Pogera Landowners Association Inc v Trainor [2018] PGNC 540; N7660 (20 April 2018)

N7660

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 685 OF 2013

POGERA LANDOWNERS ASSOCIATION INCORPORATED
Plaintiff

-V-

CHRISTOPHER TRAINOR in his capacity as Trustee
Defendant

PAUL MAWA in his capacity as Trustee
Second Defendant

DONALD HEHONA in his capacity as Trustee
Third Defendant

KURUBA IPARA, RUBEN NALAPE and JOHN ONDALANE as Interim Trustees
Fourth Defendant

Waigani: Kariko, J
2018: 9^th & 20^th April

COSTS – application for review of taxed costs

Cases Cited:

Barava Ltd v Augustine Mamalau (2013) SC1301
Napoleon Canonizado v Kapu Rageau (2011) N4382

Legislation:

National Court Rules

Counsel:

Ms J Nandape, for the Plaintiff
Mr M Wenge, for the First Defendant
Mr T Jugari, for the Fourth Defendant

RULING

20^th April, 2018

1. KARIKO, J: This is an application by the fourth defendant pursuant to Order 22 Rule 60 (1) National Court Rules for a review of the taxed costs of the plaintiff.
   

Background

2. On 11^th May, 2017 I ordered the fourth defendant to pay the plaintiff’s costs following my earlier decision effectively ending litigation of this proceeding OS No. 685 of 2013.
   
3. When the plaintiff’s bill of costs first came before the taxing officer, it was agreed that the parties attempt to settle the bill between them and revert to the taxing officer with those items not resolved for his assessment.
   
4. On 26^th October 2017, lawyers for both parties met and discussed the bill of costs on an item by item basis and reached agreement on amounts under various heads of the costs. The agreed amounts are set out in the following table.
   

Schedule 2 National Court Rules	Disbursements	Charges
Part 1 – Preparation of documents	K20	K98
Part 3 – Counsel’s fees	K80	K775
Part 7 A – Preparation for Trial	KNil	K5,000
Part 7 B, C & D – Considering documents	KNil	K5,206
Part 7 E – Considering documentation pleadings legislation rules and case authorities	KNil	K11,000
Part 9 – Taxation of cost	KNil	K2,500
Total	K100	K24,399

5. When Mr Jugari of counsel for the fourth defendant later sought instructions from his clients, they advised that they still disputed the amount of K11,000 under Part 7.E as excessive.
   
6. The matter was accordingly referred back to the taxing officer as a disputed item for taxation and was set down for hearing on 27^th February, 2018.
   
7. On that day, Mr Jugari was away in Mt Hagen on business when Ms Nandape of counsel for the plaintiff reminded him by mobile phone of the scheduled taxation. Mr Jugari asked Ms Nandape to pass on his request to the taxing officer for an adjournment. That message was relayed but Ms Nandape also advised the taxing officer (as she had also done with Mr Jugari) that she was ready to proceed. The taxing officer decided in her favour.
   

The objections

8. Summarized, the grounds for objection to the taxation on this review are:
   
   • (1) The costs claimed are excessive and not justified.
   • (2) Little or no weight was given to the defendant’s objections.
   • (3) The taxing officer failed to provide a decision explaining his decision on taxation.
   • (4) The taxing officer erred in proceeding ex parte with the taxation.
     

Consideration

9. In the bill of costs, Ms Nandape claimed K21,000 as charges and K100 as disbursement under Part7.E. On taxation, K7,000 was taxed off after the taxing officer considered the amount of K14,000 all-up as reasonable.
   
10. Mr Jugari argued the amount of K14,000 allowed for Part 7.E was still excessive because it was higher than the agreed amount of K11,000. I reject that submission. Once his clients refused the agreed amount of K11,000 the full amount of K21,100 claimed by Ms Nandape was back on the table for taxation. It has not been shown how the assessment of K14,000 by the taxing officer was wrong.
    
11. Part 7 allows the taxing officer to award a discretionary amount for work done that was necessary and proper but not otherwise provided for. The applicant must show that taxing officer erred in the exercise of his discretion; see Napoleon Canonizado v Kapu Rageau (2011) N4382.
    
12. Mr Jugari also argued that the taxing officer erred in not adjourning the taxation until after his return, but again it has not been demonstrated how the taxing officer wrongly exercised his discretion whether or not to proceed with taxation in Mr Jugari’s absence. In any case, this Court cannot set aside the taxation assessed ex parte and order a re-hearing for the reason that the party absent during taxation has recourse for any grievance concerning the taxation by applying for review under Order 22 Rule 60(1); see Barava Ltd v Augustine Mamalau (2013) SC1301.
    
13. I note that the National Court Rules do not expressly provide that a taxing officer shall provide a written decision following taxation. While I think it would be a prudent practice to adopt because such decision would allow parties and the Court on review to better appreciate the taxing officer’s exercise of his powers on taxation, I do not consider the fact that the taxing officer has not provided a written decision as a proper ground to disturb the taxation in the present case.
    

Conclusion

14. In the end, I am not convinced that the taxing officer exercised his discretion wrongly in arriving at the amount of K14,000 in relation to the disputed costs under Part 7.E of the plaintiff’s bill of costs. As noted earlier, all the other items were agreed to as per the table earlier referred to.
    
15. Accordingly, I dismiss the application for review of the taxation with costs in favour of the plaintiff.

__________________________________________________ _____________
Nandape Lawyers: Lawyer for the Plaintiff
Ashurst Lawyers: Lawyer for the First Defendant
Haiara’s Legal Practice: Lawyer for the Defendant