Virgil Baden Counsel trading as Trans PNG Services v Western Resources Ltd [1986] PGNC 57; [1986] PNGLR 215; N563 (10 October 1986)

N563

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

VIRGIL BADEN COUNSEL TRADING AS TRANS PNG SERVICES

V

WESTERN RESOURCES LIMITED AND JOHN L NAYLOR

Waigani
Wilson J
10 October 1986

PRACTICE - Payment into court - Who has property in - Not fund to credit of party until accepted - Not available for charging order till accepted - National Court Rules, O 13, r 2.

PRACTICE AND PROCEDURE - Charging orders - What funds available for - Payment into court not available until accepted - National Court Rules, O 13, r 2.

EXECUTION - Charging orders - What funds available for - Payment into court not available until accepted - National Court Rules, O 13, r 2.

Held

As money paid into court is not the property of the plaintiff until accepted by the plaintiff it cannot before such acceptance, be the subject of a charging order in favour of a judgment debtor under the National Court Rules, O 13, r 2.

London County Council v Monks [1959] Ch 239 at 243, adopted and applied.

Cases Cited

London County Council v Monks [1959] Ch 239; [1958] 3 All ER 670.

Notice of Motion

This was an application by way of notice of motion pursuant to O 13, r 2 of the National Court Rules seeking an order that the Registrar pay out funds paid into court in these proceedings, to satisfy a judgment debt obtained against the plaintiff in this matter in other proceedings.

Counsel

D Houseman, for the applicant.
D Letcher, for the respondent/plaintiff.
Cur adv vult

10 October 1986

WILSON J: In the motions court on Friday, 10 October 1986 after hearing counsel I made an order dismissing this application and indicated that I would give my reasons later, which I now do.

The brief background to this application is that the plaintiff, V B Counsel, was the defendant in proceedings taken by Steamships Trading Company Ltd to recover a debt for K31,401.73 arising out of a transaction which also involved the first defendant to these proceedings, Western Resources Pty Ltd.

In the course of the recovery action by Steamships Trading Company Ltd, Mr Counsel indicated that his ability to pay the debt relied on his success in recovering moneys from Western Resources Pty Ltd. Steamships Trading Company Ltd appear to have accepted the reality of this situation and have had proceedings against Mr Counsel for over two years and have maintained contact with him.

In the present proceedings a sum of K30,000 was paid into court by Western Resources Pty Ltd in satisfaction of Mr Counsel’s claim.

Steamships Trading Company Ltd now seeks an order that the K30,000 be paid to it to satisfy the judgment debt. Mr Houseman, counsel for Steamships Trading Company Ltd asserts that such an order is a charging order under the National Court Rules, O 13, r 2(1)(c).

The money paid into court has not been accepted by Mr Counsel. Indeed, it appears that since the payment into court a further offer of an increased amount has been made. This claim is for an amount of some K77,000. The ultimate fate of these proceedings is yet to be resolved.

The issue in point in this ruling is the fundamental question as to who has property in the money paid into court. As there has been no acceptance by the plaintiff, it is clear that it is not a fund to the credit of the plaintiff and therefore could not be the subject of such an order.

In his application, counsel for Steamships Trading Company Ltd referred to the case of London County Council v Monks [1959] Ch 239 at 243-4, where Danckwerts J set out the following observation:

"The real basis of these cases seems to me to be that, where the court has the fund under its own control, as in the case of a fund standing to the credit of some account of the Paymaster-General, the Paymaster-General being the officer of the High Court and all the judges of any Division of the High Court being judges of that court, the judges will enforce a High Court judgment by directing their officer to pay out the money or by making a charging order on the fund in question, so that judgment creditor shall not be defeated with regard to satisfaction of the judgment."

I agree with this statement while making the distinction with this case that the fund, the money paid into court, is not at the time of the application, one which is to the credit of the judgment debtor, Mr Counsel. It could, for example, be quite readily removed by the first defendant if it so wished. See O 8, r 74.

In dismissing this application I find that the proceeding has a fundamental flaw as it misconceives the nature of the fund.

In respect to costs, I order that the applicant, Steamships Trading Company Ltd pay the costs of the respondent, V B Counsel in relation to this application.

For the avoidance of doubt, even though no application was made, I decline to certify for overseas counsel.

Application dismissed

_______________

Lawyer for applicant: David Houseman.
Lawyer for respondent: Warner Shand Wilson Donigi Reiner.