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Chris v Kaeo [2024] PGNC 8; N10650 (24 January 2024)

N10650

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 1205 OF 2019 (CC2)


BETWEEN:
RHONDA CHRIS
Plaintiff


AND:
DIM WIN KAEO
First Defendant


AND:
NATIONAL HOUSING CORPORATION
Second Defendant


Waigani: Shepherd J

2022: 14th March
2024: 24th January


LAND – dispute over residential property owned by National Housing Corporation – grant of tenancy by the Corporation – whether grant of tenancy was in breach of s.35 of National Housing Corporation Act 1990 – whether offer of option to purchase the property was in breach of ss. 37 and 38(1)(b) of Act – whether circumstances of grant of interests in property by the Corporation were so unlawful, irregular and unsatisfactory as to constitute constructive fraud - constructive fraud proven.


GOVERNMENTAL BODIES – National Housing Corporation – letting and sale of dwellings – National Housing Corporation Act 1990 – Corporation’s
duty to comply with provisions of Act when deciding whether to let or sell a dwelling and to whom a dwelling can be let or sold.


REMEDIES – relief to be granted when constructive fraud established
– declaratory relief – discussion of consequential orders to be made.


EVIDENCE – inadmissibility of affidavits and documents infringing hearsay rules of evidence – inadmissibility of unauthenticated documents.


Cases Cited:
Andakelka Ltd v Petronas Ltd (2010) N3976
Baulana v Post & Telecommunication Corporation (1996) N1473
Chris v Kaeo and National Housing Corporation (2019) N8163
John v Nomenda (2010) N3851
Lerro v Stagg (2006) N3050
Masit v Uma (2021) N8703
Paga No 36 Ltd v Eleadona (2018) SC1671
Samiak v Mosero (2011) N4916 (Kawi J).
Simbuaken v Egari (2009) N3824
Takori v Yagari (2008) SC905
Tikili v Home Base Real Estate Ltd (2017) SC1563
United States of America v WR Carpenter (Properties) Ltd [1992] PNGLR 185
Vailala v National Housing Corporation (2017) N6598
Wapua v Lopkop (2009) SC1048


Counsel:
Ms Adjit Joanne Taio, for Plaintiff
Mr Gibson Bon, for First Defendant
Mr Anthony Luke, for Second Defendant


DECISION


24th January 2024


  1. SHEPHERD J: This case concerns a tenancy dispute regarding a block of residential land at Nine Mile Settlement, National Capital District which is owned by the National Housing Corporation (NHC). The plaintiff asserts that she has resided on the property for more than 20 years, as from June 2003, which is when her late husband signed an NHC tenancy agreement for the property. The plaintiff is aggrieved that subsequent to the death of her husband in 2018 the NHC has reversed a resolution to transfer ownership of the property to her and has instead granted a tenancy and option to purchase the property to the first defendant who is the sister of the plaintiff’s late husband. The first defendant claims that she has a legal interest in the property as a result of her acquisition of the property from a former tenant of the property in 2002. The first defendant alleges that the plaintiff’s late husband was the caretaker of the property for her. The first defendant, supported by the NHC, insists that the plaintiff should vacate the property and allow the first defendant to take possession. Against this, the plaintiff seeks declaratory and other relief from the Court which, if granted, would entitle the plaintiff to remain on the property and negate the first defendant’s claim to have an enforceable interest in the property.

THE PLAINTIFF’S CLAIM


  1. The plaintiff’s writ of summons with endorsed statement of claim was filed on 2 October 2019. It was filed for the plaintiff by the Public Solicitor.
  2. The property the subject of this litigation is described as Allotment 36 Section 3, Milinch of Granville, Fourmil of Moresby, National Capital District (the property). It comprises an area of 582 square metres and is referred to in Survey Plan Catalogue No. 49/1696 registered by the Surveyor-General on 19 January 1988. It is located at Nine-Mile Settlement near Bomana, NCD.
  3. It is not in dispute between the parties that at all material times the owner of the property was, and still is, the NHC. A formal State lease for the property has yet to be issued and registered by the Registrar of Titles.
  4. The plaintiff (Rhonda) has pleaded the undermentioned matters, among others, in her statement of claim, which I have paraphrased to some extent to give better clarity:

(9) The NHC’s tenancy agreement with Dim was entered into by them in circumstances which were tantamount to constructive fraud and abuse of process. Rhonda pleads the following particulars of constructive fraud:

(a) the NHC, with full knowledge of its resolution made in February 2018 to transfer the property to Rhonda, failed to issue a new tenancy agreement to Rhonda because of “misrepresentation, and through undue influence”.

(b) the NHC had not issued any notice in the preceding 15 years to terminate her late husband’s tenancy agreement for the property.

(c) the NHC failed to provide Rhonda with any reasons or grounds to justify the termination of Rhonda’s [presumed] tenancy agreement prior to entering into a new tenancy agreement with Dim, thereby denying Rhonda natural justice.

(d) there was collaboration between NHC and Dim through misrepresentation and undue influence [presumably by Dim] which resulted in Dim acquiring a tenancy agreement dated 14 May 2019 in respect of the property.


  1. In para. 19 of her statement of claim, Rhonda pleads that Dim’s tenancy agreement of 14 May 2019 should be “nullified, revoked or cancelled” on grounds of fraud and misrepresentation and that a new tenancy agreement over the property should be “awarded” by the NHC to Rhonda.
  2. Rhonda concludes her statement of claim by seeking by way of substantive relief orders declaring that the tenancy agreement in respect of the property entered into by the NHC and Dim on 14 May 2019 be nullified and that the NHC enter into a replacement tenancy agreement with Rhonda. She seeks general damages and costs as well as a permanent injunction to restrain the NHC and Dim from evicting her from the property, together with “such other orders as the Court deems fit”.
  3. Dim has been represented throughout in this proceeding by Gibson Bon Lawyers, who filed a notice of intention to defend on 15 October 2019. The NHC has been represented by various of its legal officers attached to the NHC’s legal unit.
  4. On 15 October 2019 Gibson Bon Lawyers filed a motion for Dim seeking summary dismissal of this proceeding under Order 12 r.40 (1) of the National Court Rules (NCR). The motion also sought an order that Dim be allowed to take immediate possession of the property to the exclusion of Rhonda.
  5. Dim’s motion came on for hearing on 25 October 2019 but was dismissed by me on 20 December 2019 because Order 12 r.37 NCR prohibits summary disposal of a proceeding where a plaintiff’s claim is based on allegations of fraud. A further reason for dismissal of Dim’s motion was because the motion had failed to expressly specify which of the alternative grounds set out in Order 12 r.40 (1) could be said to apply to this proceeding. Further observations in relation to this proceeding are set out in my interlocutory decision delivered on 20 December 2019 which gave my reasons for declining to grant Dim’s motion filed on 15 October 2019. The decision is published as Chris v Kaeo and National Housing Corporation (2019) N8163.
  6. The interim order which was made in this proceeding on delivery of my interlocutory decision of 20 December 2019 was lengthy. Apart from declining to grant Dim’s motion for summary dismissal, the order of 20 December 2019 extended an earlier interim order which had been made on 25 October 2019 restraining the NHC and Dim from taking any further steps to have Rhonda evicted from the property. The restraining order has continued down to the present time.
  7. The interim order of 20 December 2019 also directed the then Acting Managing Director of the NHC, Ms Elizabeth Bowada, to attend before the Court on 14 February 2020 at 1.30 pm to produce to the Court for inspection by respective counsel for Rhonda and Dim all documentary records held by the NHC in respect of the property for the period 1 January 2000 to 1 December 2019 in connection with:

(a) the NHC’s tenancy arrangements and arrangements for the sale or transfer of the property to any person, including Rhonda, her late husband and Dim; and

(b) the various meetings held by officers of the NHC with Rhonda and with Dim in 2018 and 2019; and

(c) NHC’s rental invoices and receipts issued for rental invoices (if any) in respect of the property for that period of 19 years.


  1. Ms Bowada duly appeared in person before the Court in the afternoon of 14 February 2020 and produced a copy of an affidavit which she had sworn and filed that morning. She deposed in her affidavit to the effect that annexed to it were true copies of such of the documents referred to in the Court’s order of 20 December 2019 as were available but that she would produce the NHC’s file for the property to the parties if they wished to inspect it.
  2. On 14 February 2020 I ordered the NHC to formally serve copies of Ms Bowada’s affidavit on the other parties and adjourned the case to 10 March 2020 for further directions after directing Rhonda to file and serve by 28 February 2020 an affidavit in answer to Ms Bowada’s affidavit.
  3. Thereafter a series of directional hearings took place which resulted in an order being made on 11 June 2020 for the case to be referred to mediation by an internal mediator. The mediation, which was unsuccessful, was attempted on two occasions.
  4. The first mediation conference was confirmed to take place by accredited mediator Deputy Chief Magistrate His Worship Mark Pupaka on 11 August 2020. The mediation conference had to be abandoned when the NHC’s legal officer Mr Anthony Luke failed to attend, despite Mr Luke being on notice of the date and time of that mediation conference.
  5. The second mediation conference was conducted by accredited mediator His Honour Justice Iova Geita on 24 and 25 November 2020. Rhonda and Dim attended that mediation, as did Mr Luke for the NHC. Despite lengthy negotiations at mediation, Rhonda and Dim were unable to resolve their differences and the case returned to Court to enable this proceeding to progress to trial.
  6. However, one positive outcome of the second mediation was that all three parties to this litigation, with the assistance of the judge mediator, agreed that there are five issues, referred to later in this decision, which require determination by the Court.
  7. Further directional hearings were held which, after numerous adjournments caused by the repeated non-attendance of counsel for the NHC, culminated in the case being set down for trial on 14 March 2020. It was ordered that the trial was to proceed by way of affidavit evidence subject to each party’s right of cross-examination.

THE TRIAL


  1. The trial took place on 14 March 2020. Rhonda was represented at trial by Ms Taio of the Public Solicitor’s Office. Dim was represented by Mr Bon of Gibson Bon Lawyers. The NHC was represented by Mr Luke of the NHC’s legal unit.
  2. Rhonda relied on four affidavits which were admitted into evidence at trial. Her evidence comprised two of her own affidavits, one filed on 4 October 2019 (Exhibit P1) and the other on 19 February 2020 (Exhibit P2) as well as the affidavit of Mr Newman Siki filed on 27 January 2021 (Exhibit P3) and the affidavit of Mr Peter Injia filed on 27 January 2021 (Exhibit P4).
  3. Mr Siki and Mr Injia are longstanding neighbours of Rhonda and her late husband. They reside on allotments that are immediately adjacent to the property the subject of this litigation. The affidavits of Mr Siki and Mr Injia support Rhonda’s case. Mr Siki and Mr Injia have both deposed that they are both aware that Dim only expressed any interest in the property following the death of Chris Kaeo in 2018. Prior to that Mr Siki and Mr Injia never saw Dim anywhere near the property.
  4. The case for defendants Dim and the NHC hinges on two affidavits which were admitted into evidence at trial: Dim’s affidavit filed on 15 October 2019 (Exhibit D1) and the affidavit of Ms Elizabeth Bowada filed for the NHC on 14 February 2020 (Exhibit NHC1).
  5. Rhonda was cross-examined at trial by Mr Bon on her affidavit filed on 4 October 2019. No cross-examination of Dim or other deponents on their affidavits was sought by Ms Taio or by Mr Luke. Counsel for each party then spoke to their respective written submissions. On completion of the trial, I reserved and adjourned the case for delivery of the Court’s decision, which is set out below.

ISSUES


  1. I observe that one unusual aspect of this litigation is that prior to trial neither Dim nor the NHC ever filed a formal defence in response to Rhonda’s statement of claim.
  2. However, it is clear from the judge mediator’s certificate which was filed by him on 25 November 2020 on completion of the second mediation that Rhonda, Dim and the NHC had all agreed at mediation that the following five issues, which I have renumbered, require determination by the Court:

(1) Whether the mode of proceedings commenced by way of Rhonda’s writ of summons is competent?

(2) Whether Rhonda has standing to have instituted this proceeding in the absence of grant of letters administration arising from the death of her husband who died intestate in 2018?

(3) Whether Dim had a legal interest in the property before the NHC issued her with a tenancy agreement in mid-2019?

(4) Whether the meeting held by the NHC which granted a tenancy agreement to Dim in mid-2019 was lawful?

(5) Whether the tenancy agreement dated 14 May 2019 which was issued by the NHC to Dim was fraudulently obtained?


  1. The mediator’s certificate was filed by the judge mediator pursuant to Rule 9(5) of the former ADR Rules 2010 in Form 2 of Schedule 2 of those Rules. Form 2 required a mediator to certify what the issues were that the parties had agreed should be determined by the Court where the parties had not been able to resolve those issues at mediation.[1]
  2. This decision will therefore address all five of the issues which the parties agreed at the second mediation should be substantively determined by the Court.

Issue 1: Is this proceeding competent?


  1. Order 4 r.1 NCR states that subject to the provisions of any Act, there are only two modes of commencing proceedings in the National Court: by writ of summons or by originating summons.
  2. The writ of summons procedure requires pleadings, which consist of the plaintiff’s statement of claim followed by the filing of a defence by a defendant and then an optional reply by the plaintiff. There are then a series of interlocutory procedures which, if invoked by a party, must be observed before a trial date can be allocated under the Rules. Time limits apply. In contrast, the originating summons procedure is a means of obtaining a hearing date at short notice for the Court determine to an issue or issues where there is unlikely to be substantial dispute on the facts and where the issues are relatively well defined.
  3. Order 4 r.3 NCR gives guidance as to when the originating summons procedure is more appropriate than a writ of summons for commencement of proceedings. Rule 3 provides:

3. Where plaintiff may choose:

(1) Except in the case of proceedings which by these Rules or by or under any Act are required to be commenced by writ of summons, proceedings may be commenced either by writ of summons or by originating summons as the plaintiff considers appropriate.


(2) Proceedings—

(a) in which the sole or principal question at issue is, or is likely to be, one of the constructions of an Act or of any instrument made under an Act, or of any deed, will, contract or other document, or some other question of law; or

(b) in which there is unlikely to be a substantial dispute of fact; or

(c) in which a person is authorized by an Act, regulation or by these Rules to make an application to the Court or a Judge with respect to a matter that is not already the subject matter of a pending cause or matter, and no other mode of making the application is prescribed by that Act, or regulation or by these Rules,

are amongst those which are appropriate to be commenced by originating summons unless the plaintiff considers the proceedings more appropriate to be commenced by writ of summons.


  1. The principles relating to choose of mode of commencement of proceedings in the National Court are well established.
  2. Proceedings by originating summons are unsuitable where there are numerous issues of fact requiring determination by the Court. Where such an application is made by originating summons, it prevents the determination of the issues and the Court may dismiss the proceeding: United States of America v WR Carpenter (Properties) Ltd [1992] PNGLR 185 (Brown J).
  3. The test to apply to determine the appropriate mode of commencing proceedings relates to the kinds of relief being sought. If the primary forms of relief being sought are orders in the nature of declarations and injunctive orders and not orders in the nature of prerogative orders such as certiorari or mandamus as provided for by the judicial review procedure in Order 16 NCR, a plaintiff may choose to commence suit by using the judicial review procedure under Order 16 r. 1(2) NCR, alternatively by the originating process of writ of summons or originating summons under Order 4 r.3 NCR: Samiak v Mosero (2011) N4916 (Kawi J).
  4. Counsel for Dim has submitted that because Rhonda has alleged that the tenancy agreement between the NHC and Dim signed on 14 May 2019 was obtained by fraud, the decision of the NHC to grant that tenancy agreement was an administrative decision on the part of the NHC which should more properly have been challenged by Rhonda by way of the judicial review procedure provided for in Order 16 NCR and not by way of the writ of summons procedure allowed for under Order 4 NCR. Counsel has urged the Court to therefore dismiss this proceeding as an abuse of process.
  5. In support of this submission, counsel for Dim has relied on the decision in Baulana v Post & Telecommunication Corporation (1996) N1473 where Sawong J dismissed a proceeding which had been commenced by way of writ of summons procedure as an abuse of process because the statement of claim disclosed no cause of action. His Honour also found that the plaintiff had sued the wrong party.
  6. Baulana’s case is of no assistance to the submission made by counsel for Dim for this issue. The facts in Baulana’s case are totally different to those presented in the current suit and have no bearing on the situation where it is contended for the defence that a claim in the National Court should more properly be made in the National Court by judicial review rather than the writ of summons procedure.
  7. Counsel for Dim in pursuing the abuse of process argument has also relied on brief pronouncements made by Narokobi J in Masit v Uma (2021) N8703 where a claim commenced by way of originating summons under Order 4 NCR was dismissed because the plaintiff sought (1) a judicial declaration that a finance company’s repossession of a truck was unlawful, and (2) a consequential order that the finance company release the truck back to the plaintiff. His Honour found that the originating summons was an inappropriate mode for the commencement of that proceeding because the evidence established that there was a substantial dispute on the facts, that the plaintiff’s cause of action should have been based on the tort of negligence to claim damages rather than declaratory relief, and that therefore the plaintiff’s suit should have been commenced by way of pleadings using the writ of summons procedure under Order 4 NCR, not the alternative originating summons procedure.
  8. Masit’s case has no relevance to the present situation where Rhonda has pleaded her case in a statement of claim alleging fraud and where the statement of claim was endorsed on her writ of summons filed on 2 October 2019.
  9. Counsel for the NHC echoed the submission made by counsel for Dim except to say that Rhonda had the option to institute this proceeding by way of judicial review under Order 16 NCR or by way of originating summons. No case authority was cited by counsel for the NHC to support the proposition that an originating summons was the most appropriate mode of commencing this suit if judicial review were not sought.
  10. In the present case, it is clear from the conflicting and often vague evidence of all parties that each party’s version of core events going as far back as 2003 is very much in dispute. Moreover, in the present case Rhonda is not seeking relief in the nature of certiorari or any of the other two prerogative writs referred to in Order 16 r.1(2)(a) NCR. Instead, Rhonda is seeking relief in equity by way of a judicial declaration with consequential orders. It was therefore always open to Rhonda to choose to commence this proceeding by way of writ of summons and not by judicial review. As this is not a case where the construction of any statute or document is the principal issue but rather where the Court is being called upon to determine many disputed facts, I find that Rhonda’s commencement of this suit by way of writ of summons was entirely appropriate and is therefore competent.
  11. There is a further and even more conclusive reason why this proceeding is competent. Order 4 r.2(1)(b) NCR states:

2. Where writ of summons required

(1) Proceedings shall be commenced by writ of summons—

....

(b) where a claim made by the plaintiff is based on an allegation of fraud.

[emphasis added]


  1. Compliance with Order 4 r.2(1)(b) NCR is mandatory. A plaintiff pleading fraud has no choice but to commence proceedings by writ of summons: Andakelka Ltd v Petronas Ltd (2010) N3976 (Davani J). The corollary to this is that an action founded on constructive fraud commenced by originating summons is liable to be dismissed: Wapua v Lopkop (2009) SC1048 (Injia CJ).
  2. It was said by Kandakasi J (as he then was) in Lerro v Stagg (2006) N3050 at para. 14 that for a proceeding to be summarily determined under Order 12 r.40 NCR as an abuse of process, the pleadings must be so bad or vague that they cannot be cured by a request or orders for further and better particulars or amendment under Order 8, rr. 36, 50 or 51 NCR. His Honour’s statement of principle in this regard was expressly affirmed by the Supreme Court in Takori v Yagari (2008) SC905 at para. 25.
  3. Rhonda has pleaded constructive fraud in the opening text of para. 14 of her statement of claim. She has then given particulars in para. 14(i) to (iv) of her statement of claim in support of that allegation. If Dim or the NHC considered that those particulars were inadequate, they should have requested further and better particulars or sought an order for further and better particulars under Order 8 r.36(1) NCR. Neither Dim nor the NHC did so.
  4. As this suit involves contentious facts, allegations of fraud and a claim for a judicial declaration with consequential orders including damages, I find that the writ of summons procedure was the most appropriate mode of originating process for Rhonda to have chosen to commence this proceeding. This suit is competent. Issue 1 is resolved in favour of Rhonda.

Issue 2: Locus Standi


  1. It is contended for both Dim and the NHC that Rhonda lacks standing to have commenced this proceeding because she has not been granted letters of administration of her husband’s intestate estate.
  2. In support of this submission, counsel for Dim and NHC refer to the tenancy agreement with the NHC which Rhonda’s husband Chris Kaeo signed back in 2003. They say that on the death of Chris Kaeo in 2018, any interest he may have had in the property reverted back to the NHC. Therefore, Rhonda cannot rely on that purported tenancy agreement to found her claim to have an interest in the property. Both counsel then confusingly appear to say, or at least imply, that Rhonda, by allegedly trying to rely on that tenancy agreement, is attempting in this suit to represent the intestate estate of her late husband to somehow enforce the tenancy agreement in her favour as the entitled widow. It is said that as Rhonda has not applied for and has not been granted letters of administration of her late husband’s estate, she therefore has no standing to be pursuing these proceedings, which should be dismissed as an abuse of process.
  3. This submission made for Dim and the NHC is entirely misconceived. Nowhere in Rhonda’s statement of claim does she expressly plead that she is claiming an interest in the property by reference to the tenancy agreement which her late husband signed with the NHC in 2003. The gist of Rhonda’s cause of action, as pleaded in paras. 10, 12 and 14 of her statement of claim, is that senior officials of the NHC wrongly revoked a resolution they had made in February 2019 to transfer title to the property to Rhonda and instead entered into a tenancy agreement with Dim on 14 May 2019 in suspicious circumstances which amount to constructive fraud.
  4. Rhonda has not pleaded that she is seeking relief on behalf her late husband’s estate to enforce a tenancy agreement which her late husband signed with the NHC in 2003. Rather, Rhonda is challenging in this proceeding the validity of the tenancy agreement which the NHC “awarded” to Dim in mid-2019 on the ground that it was obtained by fraudulent means. There is therefore no question that Rhonda was required in law to have obtained grant of letters of administration of her late husband’s estate before commencing this proceeding. The contention that Rhonda has no standing to have commenced this suit is baseless. It has no merit at all. Issue 2 is resolved in favour of Rhonda.

Issue 3: Did Dim have a legal interest in the property prior to being issued with a tenancy agreement by the NHC in mid-2019?

  1. Dim’s explanation as to how she reputedly acquired an interest in the property is set out at paras. 3 to 7 of her affidavit filed on 15 October 2019, which explanation is reproduced below (with several editorial corrections):

“ 3. I am legal tenant of the property described as Section 03, Allotment 36, 9 Mile, National Capital District, having brought the property from the previous Tenant in 2002 and my position is was recently confirm[ed] by the National Housing Corporation on the 14th May 2019.


4. After buying the property, I allowed my late brother, Chris Kaeo to be the caretaker on the property with others whilst I was living around the same place but at different location with my family (after marriage).


5. At all material times I was not aware that my late brother illegally took out the Tenancy with the National Housing Corporation after misleading them to believe he brought off the property sometimes in 2003.


6. We discovered that after I wrote to have the Tenancy transferred to me after the demise of my late brother.


7. At the same time, the plaintiff who is the wife of my late brother insisted that she should get the property which led to so many mediations being conducted which all confirms that I should be the legal tenant.”


  1. I observe that no contract for sale in respect of Dim’s alleged purchase of the property from a prior NHC tenant in 2002 was adduced in evidence for Dim at trial. She does not even disclose the name of that vendor in her affidavit. Dim’s affidavit does not explain why she also asserts that she is the “legal tenant” of the property if, as she says, she purchased the property from a prior NHC tenant, which in itself implies ownership of the property, not a tenancy situation.
  2. The allegation in para. 5 of Dim’s affidavit that the NHC was “misled” by Rhonda’s late husband when he obtained his tenancy agreement for the property in 2003 is conjecture. I place no weight on that allegation at all.
  3. Dim failed to annex to her affidavit a copy of the letter which she says in para. 6 of her affidavit she wrote, presumably to the NHC in the latter half of 2018, to obtain the transfer to her of the tenancy of the property. A copy of that letter, if it exists, was never produced in evidence at the trial by either Dim or the NHC.
  4. As to the matters referred to by Dim in para. 7 of her affidavit, no particulars are given by her of the “many mediations” which allegedly confirmed that she was the legal tenant of the property prior to the NHC executing a tenancy agreement in her favour on 14 May 2019.
  5. When addressing the issue as to whether Dim had any legal interest or other form of interest in the property prior to her signing of the tenancy agreement with the NHC dated 19 May 2019, counsel for the NHC, supported by counsel for Dim, relied on the affidavit of Ms Bowada who, as I have already observed, was the NHC’s former Acting Managing Director.
  6. Set out below are the relevant portions of the account which Ms Bowada gives in her affidavit as to the NHC’s records for the property and of the dispute between Rhonda and Dim:

“ 3. Except where stated to be on information or belief, I have personal knowledge of the facts deposed to herein and belief same to be true in every particular.


4. The subject property, Section 3 Allotment 36 (Bomana), 9 Mile Settlement, National Capital District is an unregistered [State] Lease administered by the second defendant (NHC) herein, which falls under the Self Help Scheme (SHS) or Settlement Scheme specifically intended for low income earners.


5. The property file of the subject property kept under the custody [of the] Second Defendant discloses that prior to 1st January, 2000, Mr Thomas Lausi Siviri was the original registered tenant over the property, under the Self Help Scheme.

Annexed hereto and marked with letter “A” are true necessary copies affirming Thomas L Siviri’s occupancy.


6. Sometime in 2000, Mr Siviri (original tenant) sold [sic] the subject property to one Paul Itaki. Thereafter in 2002, the purported purchaser, Mr Itaki resold the same property to Dim Kaeo, who is the approved tenant and 1st Defendant herein. Ms Dim Kaeo then invited her brother, Chris Kaeo (deceased) to live with her on that property.


7. Thereafter, the 1st Defendant (Dim Kaeo) appointed [her] brother (Chris Kaeo) to occupy the property as a caretaker whilst she deserted to live with her newly married husband elsewhere.


8. It is verily believed that Chris Kaeo intentionally defrauded his sister (Dim Kaeo) and have the tenancy signed under his name. These were done without the consent of the purchaser, Mr Dim Kaeo.


9. Furthermore, without any (NHC) official and/or any supportive documents, a new purported tenancy agreement dated 5th June 2003 was executed under Chris Kaeo’s name.

Annexed hereto and marked with letter “B” is a true copy of the said tenancy agreement dated 5.6.2003.


10. There is no documentary evidence(s) of any rental payments whatsoever from that purported tenant, Chris Kaeo (deceased) and/or his wife (Plaintiff) who is an invitee over the Second Defendant’s property.


11. Our property records confirm that both Plaintiff and the First Defendant herein separately approached the Second Defendant’s (NHC) office or employees in anticipating of executing a new tenancy agreement as ordered by the Port Moresby District Court on 25.3.19 in the proceeding styled as DC No. 859 of 2018: Rhonda Chris v Diim Kaeo.


12. The Corporation (NHC) through its authorised officer: conduct[ed] a site inspection over the property in question on the 20.6.18 and subsequently submitted on 17.8.18 [in] order to guide the Corporation in its prudent decision making.

Annexed and marked with letter “C” is a true copy of the Site Inspec[tion] Report dated 20.6.18.


13. Taking all those into account, the NHC called and/or invited for a round table discussions with relevant (both) Parties on three (3) different occasions. However, the Plaintiff didn’t turn up on the first two occasions except the third (final) round table discussion period which ... eventuated on 1.11.18.

Annexed hereto and marked with letter “D” is a true copy of one of the roundtable meeting notices dated 9.10.18.


14. However, for the first time that both the contesting parties (Plaintiff & 1st Defendant) including the NHC’s residential representative at 9 Mile Settlement (Mark Opop) attended the meeting at the Second Defendant’s Office at Tokarara Headquarters on 1st November, 2018 in anticipation of amicably resolving the tenancy issues.

Annexed hereto and marked with letter “E” is a true copy of the roundtable meeting minutes dated 1.11.18.


15. Eventually, after taking into account all the documentary evidences and reports, [the NHC] made a considerable decision to execute new tenancy agreement which would put at ease the dispute surrounding tenancy issues.


16. Hence, on 14th May, 2019, the Corporation eventually executed new tenancy agreement with the First Defendant (Dim Kaeo).

Annexed hereto and marked with letter “F” is a true copy of the SHS Tenancy Agreement dated 14.5.19.

17. Subsequently, the First Defendant settled among others the outstanding Land Rents and Land Development Cost as requested by the Corporation.

Annexed hereto and marked with letter “G” is a true copy of an offer to settle outstanding land rents & development costs dated 15.5.19 and NHC Official receipt dated 15.5.19 respectively.


18. I am aware that all the necessary steps have been procedurally and/or administratively complied with, having the tenancy issues resolved. “


  1. I observe that, as with Dim’s affidavit, Ms Bowada’s affidavit is rife with unsubstantiated matters which are conjecture on her part. Ms Bowada also makes extensive reference in her affidavit to matters and documents which are hearsay and which clearly offend the Court’s rules of evidence.
  2. My next observation is that Ms Bowada’s affidavit is poorly drafted and lacks precision regarding the matters she has deposed to. The affidavit itself is clearly self-serving of the NHC’s decision to grant Dim the tenancy agreement it executed on 14 May 2019. Having now had the opportunity to review the whole of the parties’ evidence adduced at trial, I consider it to be bordering on insolence for Ms Bowada to have used expressions in her affidavit such as the NHC executed the tenancy agreement of 14 May 2019 with Dim “to put at ease the dispute surrounding tenancy issues” and that Ms Bowada was “aware that all necessary steps have been procedurally and/or administratively complied with, having the tenancy issues resolved”. Ms Bowada’s affidavit was signed after this litigation was well under way. Ms Bowada well knew of the nature of Rhonda’s dispute with Dim. Yet Ms Bowada put her signature to an affidavit which is defective in so many ways and which affidavit attempts to persuade the Court that the NHC had complied with all procedural and administrative steps required of the NHC to have the dispute “resolved”. This very litigation attests to the fact that the steps taken by the NHC to grant Dim a tenancy agreement on 14 May 2019 did not resolve the dispute between the two in-laws but only exacerbated that dispute.
  3. A further objection is that Ms Bowada deposed at the commencement of her affidavit that she had “personal knowledge” of facts which are set forth in her affidavit except where facts were known by her to be facts of which she was informed or where she believed them to be facts.
  4. A perusal of Ms Bowada’s affidavit shows that almost every fact she has deposed to has not been qualified by her to be a fact of she has no first-hand knowledge but which she only believes to be true. Examples of this are paras. 6 and 7 of Ms Bowada’s affidavit where she refers to matters which allegedly took place in 2002 and which thereafter purportedly resulted in Dim allowing Rhonda’s late husband to occupy the property as a caretaker when Dim left the property to reside with her husband elsewhere. There is no possible way Ms Bowada could have had personal knowledge of the matters she has deposed to in paras. 6 and 7 of her affidavit. She was obviously informed of those matters either by Dim or by others.
  5. The only passage in Ms Bowada’s affidavit where she expressly signals that she did not have personal knowledge but only a belief in what she was saying on oath is in para. 8 where she states: “It is verily believed that Chris Kaeo intentionally defrauded his sister (Dim Kaeo), and have the tenancy signed under his name”. Such a statement has no probative value whatsoever and I ignore it.
  6. Ms Bowada refers in para. 12 of her affidavit to an unidentified officer of the NHC as having conducted a site inspection of the property on 20 June 2018. A copy of that officer’s site inspection report is annexure “C” to Ms Bowada’s affidavit.
  7. Perusal of annexure “C” indicates that it is a report of a site inspection of the property which apparently took place on 20 June 2018 by the NHC’s Settlement Officer Mr Sam Lyakin. A copy of an internal NHC memo accompanying the report indicates that the report was submitted by Mr Lyakin to NHC’s Manager-NCD/Central on 17 August 2017, almost 3 months after the site inspection took place. The report, which is barely intelligible in parts, is replete with hearsay comments, inaccuracies and unfounded assumptions such as:

“ Requesting Client: Diim Kaeo and Rhonda Cris – confirmed as current tenants but Diim is the genuine tenant/purchaser of said property from the former tenant. ”

...

“ Recommendation: a) Diim Kaeo purchased that property [and] put late Cris Kaeo (brother) as caretaker. As such, decease did not develop that land nor settling the land rents to amend records as legal tenant/purchaser or apply for land State Lease Title. Thus, Rodah Cris’ claim just after death of her husband has no weight but she could remain under the tenure of the purchaser.”

  1. To my mind, Mr Lyakin’s site inspection report is of negligible evidentiary use, except to the extent that the report confirms that at the time of site inspection on 20 June 2018 there was a 2-bedroom house and a ‘canteen” on the property as depicted in two photographs attached to the report, that the perimeter boundary of the property had corrugated iron fencing and that the property had electricity, water and sewerage systems connected to it. The report gives no indication as to what the likely market value of the property with its improvements might have been as at June 2018 or what the likely cost of construction of the residence, ‘canteen’ and perimeter fencing might have been, given that it is not disputed by the NHC that the property was vacant land back in 2002 and early 2003. I note that from the photographs attached to the copy of the site inspection report that the ‘canteen’ is actually a small trade store which is located inside the property, adjacent to the entrance gate.
  2. A further objection to Ms Bowada’s affidavit is that attached to it as annexure “E” is a copy of a purported set of minutes of a meeting which senior officers of the NHC supposedly held with Rhonda, Dim and others from 9-Mile Settlement on 1 November 2018. The minutes do not record Ms Bowada as herself having been present at that meeting. Ms Bowada was not an attendee at that meeting and she should not have annexed a copy of those minutes to her affidavit as evidence of a record of the matters which were discussed at that meeting. The copy of the minutes annexed to Ms Bowada’s affidavit is clearly a hearsay document concerning matters which are hotly in dispute and which concern core issues in this proceeding. The copy of the minutes is inadmissible. I take no cognizance at all of its contents.
  3. There are numerous cases in our jurisdiction which deal with the inadmissibility of hearsay statements and hearsay documents. One such case is Simbuaken v Egari (2009) N3824 (Davani J) where the plaintiff sued for damages for personal injuries sustained in a motor vehicle accident. The Court in its decision held, in relation to the admissibility of medical evidence, that a medical report must be attached to the affidavit of the medical practitioner who prepared the report. If this is not done, the affidavit of some other person attaching a medical report not prepared by the deponent will be declared inadmissible. Further, that in the event that such an affidavit is tendered into evidence, the Court should not place any weight on it. In support of this ruling the Court referred to the distinction that exists between original evidence and hearsay evidence, whether oral or documentary, and cited the following statement by Professor Cross:[2]

“ Express or implied assertions of persons other than the witness who is testifying, and assertions in documents produced to the court when no witness is testifying, are inadmissible as evidence of the truth of that which was asserted.”


  1. I remind the NHC that where it seeks to rely during court proceedings on site inspection reports, minutes of meetings and other documents which go to purported proof of core issues, it is essential for evidentiary purposes that wherever possible the authors attach copies of their documents to affidavits sworn by them. This is because documents sought to be tendered into evidence by persons who are not their authors are unauthenticated documents and those documents are, as a general rule, inadmissible as to proof of the matters they refer to unless the documents come within one or more of the exclusions to the hearsay rule such as exceptions provided by the doctrine of res gestae. Furthermore, where the author of an important document which would ordinarily require authentication is, by reason of infirmity, absence from the jurisdiction, death or other cause, unavailable to attest to the document’s authenticity, proper explanation of that unavailability should be given on oath by affidavit or oral testimony by some responsible person as to why there is no reasonable prospect of the author being available to authenticate his or her report by affidavit or to produce his or her document to the Court at a hearing or trial and be available for cross-examination.
  2. Referring back to Ms Bowada’s affidavit, I do not say that the whole of her affidavit and its annexures are inadmissible. I will allow as admissible, as reasonable proof of the matters to which they refer, the following documents which are annexed to Ms Bowada’s affidavit:

Annexure “A” – copies of three documents relating to prior tenant Mr Thomas Lausi Siviri’s entitlement to occupancy of the property between 1984 to 2000.


Annexure “B” – copy of tenancy agreement for the property under the NHC’s Self Help Housing Scheme dated 5 June 2003 between the NHC and Chris Kaeo, the stated rental being K50 per year.


Annexure “F” – copy of tenancy agreement for the property under the NHC’s Self Help Housing Settlement Scheme dated 14 May 2019 between the NHC and Dim, no amount of annual rental for the property having been stated in the agreement.


Annexure “G” – (1) copy of letter dated 15 May 2019 from Kenneth Cook, Acting Managing Director of the NHC to Dim giving notice that the property has been approved for disposal under the Government’s Self Help Housing Settlement Scheme and that a total of K2,547 was owing to the NHC for annual rents (K1,200), land development cost (K1,147) and legal fees (K200), with a further K200 being payable for “land transfer fee” (presumably payable to the Registrar of Titles) and K300 for “Settlement Association fee”.

(2) copy of the NHC’s receipt dated 15 May 2019 to Dim for payment of a total of K2,547.00 for her payment of outstanding annual rents, land development cost and legal fees in respect of the property.


(3) copy of Port Moresby Settlements Association Inc. receipt dated 15 May 2019 to Dim for payment of Settlement Association fee of K300.

  1. However, the totality of the affidavit evidence adduced for Dim and the NHC at trial falls far short of proving that Dim had any legal or equitable interest in the property prior to the NHC executing the purported tenancy agreement for the property in her favour on 14 May 2019.
  2. Counsel for Dim was unable at the trial to produce any evidence of a contract for sale, tenancy agreement or indeed any documentation at all such as receipts for payment of NHC annual rent and other outgoings to suggest that in 2002 she had purchased the property outright from a prior tenant who allegedly had title to the property in 2002 or that in 2002 or at any other point in time she had somehow obtained a transfer or assignment in her favour of a pre-existing NHC tenancy agreement for the property from a prior NHC tenant.
  3. If there were persons from the 9-Mile Settlement who could vouch for the matters so superficially deposed to by Dim in her affidavit as to the arrangements she allegedly made in 2002 to acquire from a prior NHC tenant what she refers to as her “legal title” to the property, none of those persons gave evidence at trial in an endeavour to substantiate her story.
  4. Furthermore, even if Dim had been able to produce any documentation to support her contention that she purchased the property in 2002 from a prior NHC tenant, she would also have been required to produce evidence at trial that the alleged transaction had the written consent of the NHC. This is because s.65 of the National Housing Corporation Act 1996 states:

65. RESTRICTION OF TRANSFER, ETC.

Where, without the consent in writing of the Corporation, a person purports to—

(a) sell or contract to sell; or

(b) mortgage; or

(c) lease or sub-lease; or

(d) transfer; or

(e) assign,

any property in which the Corporation has an interest under this Part, the sale, contract, mortgage, lease, sub-lease or assignment is void and of no effect.


  1. Despite having had ample opportunity to do so, neither Dim nor the NHC produced the slightest shred of documentary evidence at trial to suggest that the NHC had given written consent to whatever transactions concerning the property Dim alleges she entered into prior to 2003 with an NHC tenant.
  2. The only solid evidence before the Court as to who was entitled to be on the property with the knowledge of the NHC for the 15 year period from 2003 to 2018 is the copy of the tenancy agreement between the NHC and Chris Kaeo dated 5 June 2003 which is annexure “B” to Ms Bowada’s affidavit.
  3. There was no proof adduced for Dim or the NHC at trial that the NHC had ever taken steps prior to Chris Kaeo’s death in 2018 to terminate his tenancy agreement. There was no proof of invoices having been issued by the NHC to Chris Kaeo for annual rents, despite the Court’s interim order made on 20 December 2020 that required Ms Bowada to produce to the Court, among others, all documentary records of rental invoices issued by the NHC in respect of the property for the period 1 January 2000 to 1 December 2019.
  4. I find, on the evidence presented at trial that neither Dim nor the NHC were able to establish that Dim had any legal or equitable interest in the property that preceded or succeeded that of the 2003 tenancy agreement which Chris Kaeo had with the NHC prior to his death in 2018.
  5. The only interest in the property which was proven for Dim was the interest she prima facie acquired as tenant under the contested tenancy agreement she signed with the NHC on 14 May 2019. This is a matter which I examine in more detail under Issue 5.
  6. In the result, I find for the reasons given that there was insufficient proof adduced at trial that Dim had any enforceable legal or other interest in the property prior to that which she asserts she acquired under the purported tenancy agreement she signed with the NHC on 14 May 2019. Issue 3 is answered in the negative.

Issue 4: Was the meeting held by the NHC which granted a tenancy agreement to Dim lawful?


  1. There is no admissible evidence that was adduced for Dim and the NHC at trial of any meeting convened by executives of the NHC at which it was decided by them to “award” to Dim the tenancy agreement which was subsequently signed by the NHC and Dim on 14 May 2019.
  2. The only evidence of such a meeting is the inadmissible testimony of Ms Bowada that a meeting of senior NHC officials was held on 1 November 2018. The minutes of that meeting, annexure “E” to Ms Bowada’s affidavit, have already been ruled by me to be inadmissible because they fatally infringe the rules of evidence relating to hearsay documents.
  3. Dim, through her lawyers, failed to ensure that proof of what occurred at any meeting which may have been held by senior NHC officials on or after 1 November 2018 was available at trial in admissible form. Such proof could readily have been obtained by Dim’s lawyers or the NHC’s legal team by the filing of an affidavit from one of the senior officials who were present at whatever meeting had decided to grant a tenancy agreement and option to purchase the property to Dim, the affidavit explaining how that meeting was convened, who attended, what transpired during the course of that meeting, what resolutions or decisions were taken at that meeting and attaching to the affidavit a copy of the minutes of the meeting verified by the deponent as being either a true record of the meeting he or she attended or correcting any content of the minutes that may have been required to accord with the deponent’s own notes or recollection of the meeting.
  4. Alternatively, Dim’s lawyers or the NHC’s legal team could have caused a summons pursuant to Order 11 rr. 2 and 5 NCR to have been issued by the Registrar to one or more of NHC’s senior officials who attended whichever meeting had been held for the purpose of granting Dim a tenancy agreement and option to purchase the property. The most appropriate summons would have been a summons in Form 46 of Schedule 1 NCR for the NHC official or officials to produce all documents relevant to that meeting and to attend Court to give evidence in relation to that meeting.
  5. As there is no admissible evidence before the Court as to any meeting of NHC officials or executives which may have taken place between late 2018 and mid-June 2019 at which it was decided to grant Dim a tenancy agreement as well as an option to purchase the property, or how that meeting was convened, who attended, what materials were before it and what transpired at it, I am judicially unable to determine any issue going to the legality or otherwise of that meeting. Because of the absence of admissible and credible evidence as to that meeting, Issue 4 is not susceptible of meaningful resolution by the Court. No determination of Issue 4 can be made.

Issue 5: Was the tenancy agreement dated 14 May 2019 which was issued by the NHC to Dim fraudulently obtained?


  1. The question of whether the tenancy agreement that was signed by Dim and the on 14 May 2019 was fraudulently obtained is the central issue in this proceeding.
  2. The evidence establishes that not only did the NHC grant Dim a two-year tenancy over the property on 14 May 2019, but the very next day the NHC also offered Dim an option to purchase the property. It is these two transactions which, if they were valid and without taint of fraud, would entitle Dim on transfer of the NHC’s ownership of the property to her to obtain indefeasible title to it.
  3. The general principle underlying the Torrens title system of land registration which has been adopted in Papua New Guinea is that once a person or entity is registered under the Land Registration Act 1981 as the proprietor of an estate or interest in land, an indefeasible title is conferred on that registered proprietor, subject only to the exceptions in s.33(1) (protection of registered proprietor) of the Land Registration Act, including s.33(1)(a), which states: “The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except ... in the case of fraud”.
  4. The history of the case law in connection with what is necessary to establish “fraud” for the purposes of defeating indefeasibility of title under s.33(1)(a) of the Land Registration Act is extensive, well known and need not be repeated at length here. The case authorities can be summarised by stating that “fraud” means actual fraud or constructive fraud. Where constructive fraud is alleged, it must be proven that the circumstances in which a registered proprietor has acquired title are so unsatisfactory, irregular or unlawful as to warrant the setting aside of title: see for example Tikili v Home Base Real Estate Ltd (2017) SC1563 (Cannings, Yagi, Neill JJ) and the many cases referred to therein. To this must be added the proviso that the person whose title is impugned on the ground of fraud, whether it be actual fraud or constructive fraud, must be complicit in the fraud: Paga No 36 Ltd v Eleadona (2018) SC1671 (Collier, Neill, Liosi JJ).
  5. A particularly instructive case on constructive fraud is John v Nomenda (2010) N3851 (Makail J). The facts in that case were that the plaintiff and the defendants each claimed that they had purchased the same property from the NHC. The property was earmarked for sale under the Government’s ‘Home Give Away Scheme’, the result of a decision of the National Executive Council made in December 1992. The property was sold by the NHC to the defendants for K1,000 and on 1 August 2003 a State lease was registered in the joint names of the defendants. However, the plaintiff had been the NHC’s tenant and occupant of the property since 1997 and was an approved purchaser of the property under the Government’s ‘Home Give Away Scheme’. She had paid all compulsory fees including rental arrears and transfer fees of K2,173.74 in November 2002 and had been paying modest rent while waiting for the contract for sale to be forwarded to her by the NHC so that she could sign and return it to enable transfer of the title to the property to her to be registered. Against this, the husband and wife defendants claimed that they had no knowledge when they entered into their contract to purchase the property from the NHC that the plaintiff was already the approved purchaser of the property under the Government’s Home Give Away Scheme. The defendants relied on s. 33 of the Land Registration Act Ch 191 to assert that they had indefeasible title by virtue of being the registered proprietors of the State lease for the property.
  6. Makail J ruled on the evidence that the defendants’ denial that they had no knowledge of the plaintiff’s interest in the property was not credible. His Honour made a finding that when the defendants signed the contract for the NHC’s sale of the property to them they already knew that the property was not vacant and that the plaintiff was the sitting tenant or occupant of the property, yet the purchasers still went ahead and purchased the property with the assistance of officers of the NHC. His Honour made the following finding at para. 52 of the reported decision:

“ I find there were serious or flagrant breaches of the guidelines under the Government’s Home Give Away Scheme and statutory procedures and requirements under the National Housing Corporation Act, 1990 in the acquisition of the property and registration of title, which go to the root of the title, tantamount to fraud or constructive fraud. In my view, such breaches or irregularities are so serious that they affect the registration of the title to the [defendants] and this Court, in good conscience will not allow that to happen. For all the foregoing reasons, I also find the [defendants] and the NHC guilty of constructive fraud.”


His Honour granted the relief sought by the plaintiff and issued a judicial declaration to the effect that the defendant’s alleged title to the property was void on the ground of fraud. Further orders were made which required the defendants to deliver up physical possession of the property to the plaintiff, cancellation by the Registrar of Titles of the defendants’ title to the State lease and the managing director of the NHC was ordered to prepare a contract for sale and forward it within one month to the plaintiff to execute so as to facilitate the transfer and registration of title to the property to the plaintiff.


  1. The statutory procedures and requirements under the National Housing Corporation Act 1990 (the Act) regarding the sale of properties owned by the NHC referred to by Makail J in John v Nomenda in 2010 are still in full force and operation today.
  2. Section 1 of the Act defines the term “dwelling”, in relation to letting or selling of a property, as including land on which a dwelling is situated but does not otherwise include land. In other words the term “dwelling” where used in the Act does not include land which is vacant. There must be a dwelling of some description on the land before it can lawfully be let or sold by the NHC.
  3. Section 35 of the Act relates to the NHC’s powers of letting of dwellings. Section 35 states:

35. LETTING OF DWELLINGS

(1) Subject to this section the Corporation may let a dwelling to an eligible person or an approved applicant.

(2) The letting shall be at the economic rent of the dwelling and in accordance with any conditions that the Corporation thinks proper.

(3) the Corporation shall not let a dwelling under this section to any person unless the Corporation is satisfied that he intends to use the dwelling as a home for himself or his dependants and for no other purpose.


  1. The NHC’s separate power to sell and the procedures which govern the sale of real estate properties that are owned by the NHC are set out in ss.37 to 48 of the Act.
  2. Section 37 of the Act authorizes the NHC to only sell a dwelling to persons or entities who come within three very specific categories:

37. SALE OF DWELLINGS

Subject to this Division, the Corporation may sell a dwelling vested in it to—

(a) an eligible person; or

(b) an approved applicant; or

(c) a person who exercises the option offered to him under Section 38(1).


  1. Section 1 of the Act defines an “eligible person” as meaning a person declared under Section 3 to be eligible for assistance under Part IV, which relates to the assistance which the NHC can give to prospective tenants and purchasers of dwellings vested in the NHC. Section 3 provides that the NHC may declare a person to be a person eligible for assistance under Part IV by reason of that person’s limited means, present unsuitable housing or any other circumstances considered relevant by the NHC. However, for a person to be an “eligible person”, a formal declaration of eligibility of that person with reasons given must first be made by the NHC.
  2. The term “approved applicant” is defined in s.1 of the Act as meaning the State, a Provincial Government, a Local-level Government, certain governmental instrumentalities and an organization or person declared under s.2 to be an approved applicant for the purposes of the Act. Section 2 of the Act gives the Minister having the portfolio for State Housing the power to declare an organization or person to be an “approved applicant” for the purposes of the Act.
  3. The third category of persons to whom the NHC may sell a dwelling, being the category referred to in s.37(c) of the Act, is provided for in s.38(1) which states:

38. OPTIONS TO PURCHASE

(1) After a tenancy agreement has been in force for two years between the Corporation and a tenant, the Corporation may, in its discretion, offer to—

(a) the tenant; or

(b) the spouse, widow or widower of the tenant; or

(c) the tenant and his spouse as joint tenants; or

(d) the tenant and his next of kin,

an option to purchase the dwelling the subject of the agreement at a purchase price specified in the option, subject to the conditions imposed by this Division.

[emphasis added]


  1. In Vailala v National Housing Corporation (2017) N6598 (Cannings J) the facts were that the plaintiff claimed to be the sitting tenant of a residential property at Boroko, NCD which was administered by the NHC. However, the NHC sold the property to a politician who became the registered proprietor of the State lease when it was issued. The defendants, who comprised the NHC, the politician, the Secretary of the Department of Lands and Physical Planning and the State, argued that the politician had indefeasible title. They said that there was no fraud as the NHC had acted fairly and in accordance with its governing legislation in selling the property to the politician, who was a bona fide purchaser who had purchased the property in good faith. The defendants claimed that the plaintiff was an unfaithful tenant of the NHC who at one stage had become an illegal occupier of the property and that all declaratory and other relief sought by the plaintiff should be refused.
  2. After careful consideration of the evidence in Vailala’s case, Cannings J found it proven that the politician had acquired title to the property in circumstances that were unlawful and so unsatisfactory and irregular as to be tantamount to fraud. His Honour held that the case was one of “fraud” for the purposes of s.33(1)(a) of the Land Registration Act. His Honour’s reasons for making a finding of constructive fraud included these:

(1) The sale to the politician was unlawful because the politician was not one of those persons to whom the NHC was authorized by s.37 of the Act to sell a dwelling. The politician:

(a) was not an “eligible person” as the NHC had never declared him under s.3 of the Act to be eligible for assistance;

(b) was not an “approved applicant” as he was not a person Ministerially-declared as such under s.2 of the Act;

(c) was not a tenant of the NHC for more than two years (or at all) to whom the NHC could offer an option to purchase the property under s.38(1) of the Act.

(2) The circumstances of the sale were peculiar, irregular and suspicious because:

(a) the only thing the politician did to express his interest in purchasing the property was a general letter to the NHC enquiring if there was any property available for sale by the Corporation;

(b) there was no evidence that any other person was offered the property;

(c) the sale of the property was not advertised;

(d) there was no competitive bidding;

(e) the arrangements for the sale to the politician smacked of a favour being done.

(3) That although the NHC had made an offer to sell the property to the plaintiff at K529,590 as sitting tenant, the offer was unreasonable because the sale price was too high and the plaintiff had been given only 14 days to consider his position and pay a 10% deposit. His Honour took into account that by the time that offer was made, the plaintiff had been unsuccessfully endeavouring for the preceding 5 years to obtain from the NHC a confirmed offer made pursuant to s.38(1) of the Act.

  1. Reverting to the present case, Rhonda, in her statement of claim, has pleaded that Dim’s tenancy agreement dated 14 May 2019 was issued by the NHC in circumstances which were tantamount to constructive fraud. Rhonda has pleaded in para. 10 of her statement of claim that on 10 March 2019 the NHC’s Manager for NCD/Central, Mr John Emena, signed a memo to NHC’s Senior Legal Officer and other named senior officers of NHC which stated that the property was to be “legalised and transferred to the current sitting tenant -widow”, which of course is Rhonda.
  2. A copy of Mr Emena’s memo dated 10 March 2019 is annexure “C’ to Rhonda’s affidavit filed on 19 February 2021 (Exhibit P1). The memo was addressed to the NHC’s Senior Legal Officer Mr Nigel Pilamp. No objection was taken at trial by counsel for Dim or counsel for the NHC to the admission into evidence of that copy of Mr Emena’s memo.
  3. The text of Mr Emena’s memo dated 10 March 2019 is set out below in full, without editorial correction:

[NHC logo]

PROPERTY MANAGEMENT DIVISION
OFFICE OF THE MANAGER NCD/CENTRAL


Date: 10th March 2019

To: Senior Legal Officer – Nigel Pilamp

SUB: Advise on Dispute Property Section 03 Lot 36, 9 Mile

With reference to your memo as above dated 15th January 2019, pertaining the subject property – refer copy attached.

Please with due respect, I wish to advise that this matter has already being address in our meeting some weeks ago – yourself, a/GMP, a/RMS, Settlement Officer and myself with passing resolution to legalize or transfer the ownership to the current tenant – widow.

Thus, you have been assigned or given the task to advise the parties of our meeting decision accordingly hence by this time parties should have known their positions.

However, your memo doesn’t reflect to our meeting resolution thus causing confusion, which subsequent both parties are frequently following upon the case causing inconveniences.

Hence, would you please advise the parties of our meeting resolution accordingly and respectively as per our meeting resolution rather than submitting your recommendation.

For your information and perusal.

Thank you.

[signature]

John Emena
Manager NCD/Central


Cc: a/Managing Director

Cc: a/General Manager Properties

Cc: a/Principal Legal Officer

Cc: a/Regional Manager Southern

Cc: Settlement Officer


  1. Mr Emena’s memo of 10 March 2019 makes clear reference to a meeting that was held “some weeks” before, attended by Mr Pilamp and by the A/General Manager Properties, the A/Regional Manager Southern, the Settlement Officer and Mr Emena, at which a resolution was passed for the NHC to “legalize or transfer the ownership to the current tenant – widow”.
  2. Mr Pilamp was directed by Mr Emena’s memo to in effect inform the disputing parties, Rhonda and Dim, of the NHC’s resolution, which was in favour of Rhonda.
  3. Mr Emena’s memo contains a rebuke to Mr Pilamp for having made a recommendation to senior executives of the NHC which was contrary to the resolution those executives had made only several weeks before. I infer, given the context of the evidence as to what next happened, that Mr Pilamp’s recommendation was that the property should be transferred to Dim instead of Rhonda.
  4. After having referred to Mr Emena’s memo to Mr Pilamp dated 10 March 2019, Rhonda says this at paras. 12 and 13 of her first affidavit:

“ 12. On the 14th of May, less than two (2) months later, for some unknown reason, NHC decided against its own resolution to transfer the property to me and entered into a new Tenancy Agreement with Dim.

13. Despite my husband’s 16 years tenancy over the property, NHC entered into a new Tenancy Agreement with Dim, without first terminating my husband’s tenancy and notifying me to vacate the Property as the sitting tenant’s widow. NHC have also not considered the developments my late husband and I made on the Property and the length of time we occupied the property. ”


  1. As I have already observed, a copy of the tenancy agreement between the NHC and Dim dated 14 May 2019 is annexure “F” to Ms Bowada’s affidavit. The tenancy agreement states in its heading that it is an agreement under the ‘Self Help Housing Settlement Scheme’. The tenancy agreement says that Dim may occupy the property for a term of 2 years “at the rent and terms of conditions laid in this Agreement”.
  2. Term 1 of the tenancy agreement says that the tenant shall pay annual rent on the land but no rent is actually stated. The amount of the annual rent which is supposed to be paid by Dim under term 1 has been left blank. Term 7 of the tenancy agreement provides that if the tenant fails to pay rent on the due dates the NHC can claim the land back after giving one month’s notice that the tenant must leave. But as no rent is payable under term 1 because no amount of rent payable is stated, term 7 becomes nonsense, as does much of the remainder of the tenancy agreement. I am of the view that the tenancy agreement could be declared void for uncertainty on this ground alone, had Rhonda sought a declaration to that effect.
  3. The tenancy agreement bears what are the purported signatures of Dim and a representative of the NHC. The common seal of the Corporation is not affixed. The name and office of the person who has executed the tenancy agreement on behalf of the NHC is not stated.
  4. Section 71 of the Act provides:

71. AUTHENTICATION OF DOCUMENTS

Any documentation requiring authentication by the Corporation is sufficiently authenticated without the seal of the Corporation if signed by the Managing Director.


  1. There is nothing in the attestation portion of the tenancy agreement to indicate that it was signed for the NHC by its Managing Director. The tenancy agreement could have been signed by anyone on behalf of the NHC. This is a further defect which goes to the invalidity of the tenancy agreement. No evidence was adduced by the NHC at trial to indicate who it was who signed the tenancy agreement on behalf of the NHC and in what capacity. The Court is left to guess that the signature of the NHC’s representative who signed the tenancy agreement could have been its then Acting General Manager. But the tenancy agreement could just as well have been signed by an unauthorised officer or other employee of the NHC.
  2. The next thing that occurred is that just one day after the signing of the purported tenancy agreement on 14 May 2019, on 15 May 2019 the then Acting Managing Director of the NHC, Mr Kenneth Cook, wrote to Dim on the NHC’s letterhead conveying an offer for her to purchase the property. A copy of this extraordinary letter forms the first page of annexure “G” to Ms Bowada’s affidavit. The text of Mr Cook’s letter to Dim is set out below:

[NHC letterhead]

Date: 15/05/2019

TO: DIIM Kaeo

Section: 03 Allotment 36

Settlement: 9-Mile, NCD

Dear Sir/Madam,

SUBJECT: OFFER TO SETTLE OUTSTANDING LAND RENTS & DEVELOPMENT COST UNDER NHC SETTLEMENT SCHEME

NHC is pleased to advise you that the subject property is now approved to dispose under the Government Self-Help Housing Scheme (Settlement).

Our property record shows that your Property Account as at 15/06/2019 is in arrears of:

1. Annual Rents K 1,200.00

2. Land Development Cost K 1,147.00

3. Building Material Cost K -- -

4. Legal Fee K 200.00

5. Land Transfer Fee K 200.00

(Payable at Lands Department)

6. Settlement Association Fee K 300.00

7. Total Due K 3,047.00


We congratulate you on this offer and kindly asked to call into our NHC Head Office at Tokara[ra[ to see the Action Officer within Ten (10) Working Days upon receipt of this Offer to arrange funds for settlement. Upon completion of payment, documentations will be prepared to effect Title transfer process.

Thanking you in anticipation.

Yours faithfully,

National Housing Corporation

[signature]

For: KENNETH COOK

ACTING MANAGING DIRECTOR


  1. The second page of annexure “G” of Ms Bowada’s affidavit contains photocopies of two receipts: firstly NHC’s official receipt no. 57579 dated 15 May 2019 for Dim’s payment to NHC that day of K2,547 for annual rents of K1,200, land development cost of K1,147 and legal fees of K200, and secondly a receipt from Port Moresby Settlements Association dated 15 May 2019 for Dim’s payment of K300 for settlement association fee for the property.
  2. The haste with which Mr Cook’s letter of 15 May 2019 to Dim was made, within one day of the signing of her purported tenancy agreement, is truly remarkable. Even more so because there is proof by way of NHC’s receipt dated 15 May 2019 that Dim paid all outstanding annual rents for the property and other monies payable by her to the NHC totalling K2,547 in connection with the NHC’s prospective sale of the property to her on the very same day that Mr Cook’s letter of 15 May 2019 was issued to her.
  3. It has been submitted by respective counsel for Dim and for the NHC that the decision of the NHC (whoever it was made by) to enter into a tenancy agreement with Dim on 14 May 2019 and to then offer Dim an option to purchase the property instead of Rhonda was an administrative decision that was entirely within the discretion of the NHC to make.
  4. Counsel for each defendant maintained at trial that officers of the NHC used their discretionary powers to “endorse” the tenancy agreement which the NHC signed with Dim on 14 May 2019, and that the same discretion applied to Mr Cook as Acting Managing Director when on 15 May 2019 he offered Dim the option to purchase the property – which offer was accepted with such alacrity by Dim by her payment of K2,547 to the NHC the very same day.
  5. No submissions were made for Dim and the NHC at trial to explain why the NHC had an unfettered discretion in April 2019 or early May 2019 to suddenly reverse its earlier resolution made in February 2019 to transfer ownership of the property to Rhonda and to then grant Dim a tenancy agreement over the property on 14 May 2019, followed the very next day on 15 May 2019 by also giving Dim an option to purchase the property.
  6. This is why the Court finds it so offensive that Ms Bowada was minded to depose in para. 15 of her affidavit that, with reference to the NHC’s tenancy agreement with Dim dated 14 May 2019, the NHC came to a “considerable [sic] decision to execute a new tenancy agreement which would put at ease the dispute surrounding tenancy issues”. Ms Bowada was not content to leave it that but then followed up in para.18 of her affidavit by stating that she was “aware that all the necessary steps have been procedurally and/or administratively complied with, having the tenancy issues resolved.” Nothing could be further from the truth.
  7. I find that the evidence in the present case clearly shows that it is Rhonda, not Dim, who comes within the third category of persons to whom the NHC could sell the property pursuant to s.37(c) of the Act. Rhonda is the widow of the NHC’s deceased tenant, Chris Kaeo. The tenancy agreement signed by the NHC and Chris Kaeo, which is dated 5 June 2003, subsisted for more than two years without termination by the NHC and thereafter was never formally terminated by the NHC. Rhonda, following the death of her husband in 2018, was therefore an entitled person for the purposes of ss.37(c) and 38(1)(b) of the Act to whom the NHC could lawfully make an offer to exercise an option to purchase the property.
  8. I find that the NHC breached s. 35(1) of the Act when it granted a tenancy agreement to Dim in mid-May 2019 because there is no evidence whatsoever that Dim had ever been declared by the NHC under s.3 of the Act to be eligible for assistance under Part IV of the Act, nor is there any evidence of Dim having been declared by the Minister under s.2 of the Act to be an “approved applicant”.
  9. As the NHC acted ultra vires its statutory power under s.35(1) when it executed the purported tenancy agreement with Dim dated 14 May 2019, I have no hesitation in finding that the purported tenancy agreement was and is void.
  10. I find that the NHC then breached s.37 of the Act by purporting to offer an option to Dim to purchase the property, which offer was conveyed to Dim by Mr Cook’s letter of 15 May 2019, in circumstances where Mr Cook had no statutory power to do so. Dim was not an “eligible person”, or an “approved applicant” for the purposes of s.37(a) and (b) of the Act, nor was she a person for the purposes of s.37(c) of the Act to whom an option to purchase could be offered by the NHC under s.38(1) of the Act. Even if the purported tenancy agreement of 14 May 2019 was valid (which I have found it was not), an option to purchase the property could only have been made by the NHC under s.38(1)(a) to Dim as notional tenant after the tenancy agreement had been in force for two years, not one day.
  11. It follows that the purported offer to exercise an option to purchase the property which Mr Cook conveyed to Dim in his letter of 15 May 2019 was also ultra vires the NHC’s powers. I find that the purported option was and is void.
  12. I find that the circumstances in which the NHC resiled from its resolution made at a meeting of its senior executives in early February 2019 to transfer ownership of the property to Rhonda and decided to not only grant Dim a two-year tenancy of the property with no rental stated in the tenancy agreement but to also grant Dim with almost immediate effect an offer of option to purchase the property to be unlawful, irregular and suspicious. The actions taken by executives of the NHC in this regard were in defiance of Rhonda’s clear entitlement for the NHC to offer her an option to purchase the property under ss. 37(c) and 38(1) of the Act, Rhonda being the widow of her late husband within the meaning of s.38(1)(b) of the Act. The evidence at trial clearly established that it was Rhonda’s husband, the late Chris Kaeo, who was the NHC’s tenant of the property at the time of his death in 2018. Dim failed through her lawyers and through the NHC to produce any documentary or other evidence at trial to substantiate her claims to have had any legal or equitable interest in the property.
  13. I also find that Dim was fully complicit with the steps taken by the NHC to favour her with a purported tenancy agreement and offer of option to purchase the property. Evidence of Dim’s complicity is provided not just by the suspiciousness of the backflip on the part of the NHC that took place between mid-February and mid-May 2019 but also by the fact that Dim attended to payment to the NHC of monies totalling K2,547 the very same day as she received Mr Cook’s letter to her of 15 May 2019. Dim was clearly on standby to pay those monies to secure a transfer of the property to herself as quickly as possible after she received Mr Cook’s letter.
  14. I accordingly find that the purported tenancy agreement between the NHC and Dim dated 14 May 2019 and the NHC’s purported offer to Dim of an option to purchase the property were obtained in circumstances which were so unlawful, irregular and unsatisfactory as to be tantamount to fraud. Constructive fraud has been proven. Further, I find that because of the unlawful departure by the NHC from its statutory powers and duties in this case, a departure which was unexplained at trial and unjustified on the evidence, constructive fraud has been proven beyond reasonable doubt, not just on the balance of probabilities.
  15. Issue 5 is resolved such that the Court will grant the primary relief sought by Rhonda and will declare that the purported tenancy agreement which was issued by the NHC to Dim on 14 May 2019 was obtained by fraud, constructive fraud having been proven.

REMEDIES – WHAT ORDERS SHOULD BE MADE?

  1. In view of the judicial declaration of constructive fraud that this Court will make regarding the subject tenancy agreement, being a declaration which accords with the primary relief claimed by Rhonda in her statement of claim, what other orders should the Court make?
  2. Rhonda has claimed the further relief of a permanent injunction to restrain Dim and the NHC from entering onto the property to evict or remove her. Given the evidence at trial of the steps taken by the NHC and Dim in their endeavours to have Rhonda evicted from the property subsequent to mid-May 2019 and prior to the commencement of this proceeding in October 2019, I consider that a permanent injunction is warranted and will be granted. The interim restraining order which was issued by this Court on 25 October 2019 will be discharged and will be replaced by an injunction which permanently restrains the defendants from taking any action to evict or remove Rhonda and her invitees from the property.
  3. Rhonda has claimed general damages. However, counsel from the Public Solicitor’s Office made no submissions at trial as to what the nature and quantum, if any, of those damages should be. No damages will be awarded as none were sought for Rhonda at trial.
  4. Apart from the matter of costs, which I deal with below, this then leaves Rhonda’s plea in her prayer for relief for “such other orders that the Court deems fit”. The Court has a wide discretion to grant further orders which are consequential on any primary relief sought by a plaintiff and which may be granted by the Court. I consider in this instance that there are a number of further consequential orders which the Court should make and which are necessary to do justice in the particular circumstances of this case.
  5. In view of the finding that the offer of the option to purchase the property which was conveyed in Mr Cook’s letter to Dim dated 15 May 2019 was void for having been obtained by constructive fraud, a declaration will be made by the Court to that effect.
  6. Next, an order will be made for the NHC to furnish Dim with a refund of the amount of K2,547 which she paid to the NHC on 15 May 2019 as no transfer of the property to Dim can, as a result of today’s decision of the Court, take place.
  7. Next, an order will be made to ensure that the NHC properly determines the sale price of the property to be offered by way of an option to purchase the property to be conveyed by the NHC to Rhonda.
  8. Section 41 of the Act relevantly provides:

41. DETERMINATION OF SALE PRICE

(1) ... the sale price of a property sold under this Division shall be determined by the Corporation—

(a) in accordance with a valuation of the property by a valuer approved by the Corporation; or

(b) after considering such other evidence of the value of the property as in the opinion of the Corporation will enable it to fix a fair value.

(2) In determining the sale price under Subsection (1), no regard shall be had to any improvements to the property made by the purchaser or his spouse or any person claiming under or through the purchaser.


[emphasis added]


  1. The NHC will therefore be required by s.41 of the Act to fix the sale price to be paid by Rhonda for the property based on its unimproved value as at early 2019. The property was vacant land when it was first occupied by the late Chris Kaeo and Rhonda in mid-2003. No regard should therefore be taken by the NHC of the value of the improvements which the late Chris Kaeo and Rhonda have over the years constructed on the property: s.41(2) of the Act. The sale price for the property should be its unimproved value in or about February 2019, as this was when executives of the NHC passed their resolution for ownership and title to the property to be transferred to Rhonda.
  2. The undisputed evidence in this case is that all improvements on the land for the property were constructed and paid for by the late Chris Kaeo and Rhonda. There is no evidence that Dim or the NHC contributed any money at all to the cost of construction of the dwelling house, the small trade store and the perimeter fencing on the property, nor is there any evidence that Dim or the NHC assisted with the cost of connection of utilities such as electricity, water and sewerage to the property. All of those expenses were borne by the late Chris Kaeo and Rhonda.
  3. The NHC can determine that the sale price to be paid by Rhonda is the unimproved value of the property as at early 2019 by either of the two statutorily-approved methods:
  4. Next, the NHC will be directed by order of this Court to convey its offer pursuant to ss.37(c) and 38(1)(b) of the Act to Rhonda to exercise an option to purchase the property, followed by an order that the NHC is to action the sale and transfer of the property to Rhonda as soon as practicable after Rhonda’s exercise of the option to purchase.
  5. In conclusion, as to the order for costs, I consider that the conduct of the NHC, aided by Dim, was so calculated and reprehensible in denying Rhonda of her right as the widow of the former tenant of the property to acquire the property in accordance with s.37(c) and 38(1)(b) of the Act that it warrants an order that the NHC and Dim be jointly and severally liable to pay Rhonda’s costs of this proceeding and that, subject to existing interim orders as to costs, such costs be paid on a solicitor/client basis, all costs to be taxed if not agreed.

ORDER


  1. The terms of the formal Order of the Court are as follows:

(1) A declaration is made that the tenancy agreement in respect of the property described as Allotment 36 Section 3, Milinch Granville, Fourmil Moresby, National Capital District at Nine-Mile Settlement entered into by the First Defendant and the Second Defendant and dated 14 May 2019 is void for having been obtained by constructive fraud.

(2) A declaration is made that the Second Defendant’s offer of an option to purchase the property conveyed in the letter dated 15 May 2019 from the former Acting Managing Director of the Second Defendant to the First Defendant is void for having been obtained by constructive fraud.

(3) The Second Defendant shall forthwith refund to the First Defendant the sum of K2,547 which was paid by the First Defendant to the Second Defendant on 15 May 2019.

(4) The Second Defendant shall, in readiness for the offer referred to in term 5 of this Order to be made to the Plaintiff, cause the sale price of the property based on its unimproved value as at early 2019 to be determined no later than Friday 1 March 2024 by one of the following two statutorily-approved methods:

(a) a valuation of the unimproved value of the property as at early 2019 as assessed by a valuer approved by the Second Defendant for the purpose under s.41(1)(a) of the National Housing Corporation Act 1990; or

(b) after considering such other evidence of the unimproved value of the property as at early 2019 as in the opinion of the Second Defendant will enable it to fix the fair assessment of that value under s.41(1)(b) of the National Housing Corporation Act 1990.

(5) The incumbent Acting Managing Director of the Second Defendant shall, pursuant to s.38(1)(b) of the National Housing Corporation Act 1990, no later than Friday 8 March 2024 cause a letter containing an offer to the Plaintiff to exercise an option to purchase the property from the Second Defendant at the sale price determined in accordance with term 4 of this Order, the letter to be hand-delivered to the Plaintiff or to the Office of the Public Solicitor marked for the attention of the Public Solicitor.

(6) The incumbent Acting Managing Director of the Second Defendant shall personally ensure that upon:

(a) the Plaintiff giving written notice to the Second Defendant of exercise of the Plaintiff’s said option, and

(b) payment by the Plaintiff of all prescribed fees in connection therewith,

a contract for the sale and transfer of the property shall be promptly prepared and delivered to the Plaintiff or the Office of the Public Solicitor marked for the attention of the Public Solicitor for execution by the Plaintiff and return to the Second Defendant, and on the return of the contract for sale duly executed by the Plaintiff the Second Defendant shall execute the contract for sale and thereafter take all steps reasonably within its power to settle the said sale and transfer of the property to the Plaintiff at the earliest practicable point in time.

(7) The interim injunction contained in term 2 of the Order made in this proceeding on 25 October 2019 is hereby discharged.

(8) A permanent injunction is granted with immediate effect such that the First Defendant and the Second Defendant by themselves and their respective employees and agents are hereby restrained from entering onto the property for any purpose in connection with the eviction or removal of the Plaintiff or of any invitee of the Plaintiff from the property.

(9) Subject to any interim costs orders already made in this proceeding, the First Defendant and the Second Defendant shall jointly and severally pay the Plaintiff’s costs of and incidental to this proceeding on a solicitor/client basis, such costs to be taxed if not agreed.

(10) The time for entry of this Order is abridged to the time of signing by the Court which shall take place forthwith.

Declarations and orders accordingly.
________________________________________________________________
Leslie B. Mamu, Public Solicitor: Lawyer for the Plaintiff
Gibson Bon Lawyers: Lawyers for the First Defendant
Anthony Luke NHC In-house Lawyer: Lawyer for the Second Defendant

[1] Subsequent to the second mediation, the ADR Rules 2010 were repealed and replaced by the ADR Rules 2022, which came into operation on 1 September 2022.

[2] Cross on Evidence (6th Australian Edition) 2004 Butterworths at para.31030, p.979.

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