Watermark PNG Ltd v Wanga [2022] PGNC 575; N10125 (13 December 2022)

N10125

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 600 OF 2017

WATERMARK PNG LIMITED
Plaintiff

V
TIRI WANGA, ACTING SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
First Defendant

AND
HON. BENNY ALLAN MP, MINISTER FOR LANDS & PHYSICAL PLANNING
Second Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND
NATIONAL CAPITAL DISTRICT COMMISSION
Fourth Defendant

AND
CHINA HABOUR ENGINEERING COMPANY (PNG) LIMITED
Fifth Defendant

AND
ANDY KENAMU
Sixth Defendant

AND
RAPI ANDIRA LIMITED
Seventh Defendant

Waigani: Miviri J
2022: 06^th & 13^th December

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Order 22 Rule 62 NCR – Judgment on Taxed Costs – No Review 14 Days – Motion Granted – Judgment entered Certified Costs K 337, 783.05 – cost incidental follow the event.

Cases Cited:

Abai v Independent State of Papua New Guinea [2000] PGSC 5; SC632 (5 May 2000).

Counsel:

R.Mannrai, for Plaintiff
No appearance, for Fourth Defendants

RULING

13^th December, 2022

1. MIVIRI, J: This is the ruling on the plaintiff’s notice of motion of the 11^th November 2022 invoking Order 22 Rule 62 for Judgement to be entered in the taxed costs in the sum of K 337, 783. 05. And Costs of the application at K3000.00. And any other orders as discretion given.
   
2. The motion is supported by the affidavit of Lawyer Rex J. Manrai dated 11^th November 2022 on oath that he is the principal of that law firm who had carriage of the proceedings. That on the 25^th January 2021 this Court handed down the final Judgement in this matter on the substantive Judicial Review application in favour of the plaintiff with the costs awarded on solicitor Client basis. And he attaches annexure “A” copy of the sealed orders that were issued. It confirms the Judgement with the orders culminating in this matter particularly the costs order that was made as set out.
   
3. And annexure “B” is a copy of the plaintiff’s application for Bill of Costs and the Plaintiffs Solicitor Client bill of Costs filed the 18^th July 2022. Which was taxed by the taxing officer allowing it to be K 337, 783. 05 and annexure “C” is that fact evidenced by the certificate of taxation issued of the 17^th October 2022. Sealed copy of which was served on Mukwesipu Lawyers on the 20^th October 2022 confirmed by the affidavit of service of Gloria Manrai sworn of the 26^th October 2022 filed the 27^th October 2022, annexure “D” to that affidavit. And which has also been served by registered post as deposed to in the affidavit of service by Grace Reto of the 28^th of October 2022. Primarily on the 26^th October 2022 she sent by EMS service a letter dated the 25^th October 2022 to Rapi Andira Limited to its postal address C/- Ecom Business Consultants, P. Box 270, Port Moresby NCD. Annexure “A” is that letter to that company, seventh defendant in the proceeding. And annexure “B” which is true copy of the EMS Customer Consignment notification and payment receipt. Annexure “C” is true copy of the Certificate of Taxation filed of the 17^th October 2022 which under cover of letter dated the 20^th October 2022 from Mannrai Lawyers was served by the legal Clerk on the office of Mukwesipu Lawyers who acted for the fourth defendant. And annexure “ D” is copy of the affidavit of service deposed to by Gloria Manrai sworn of the 26^th October 2022 filed the 27^th October 2022.
   
4. Service was made by EMS service sealed copy of the Certificate of Taxation filed on the 17^th October 2022 with separate covering letter in each case, Rapi Andira Limited on the 25^th October 2022. And both Andy Kenamu and China Harbour Engineering Company (PNG) Limited. Effectively this is opportunity to the defendants to defend the case. And after the decision of the Taxing Master of the 11^th October 2022 giving the figure at K 337, 783. 05 which was subsequently served on the 17^th October 2022 on the defendants on the 20^th October 2022 and 26^th October 2022. And from which the defendants did not exercise their right to seek review fulfilling Order 22 Rule 60 (1) of the National Court Rules. And which 14 days expired on the 25^th October 2022, effectively the defendants have lost their right to apply for review. And search within the Court Registry has seen no other papers similar. That no notice of motion had been filed by the defendants disputing. It means for all intent and purposes the taxed cost of K337, 783. 05 is effectively due as Judgement in favour of the applicant. It is taxed served not challenged and must in all fairness be converted as a judgment sum due the applicant as the fruits of his labour.
   
5. The discretion of the taxing master is wide and must be discharged in accordance with correct principles and the amount allowed must be reasonable. And the Court will not act against that discretion unless it has acted on the wrong principle. In the case of quantum, the Court will be reluctant to argue against. Here it is not overt nor is it apparent or identifiable that the discretion is mistaken or on the wrong principle for the Court to interject against: Abai v Independent State of Papua New Guinea [2000] PGSC 5; SC632 (5 May 2000).
   
6. Accordingly pursuant to Order 22 Rule 62 of the National Court Rules Judgement is entered for the Plaintiff in the sum of K 337, 783. 05.
   
7. Secondly the Defendant shall pay the Plaintiff’s costs of the application to be assessed at K3000.00.
   
8. The formal orders of the court are:
   
   • (1) The motion is granted as pleaded.
     
   • (2) Judgment is entered in the sum of K 337, 783. 05.
     
   • (3) Costs of and incidental to this proceedings in the sum of K3000.00 to be assessed.

Orders Accordingly.

__________________________________________________________________

Mannrai Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General : Lawyer for Defendants