Cloudy Bay Sustainable Forestry Ltd v Bidar [2021] PGNC 82; N8822 (21 May 2021)

N8822

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 36 OF 2018

BETWEEN:
CLOUDY BAY SUSTAINABLE FORESTRY LTD
Plaintiff

AND:
HIS WORSHIP COSMOS BIDAR SITTING AS THE PRINCIPAL MAGISTRATE AT THE GRADE FIVE COURT WAIGANI
First Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2021: 18^th February

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Order 22 Rule 62 NCR – Judgment on certified Costs – Motion contested – Initial Order on Party to Party Cost – Order 22 Rule 65 not Invoked – Party to Party costs – Motion denied – cost follow event.

Cases Cited:

Kaiulo v Yakima [2008] PGNC 157; N3507.
Counsel:

V. Orapa, for Plaintiff
H. Konkori, for State Defendants

RULING

21^st May, 2021

1. MIVIRI, J: This is the ruling on the Plaintiff’s notice of motion of the 29^th January 2021 pursuant to order 22 Rule 62 of the National Court Rules, Judgment in the sum of K 11, 951.50 be entered against Leahy Lewing Lowing Sullivan Lawyers for the defendant’s taxed costs.
   
2. Order 22 Rule 62 is in the following terms, “Judgement. Where the amount of any costs has been certified under this Division the Court may, on motion by a party, direct the entry of such judgement for the costs as the nature of the case requires.”
   
3. Further interest in damages pursuant to Judicial Proceedings (Interest on Debts and Damages) Act 2015. And Costs of and incidental to the application of K1000.00 to be paid by Leahy Lewing Lowing Sullivan Lawyers.
   
4. The motion relies on the affidavit of Henry Konkori sworn of the 28^th January 2021. He deposes that he is a lawyer who has carriage of the matter. That the firm Leahy Lewing Lowing Sullivan Lawyers acted for the Plaintiffs in the proceedings. They were ordered to pay the taxed costs of the defendants. Which through the office of the Solicitor was drafted amounting to K 130, 058.50. It was taxed and certified to K 11, 951. 50 annexure “C” to his affidavit. And it was served on the firm Leahy Lewing Lowing Sullivan Lawyers on the 09^th of September 2019 under cover of a letter addressed to them under hand of the deponent.
   
5. Leahy Lewing Lowing Sullivan Lawyers disputed contending that they were not liable as the Court order of the 23^rd April 2018 granted leave for the plaintiff to file a notice of discontinuance by close of business today 23^rd April 2018. And Costs were ordered to the Defendants to be borne on a party/party basis. And even if it were conclusive evidence of liability: Kaiulo v Yakima [2008] PGNC 157; N3507. That there were attempts to get the costs off from the other party to pay the certified costs. There is no evidence to this effect. The only other way is through Order 22 Rule 65 personal liability against the Solicitors. That has not been done here so Leahy Lewing Lowing Sullivan Lawyers are not liable for the payment of the certified taxed cost of K 11, 951. 50 personally.
   
6. They rely on the affidavit of Luke Wangi filed the 10^th February 2021 who swears that leave was granted to the plaintiff to discontinue the proceedings and to file an appropriate notice of discontinuance by close of business as of the 23^rd April 2018. And the costs were awarded to the defendants to be borne on a party/party basis. He attaches as annexure “A” true copy of that order sealed as of the 23rd April 2018. And indeed, that is what the order reads.
   
7. That is clear that the parties bear the costs not the solicitors personally. Here it would not be the case against Leahy Lewing Lowing Sullivan Lawyers because Order 22 Rule 65 has not been invoked for the Solicitors to be personally liable. The motion therefore fails and will not be granted in the terms pleaded. Because there is no material that the lawyers have improperly without reasonable cause have incurred the Taxed Costs certified of K 11, 951.50 so much so that they are liable personally and not by the party the Plaintiff Cloudy Bay Sustainable Forestry Ltd to incur. There is no material sustaining from the defendants and so the Orders sought will not fall their way. The order made by the court will stand as it is to costs on party/party basis.
   
8. The formal orders of the Court are:
   
   • (i) Judgement is granted on the certified taxed costs of K 11, 951. 50 to be borne by the plaintiff and not the Lawyers.
   • (ii) Costs will follow the event on a party/party basis.
     

Orders Accordingly.

__________________________________________________________________

Leahy Lewing Lowing Sullivan Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendant s