Kimlee Equipment and Spare Pty Ltd v Santa (PNG) Pty Ltd [1995] PGNC 11; N1312 (17 March 1995)

Unreported National Court Decisions

N1312

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 314 OF 1994
KIMLEE EQUIPMENT & SPARE PTY LTD
v
SANTA (PNG) PTY LTD

Waigani

Doherty J
9 March 1995
17 March 1995

Powers of Court to review under O 22, R 60.

The applicant/defendant sought review of costs and expenses of the execution of a writ of levy by the Sheriff.

Held:

1. ـ҈ T60; The Shee Sheriff was a public functionary with a mandatory duty to sell by public auction but a discretion to decide the best place for that sale.

2. & H60;oul cuse n agent to t to assess goods for sale where he lacked expertise.

3. &#T60; oue C#82t&;s p7wers wers to reviewr O 260 shbe exed whhe Sheriff’s 17;s actioactions wens were imre impropeproperly, wrongly, capriciously or arbitrarily exercised.

Counse>

r Payr the Applicant

Mr M>Mr Merrick for the Respondent

Mr Kingal for the Sheriff

17 March 1995

DOHERTY J: The Appl/Defendant seeks reks review pursuant to O 22 R 60 of National Court Rules of a decision of the Taxing Officer taxing a Sheriff’s bill of fees. O 22 provthat every applicpplicant for review must deliver his objections in writing specifying the list of items and state the nature and grounds of objection. The ori bill was taxed on d on 21sember 1994 and some fees anes and charges incurred were reduced.

A judgment for K279,011 had been entered against the defendan when it was not paid a writ of levy of property was issuedssued out of the National Court on the 14th July 1994. Interest accrn the judgmendgment sum and costs were added, the writ of levy was for K281,625.85.

The property to be levied was at a lo site in Amazon Bay and was for various heavy logging equipment, bulldozers, front end load loaders etc. The sheriff engaged a n wion with some practical knowledge of both machinery and the area to locate and assess and seize the property. He apparewas aanied by shey sheriff’s officers and police when he went to the area.

Thep>The machinery and property were brought rt Moresby for sheriffs auction. It was advertised and sold.

The costs of the the person going to the site, the costs of transporting and storing property have been objected to by the defendant. The original bill wxed andd and reduced.

The Sheriff in submission the area was remote and the machinery specialised. It0; It had een used and wand was scattered in various places in the bush. eded an expert to assess wess which were worth moving for sale and which were useless.

The Plaintiff/Respondent strethe rness of the area area and the specialised nature of the machinery and submits the defendantndant did not appear earlier in proceedings. There is an implication heat he is late in the day to start objecting now. Whilst thatbe a practical ical observation he still has right of appearance under the rules.

The Sheriff’s duties are in O 13 R 31 and 32. R 32 and provide:“31. Time of (45/5)

(1

(1

(1) &&#160jectbto Ruto Rule 30 e 30 of this Order, the Sheriff shall put up for sale all property liable to sale under the writ as early as may be with due regard to the interests of the parties anthe ance orifice fice of thof the reae reasonable value of the property.

(2) &#16l property real and perd personal taken in execution shall be offered for sale by the Sheriff by public auction.

32. of Sal/6)The ff shut uhut up for sale property liablliable to e to sale sale underunder a writ at the place which seems to him best for a beneficial realisaof thperty21;The provisions of O 13, R 31 R 31 are are clearclearly maly mandatory and oblige the Sheriff to sell only by public auction, there can be no private sales no matter how good a price the Sheriff thinks he can achieve. The ff is mandatorily obli obliged, under R 32 to sell at the place which seems to him best for a beneficial realisation of the property.

This imposes upon teriff both a mandatory obligation to sell at the best placeplace and a discretion to decide where that best place is. The rule ad in conjunctionction with R 31 (1) had he must made that decision early and with due regard to the interests of the parties.&#The word “parties” is in the plural connoting that his obligation is to both thth the owner of the property and to the judgment creditor.

Counsel have not been able to refer me to any case law in our jurisdiction directly on this point.

Halsbury, 4th Edition, Vol. 17 at 447 refers to the Sheriff’s entitlement under a writ of fieri facias (now a writ for levy of property in our jurisdiction O 13, R 28) being entitled to expenses of making enquiries, a fee or fees for seizure, mileage, man in possession, removal and warehousing of goods and animals, advertising the sale and commission to the auctioneer. However as Mr Payne rightly says the English rules - as stated in Halsbury are dependent upon English legislation, not common law and care must be taken in applying interpretation of that statute situation to our rules.

The National Court rules use the English Supreme Court Practice as a drafting basis. The Eh Supreme Court PractPractice, 1991 Edition par 45/1/11 states:

“The truth is that the sheriff though for some purposes is an agent of the party who puts the writ in his hands, isa mere agent. He is a is a publnctionaryonary having indeed duties to perform towards those who set him in motion analogous, in many respects, to those of an agent towards his principal; but he also has duties towards others and particularly towards those against whom the writs in his hands are directed (see per Lord Cranworth LC in Hooper & Lane [1857] EngR 830; [1857] 6 HL Cas 443, 549-550, cited in Re a Debtor (No 2 of 1977), ex p. the Debtor & Goacher [1979] 1 WLR 956; [1979] 1 All ER 870).”

I consider this quotation is pertinent to the Sheriff in our jurisdiction also. He is also a public fonaryonary with a duty to be seen to act fairly and properly in relation to the parties involved, to the Court and the public. the obligation upon h holh hold a public auction and to execute this duties in a publ public accountable manner.

He is also, for some purposes an agent,as an agent is obliged to achieve the best for his principancipal.

As I have noted he has a discretion to decide where is the best place to hold the public auction of the goods seized. As a public functionary and an agent I consider he is obliged to exercise that discretion in a way that will, in his view achieve the best price in the circumstances.

On the facts befo I am informed (albeit partly from the bar table but it is t is not rebutted) that the equipment, the subject of this sale, was scattered over bush, some 18 kilometres from the wharf and in different places. Further that prtive purchaurchasers would have to travel by plane and small boat to where it was located if the sale was on site. In the circuces I considersider that thriff was entitled to assess these factors in exercising hisg his discretion when reaching his decision to hold the auction at Port Mo instead of the place where the equipment was located.

I consider, like a review of the exercise of the discretion vested in other statutory or public bodies, a court should invoke its powers to review only where it is shown the exercise of the discretion was improperly, wrongly, arbitrarily or capriciously exercised. Where a statutory bhows itws it reached a decision in the exercise of its discretion in a proper way after considering all the facts then the Court should not interfere.

Heaving considered the fact I think the Sheriff was entitled tled to reach the decision he made. osts of transport etc, I c, I concede, were high but they were what was directly charged and incurred and the sheriff had little choice. I do not think thrt caerfeterfere with them.

Mr Payne has also objectbjected to use of an agent a Mr Harkins, to examine assess and put the equt in state where it could be sold.

Mr Kingal, in written submission, explains why thhy the decision was made. Mr Merrick he had a practiractical knowledge of both the area and such equipment, a scarce combination.

Mr Payne says there is no pto employ agents. Whilst this i categoricallically stated it, similarly, is not categcategorically disallowed either. The sher duty is to achievchieve the best price in the interests of all parties. He has no professionalechamechanical expertise.&#In this case, given specialised equipment of varying state of repair I consider he had a di a discretion to make a decision to use thvices of someone better qualified in the field than himselfmself to assess the merits of the equipment and bring it to a condition for sale. In the circumstanc this cais case I do not consider he was in error and he could employ an agent.

The costs and charges have already been taxed and whilst this court has power to review them I consider they were properly incurred and do not reduce them further.

Mr Payne also objects to costs and outlays of security guards etc and refers to Table 4 (Sheriff’s fees) items for Keeper’s fees and says costs should be limited to K20 per day. However the keeper’s fees in that table are for “each person for each day” implying it is for the holding of persons rather than the securitys for equipment and I do not directly apply it to this situation.

This leaves other ther costs, food, travel costs etc and I was inclined to Mr Payne’s view that these were indeed high. On reflection and considonation of the powers of review vested in this Court, which are as I have stated, as in other judicial reviews, to review the outlays which have already been thject of a taxation would be trivial and vexious and in the the circumstances of this case I decline to review them.

Lawyers for the Applicant/Defendant: Blake Dawson Waldron

Lawyers for the Respondent/Plaintiff: Warner Shand & Co

Lawyer for the Sheriff: Dilu Goma