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2024 Supreme(PNG) 1
SUPREME COURT OF PAPUA NEW GUINEA
CAREY, J
In the Estate of Nangoi of Yukyuk Village
WPA 122 OF 2022
Important Points
Subject
Civil Law - Alternative Dispute Resolution
Act Referred
Wills, Probate and Administration Act (Chapter 291): S.38, S.44, S.81, S.82, S.83, S.84
Public Curator (Amendment) Act 2020
Professional Conduct Rules 1989
Headnote
(B) Bad Faith in Mediation - Consequences - Dismissal of proceedings - Striking out of defence - Costs - The Court declined to dismiss the proceedings due to the impact on beneficiaries but admonished the Plaintiff's lawyer for non-compliance with Professional Conduct Rules 1989. (Paras 16, 18, 24, 28)
Facts of the case:
Carol Simoi (Plaintiff/Applicant), the second wife of the deceased Chris Yer Nangoi, sought to be appointed as administrator of his estate. Ramantha Sariman (third wife) also claimed entitlement. Robin Yer Nangoi (brother) and Jane Nangoi (customary wife) also sought appointment. The Court ordered mediation, but the Mediator issued a Certificate of No Settlement Due to Bad Faith, citing lack of genuine participation by the Plaintiff. The Plaintiff's conduct during mediation included changing her position after reaching a settlement, based on legal advice. (Paras 2-15)
Findings of Court:
The Court found that the Plaintiff acted in bad faith in the mediation process. However, dismissing the proceedings would be unjust to the beneficiaries. The Court appointed the Intervener (Jane Nangoi) as the sole administrator, given her long-term customary marriage and good faith participation. The Plaintiff's lawyer was admonished, and indemnity costs were ordered against the Plaintiff and her lawyer. (Paras 16, 24, 31, 41)
Issues: Whether the Applicant acted in bad faith in the mediation; the consequences of bad faith; who should be appointed administrator; who are the beneficiaries; and how the estate should be distributed. (Paras 9-13)
Ratio Decidendi: The Court held that a finding of bad faith in mediation is based on facts as certified by the mediator. Even where bad faith is established, the Court has discretion under ADR Rules 2022 to impose consequences short of dismissal, especially where dismissal would prejudice innocent beneficiaries. The Court may appoint an administrator based on suitability and good faith, and distribute the intestate estate in accordance with Sections 81-84 of the Wills, Probate and Administration Act. (Paras 16, 17, 24, 31, 36) Result : Plaintiff's application for letters of administration refused. Intervener appointed as sole administrator. Estate distributed: one-third to three wives equally, two-thirds to six children equally. Plaintiff and her lawyer to pay indemnity costs.
Mr. Rekana Tuva, for the Plaintiff/Applicant
Mr. Benjamin Samiat, for the Respondent/Intervener
| Table of Content |
|---|
| 1. introduction and background facts of the case (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8) |
| 2. issues for determination and mediator's certificate details (Para 9 , 10 , 11 , 12 , 13 , 14 , 15) |
| 3. court's analysis, findings on bad faith, legal framework, and exercise of discretion (Para 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 36 , 37 , 38 , 39) |
| 4. distribution of estate and final orders (Para 40 , 41 , 42) |
JUDGMENT
13th May 2024
1. CAREY J: This is the judgment for the determination on the issue of bad faith by Carol Simoi (the Plaintiff/Applicant) in the mediation of the matter as indicated by the Mediator’s Certificate - th No Settlement Due to Bad Faith dated 5 May 2023.
BACKGROUND
2. The Applicant is the second wife of Chris Yer Nangoi (the deceased) and had two sons fathered by the deceased. She asserts that she is entitled to the estate of the deceased.
3. Ramantha Sariman is the third wife of the deceased and had a daughter fathered by the deceased. She also indicates that she is entitled to the estate of the deceased.
4. Robin Yer Nangoi (the brother of deceased) sought to be appointed as an administrator of the estate of the deceased.
5. Jane Nangoi (the Intervener) is the customary wife of the deceased and the marriage existed for over 20 years until the death of the deceased.
6. The Intervener has three children from the marriage with the deceased, Ben Nangoi born on 11th May 2002, Junior Chris Nangoi born on 19th December 2009 and Estelle Nangoi born on 14th March 2014.
7. The Court ordered mediation to allow parties to work out a solution as to who would be appointed as the administrator of the estate of the deceased.
8. The parties attended to mediation on the 14th , 19th , 20th , 24th and 25th April 2023 and 2nd May 2023 with the result being a Mediator’s Certificate – No Settlement Due to Bad Faith.
ISSUES FOR DETERMINATION
9. Whether the Applicant acted in ‘bad faith’ in the mediation process?
10. If the Applicant acted in bad faith in the mediation process, what are the likely consequences?
11. Who should be appointed administrator of the deceased estate?
12. Who are the beneficiaries of the estate?
13. How is the estate to be distributed?
14. The Mediator’s Certificate – No Settlement Due to Bad Faith sets out the facts and circumstances for which the bad faith certificate was issued.
15. It indicates as follows:
‘(a) no genuine participation or efforts by the Plaintiff to engage in a meaningful way for settlement;
(b) despite numerous private sessions and reality checks done with the Plaintiffs, the Plaintiff’s still held onto their position/s and preferred the matter be dealt with in Court;
(c) raising of legal issues and arguments by the lawyer for the Plaintiff was not helpful thus impeding the mediation process;
(d) Plaintiffs did not avail themselves in two occasions to resolving issues when given time to meet and work with the Defendants to talk and work on the issues raised at the mediation and returned with their same position; th (e) on 25 April 2023, the Mediators had a separate session with key people, namely:
· Jane Nangoi (First wife);
· Carol Simoi (Second wife);
· Ramantha Sariman (Third wife); and
· Robin Yer Nangoi (Deceassed older brother)
Settlement was reached on the distribution of the estate and the formula of the deceased’s estate, however, when parties returned for the joint session with the lawyers and the rest of the team, the Plaintiffs changed their mind/position based on their lawyer’s advice and withdrew their agreement; and
(f) the Plaintiffs entered into mediation reluctantly and were not truly serious about resolving the matter. Their basic position to still go to Court was confirmed when they ‘unexpectedly’ decided to reject Jane Nangoi’s offer for (1) joint administration in preference instead of a sole administrator by Robin Yer Nangoi and for (2) parties to review Jane’s distribution formula and as a result, the mediation was terminated.’
