Vanimo Jaya Ltd v Rayau [2022] PGNC 53; N9443 (10 February 2022)

N9443
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 962 OF 2018(CC2)

BETWEEN:
VANIMO JAYA LIMITED
First Plaintiff

AND:
ONE UNI DEVELOPMENT CORPORATION LIMITED
Second Plaintiff

AND:
ANSLEM RAYAU as CHAIRMAN AND HILARY SUON, BONNY SAUWE, CARL NINI, MATHEW APOL, FRANCIS WAPIA, BRIAN AKUS, KAIYUS APAN, FABIAN MARI, CARL TEMAI, ANSLEM MAKI, PETER APAN and BRUCE SAROYA as representatives of MAINAR LAND GROUP INCORPORATED
First Defendant

AND:
MAINAR LAND GROUP INCORPORATED
Second Defendant

Waigani: Wurr, AJ
2021: 22^nd December
2022:10^th February

PRACTISE AND PROCEDURE –Application seeking review or appeal against amount certified by taxing master – application filed out of time- extension of time not sought- Order 22 Rule 60 of the National Court Rules, breached – application incompetent- all reliefs sought refused- parties to bear their own cost.

Counsel:

E.Dauma, for the First and Second Plaintiffs
No Appearance, for the First and Second Defendant

RULING

10^th February, 2022

1. WURR, AJ: The plaintiffs filed a motion seeking to review the taxing master’s decision made on 12 October 2021.
   
2. The Certificate of Taxation of the defendants’ Bill of Cost was filed on 28 October 2021 and served on the first plaintiff’s office on 04 November 2021.
   
3. This application was filed on 03 December 2021, which was 52 days after decision subject of this application was made; 36 days after Certificate of Taxation was filed; and 29 days after the plaintiffs were served the Certificate of Taxation.
   
4. The plaintiffs did not seek an extension of time from the Court before filing this review application.
   

ISSUE

5. The issue for consideration is whether the plaintiffs/applicants have satisfied all the four basic requirements or considerations for the Court to review the decision of the Taxing Master
   

LAW

6. The four basic requirements or considerations that need to be satisfied under Order 22 Rule 60 of the National Courts Rules are:
   
   1. A party dissatisfied with a decision of the Taxing Master may apply on a Motion to a Judge to review that decision.
      
   2. The Motion shall be made within 14 days after the date of the decision objected to, or within such further time as the Court may allow.
      
   3. Applicant must at the time of making the application deliver to the taxing master objections in writing specifying the list of items to which the applicant objects and must state concisely the nature and grounds of each objection.
      
   4. Objections shall be served on all relevant parties and any other person whom the taxing officer directs shall be served.
      

ADDRESS OF ISSUE

7. The first requirement is for an applicant to bring its application by way of a Notice of Motion. The application in this case is in its proper form as it has been brought by way of a Notice of Motion. I find that this requirement has been satisfied.
   
8. As to the second requirement, Order 22 Rule 60 (2) of the National Court Rules clearly provides in mandatory terms that an applicant aggrieved by a decision of the Taxing Master shall file an application seeking review within 14 days or within such further time as the Court may allow. In other words, if out of time, applicant must first seek further extension of time from the Court before filing an application seeking review of the Taxing Master’s decision.
   
9. In this case the Taxing Master’s decision was made on 12 October 2021, the Certificate of Taxation of the defendants’ Bill of Cost was filed on 28 October 2021 and served on the first plaintiff’s office on 04 November 2021. 14 days lapsed on 26 October 2021.
   
10. This application was filed on 03 December 2021, which was 52 days after decision subject of this application was made; 36 days after Certificate of Taxation was filed; and 29 days after the plaintiffs were served the Certificate of Taxation.
    
11. The plaintiffs did not seek an extension of time from the Court before filing this review application. The plaintiffs have failed to satisfy this requirement.
    
12. The third requirement is in very clear terms. It provides that an applicant must at the time of making the application deliver to the taxing master objections in writing (my emphasis) specifying the list of items to which the applicant objects and must state concisely the nature and grounds of each objection.
    
13. There is no evidence before me showing that the applicant did deliver to the taxing officer its objections. The evidence by Marie Karo is that the objection contained in the application for review, were only served on the defendants’ lawyers namely Kaore lawyers by email on 06 December 2021. This requirement has not been satisfied.
    
14. As to the fourth requirement, the defendants were served the copy of objection which was annexed to the application for review. The taxing officer was not served, hence was denied the opportunity to decide on whether or not to direct the applicant to serve copies of the objection on any other person apart from the defendants. I find that this requirement has not been fully satisfied.
    

CONCLUSION

15. The application is incompetent because it was filed out of time without first seeking leave of the Court.
    
16. Furthermore, the plaintiffs have failed to satisfy three of the four considerations provided in Order 22 Rule 62 of the National Court Rules.
    
17. All reliefs sought in the motion are therefore refused.
    
18. Since there was no appearance by the defendants to defend the motion, parties are to bear their own cost of this application.
    

ORDER

19. These are the formal orders of the Court:
    
    1. All reliefs sought in the plaintiffs’ Notice of Motion filed 03 December 2021, are refused.
       
    2. Parties are to bear their own cost of this application.
       
    3. Time for entry of this orders is abridged to the date of settlement which shall take place forthwith.
       

_________________________________________________________________

Nelson Lawyers: Lawyers for the Plaintiff

Kaore Lawyers: Lawyers for the Defendants