When someone disappears, their property does not stop needing attention. Rent falls due, rates accrue, a house deteriorates, a business stalls, and a family that depended on them has no lawful way to touch anything. The Public Curator Act (Chapter 81) provides for exactly this in section 12.
When the Court can make an order
Two conditions must be satisfied:
- the whereabouts of the owner of property in the country are unknown and cannot with reasonable diligence be ascertained; and
- there is no person in the country with authority to take possession of and administer the property.
On the ex parte application of the Public Trustee — that is, without the other side present, since there is no other side to notify — and on being satisfied that it is advisable in the interests of the owner or of any other person, the National Court or a Judge may make an order on such terms as it thinks proper.
Section 12 says nothing about whether the person has died. It is a management order over property whose owner cannot be found. Where death is suspected, the relevant provision is section 11 — and even then, under section 11(3), the Public Trustee may not distribute the assets without a further order of the Court specially authorising it.
What the order allows
The list in section 12(1) is long, and it is worth knowing how far it reaches. The Public Trustee may be authorised to:
- take possession of the property;
- bring, defend, compromise or submit to judgment in proceedings concerning it;
- sell, call in, convert into money or otherwise deal with the property;
- lease it for a term not exceeding seven years;
- sue for and recover money owed to the owner;
- insure buildings and other property;
- pay rates, taxes and outgoings, and borrow on the security of the property to do so;
- maintain and repair the property, and borrow on its security for that purpose;
- borrow on its security to comply with any law or requirement of a competent authority;
- invest money received in any manner in which trust money may be invested;
- pay the owner’s debts;
- apply money in the maintenance, education or advancement of the owner’s wife, husband, children, parents, brothers, sisters or other dependants, or in their reasonable medical or funeral expenses;
- complete existing contracts or discharge obligations attached to the property;
- execute deeds and instruments for those purposes, in the owner’s name if it thinks fit; and
- do such other things in relation to the property or affairs of the owner as the Court thinks proper.
The dependants power is the one that matters most to families. A missing person’s wife, children and parents can lawfully be maintained out of the property while the person remains missing.
What it costs
Section 12(2) makes all expenses incurred by the Public Trustee in exercising these powers a charge on the property, bearing interest at 5% per annum from the date incurred until recovered.
Under section 12(3), that charge ranks next in order of priority after any mortgage or charge to which the property was already subject when it came under the Public Trustee’s control. So an existing bank mortgage keeps its place; the Public Trustee’s costs come immediately behind it.
Section 12(4): all money received, after payment of authorised expenditure, is held in trust for the owner or the person beneficially entitled.
Dealings are as good as the owner’s own
Section 12(5) gives the Public Trustee, for any sale, lease or other disposition, the same powers as if it were the owner. An instrument it executes shall be registered and has effect in all respects as if executed by the owner.
That is what makes a section 12 order commercially usable — a purchaser or lessee gets good title. It is also why the order should not be treated as a formality by the family.
If the owner comes back
Section 12(6): the owner of the property, or any person having an interest in it, may at any time after the order is made, and after giving 14 days’ notice to the Public Trustee, apply to the National Court to rescind the order in whole or in part.
Under section 12(7) the Court may rescind on such terms as it thinks proper — but without prejudice to the validity of anything the Public Trustee did while the order was in force.
Section 12(8) goes further. An order, and anything done under it, does not become invalid merely because the order was made or the act done under a mistake of fact; because the owner was already dead when the order was made, or has died since; or because of any disposition of the property the owner made while the order was in force.
A returning owner may recover what remains and stop future dealings. They generally cannot unwind a completed sale.
Everyone holding the property must speak up
Once an order vests possession in the Public Trustee, section 40(2) requires any association, partnership or person holding the missing person’s property, holding a credit of money in its books, holding an asset or share, any corporation in which they are a registered shareholder, and any person indebted to them, to give notice to the Public Trustee immediately — not within 14 days, as applies for a deceased person. Failure is an offence: up to K5,000 or two years for an individual, up to K10,000 for a corporation. See part 4 of this series.
Where disputes go
Section 32 sends all disputes and claims concerning the collection, management or administration of property under a section 12 order to the National Court, unless the Court considers it undesirable and directs other proceedings. Section 33 lets the Public Trustee or a person interested apply for orders about collection, sale, investment and disposal.
What a family should actually do
- Report the disappearance to police and keep the report reference.
- Record what you did to find them — the test is that whereabouts cannot be ascertained with reasonable diligence, and that has to be evidenced.
- List the property and any income, debts and obligations attached to it.
- Approach the Public Trustee, since the section 12 application is made by that Office, not by the family.
- Ask about the dependants power in section 12(1)(q) if people are going without support.
- Take advice before agreeing to any sale, and diarise the 14 days’ notice requirement if rescission ever becomes relevant.
Missing person property matters are unusual and fact-specific. Contact a lawyer or the Office of the Public Solicitor.
Sources
- Public Curator Act (Chapter 81) — PacLII (1986 consolidation, PDF)
- Wills, Probate and Administration Act (Chapter 291) — PacLII
- Constitution of the Independent State of Papua New Guinea — PacLII
- Office of the Public Trustee — official website
Section references are to Chapter 81 as consolidated to No 13 of 2020. The PacLII copy is the 1986 consolidation; confirm the current text before relying on any provision.