deal with his title.
    
65. There is no connection between the contract for the land and transfer of title completed while the father was alive and the administering of his estate now, in light of s.26 of the Land Registration Act which acts to cease and pass title.
    
66. The plaintiff, despite being the only biological child, had no right at the time of the contract and passing of title and has no right now, at law, to bring this application, at least on the evidence presented.
    
67. A simple allegation of fraud, nor a suspicion not enough and there must be some evidence materialising upon death to give standing.
    
68. Any challenge to be successful would require special circumstances, and could possibly involve the existence of a will showing the plaintiff was the proposed beneficiary to the land, or perhaps customary ownership, or perhaps properly admissible expert medical evidence to show his father did not have capacity to make his decisions at the time the contract was executed or perhaps a successful prosecution for fraud. I note there has been no police investigation despite complaint being made.
    
69. The plaintiff then is in no special position, he is a mere bystander, which would give him standing to bring this matter, and he is in no position to retrospectively challenge his father’s actions to deal with the title to the property as he saw fit.
    
70. It is unfortunate for the plaintiff, and there is an uncalled-for statement in the defendant’s case that the plaintiff did not care for his father. The statement should not have been made, as it could not be missed that the plaintiff was a child for most of the time the defendant claims he looked after his father.
    
71. Be that as it may, reluctantly the Notice of Motion filed 26 April 2024 will be upheld, but pursuant to Order 12 Rule 40 (1)(a), that no reasonable cause of action was disclosed.
    
72. I note that the defendant will now seek orders for the plaintiff to vacate the house.
    
73. In the light of this decision, that should be a matter negotiated by the parties.
    

ORDER

74. The Notice of Motion filed 26 April 2024 is upheld and the Writ of Summons with Statement of Claim No. 458 of 2023 is dismissed, the plaintiff not having standing pursuant to s.33 of the Land Registration Act 1981 or pursuant to s.44 of the Wills, Probate and Administration Act 1966 and consequently no reasonable cause of action pursuant to Order 12 Rule 40 (1)(a) of the National Court Rules 1983.
    

Judgment accordingly.
______________________________________________________
Ralph Pinda Pusal: Plaintiff in Person
Lhyrn Lawyers: Lawyers for Defendant