Yapao v Pawe [2023] PGNC 18; N10110 (3 February 2023)

N10110

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1053 OF 1997

BETWEEN
TYSON YAPAO as Administrator of the Estate of the late George T. Yapao
formerly trading as Yapao Lawyers
Plaintiff/Judgment Creditor

AND
YALIMAN PAWE representing himself, his Kiyo Clan and on behalf of other persons and their respective clans whose names appear in the schedule at the back of the Writ
First Defendants/Judgment Debtors

AND
PORGERA RIVER ALLUVIAL MINERS ASSOCIATION
Second Defendant/Judgment Debtor

AND
BARRICK (NIUGINI) LTD
Garnishee

Waigani: Shepherd J
2018: 12^th December
2023: 3^rd February

PRACTICE & PROCEDURE – garnishee proceedings – National Court Rules, Order 13 Division 7 – outline of procedure and principles for garnishee proceedings in National Court - National Court Rules, Order 13 Rule 62 – application by garnishee pursuant to Order 13 Rule 62 to set aside garnishee notice - applicant must show fairly arguable case that there is a genuine substantial dispute regarding garnisheed debt – mere assertion that there is such a dispute is not sufficient – there should be evidence of genuine substantial dispute – where there is material evidence demonstrating that a genuine substantial dispute exists then the garnishee notice should be set aside and the garnishee proceedings dismissed – application to dismiss garnishee proceedings granted.

Cases Cited:
Aure v Sai Business Group Inc (2008) N3349
Barrick (Niugini) Ltd v Pokoli (2015) SC1438
Ipara v Gaupe (2018) N7667
International Finance Company v K.K. Kingston Ltd (2019) SC1872
Kedmec Auto Repairs Ltd v PNG Power Ltd (2019) N7930
Papo v Barrick (Niugini) Ltd (2019) N9071
Papua New Guinea Banking Corporation v Yama (2010) N4184
Re Bemobile Ltd (2011) N4712
The PNG Balsa Company Ltd v New Britain Balsa Company Ltd (2004) N2520

Legislation:
Companies Act 1997: ss. 337, 338
National Court Rules: Order 13 Rules 56, 61, 62, 63; Schedule 1 Form 60

Counsel
Mr Jerry Siki, for the Judgment Creditor
Mr Rex Mann-Rai, for the Judgment Debtors
Ms Gertrude Tamade Elai, for the First Garnishee

DECISION

3^rd February, 2023

1. SHEPHERD J This is a decision on a contested garnishee notice issued by the judgment creditor seeking payment of a judgment debt by way of attachment of monies allegedly owed by the garnishee to the judgment debtor.
   
2. Leave was granted to the plaintiff/judgment creditor on 23 November 2015 to serve on the garnishee, Barrick (Niugini) Limited, a garnishee notice. The garnishee notice attached the sum of K1,414,577.56 of debt said to be due by the defendants/judgment debtors to the plaintiff/judgment creditor. Barrick (Niugini) Ltd as garnishee disputes its liability to pay the debt attached on the ground that it is not indebted to the defendants/judgment debtors. Barrick (Niugini) Ltd contends that these garnishee proceedings should be dismissed, with costs.
   
3. For the purposes of this decision, unless the context indicates otherwise, I refer to the plaintiff/judgment creditor as the Yapao Estate; to the first and second defendants/judgment debtors collectively as PRAMA and to the garnishee Barrick (Niugini) Ltd as Barrick.
   
4. The Yapao Estate initially named the Bank of South Pacific Limited as second garnishee in the garnishee notice. However, Yapao Estate did not pursue the Bank of South Pacific Limited in these garnishee proceedings.
   

LAW ON GARNISHEE PROCEEDINGS IN THE NATIONAL COURT

5. In civil proceedings, when a court orders a party to pay a sum of money to another party, the sum of money is called a judgment debt. The party who must pay the judgment debt is called the judgment debtor, while the party who is entitled to receive payment of the judgment debt is called the judgment creditor.
   
6. If the judgment debtor does not pay the judgment debt, the judgment creditor may enforce the judgment in different ways. If a third party, called a garnishee, owes money to the judgment debtor, the judgment creditor may apply to the Court for an order that the garnishee pay that money to the judgment creditor instead of the judgment debtor. In this way payment of the judgment debt owed by the judgment debtor to the judgment creditor is funded from money owed by the garnishee to the judgment creditor.
   
7. In more technical terms, garnishee proceedings are a means of enforcing a money judgment by the seizure or attachment of debts due or accruing to the judgment debtor. Garnishee proceedings are a form of execution upon debts. As with foreclosure by a mortgagee of property, garnishee orders are in two stages. A judgment creditor must first obtain a preliminary order of the Court granting leave to issue a garnishee notice, conventionally called an order nisi. This is then followed by a substantive order of garnishment if the Court is satisfied that such an order should be made. Such an order is conventionally called an order absolute.
   
8. Garnishee proceedings in the National Court are instituted under Division 7 of Order 13 of the National Court Rules (NCR). The procedure is akin to that which governs applications for judicial review under Order 16 NCR for judicial review, which is commenced by an ex parte application for leave to apply for judicial review, which if granted allows for substantive hearing of an application for judicial review.
   
9. Garnishee proceedings are commenced by way of ex parte application to obtain leave of the Court to issue a garnishee notice. The application on motion is made under Order 13 Rule 56 NCR, which provides:

56. Garnishee Notice

(1) A judgment creditor may, with the leave of the Court, but subject to any Act, file and serve on the garnishee a garnishee notice in Form 60—

(a) of attachment, to the extent of an amount specified in the notice, of debts due or accruing to the judgment debtor from the garnishee; and

(b) of motion for payment under this Division.

(2) A judgment creditor may move for leave under Sub-rule (1) without filing or serving notice of the motion.

(3) The Court shall not give leave under Sub-rule (1) unless it appears to the Court that—

(a) the judgment or order is unsatisfied; and

(b) there is a debt due or accruing to the judgment debtor from the garnishee.

(4) The Court shall, in giving leave under Sub-rule (1), fix the amount for specification in the garnishee notice under Sub-rule (1)(a).

(5) Subject to Sub-rule (6) the amount to be fixed by the Court for specification in the garnishee notice shall be the sum of—

(a) the amount due under the judgment or order on the date on which leave is given; and

(b) such amount as the Court may determine having regard to—

(i) interest on the judgment debt accruing after the date on which leave is given; and

(ii) costs of the garnishee proceedings.

(6) ...

(7) A garnishee notice shall include such particulars of the debt attached as are known to, or reasonably capable of ascertainment by the judgment creditor and as are necessary to enable the garnishee to identify the debt ...

10. A garnishee notice in Form 60 in Schedule 1 NCR sets out the particulars required by Order 13 Rule 56 NCR and states that the debt owing by the garnishee to the judgment debtor is “attached and bound in the hands of the garnishee to the extent of the sum required on and after service of this notice on the garnishee.” A date and time for the return of the matter before the Court is specified in the notice.
    
11. Term 5 of a garnishee notice in Form 60 states:

5. Provision exists for the determination at the hearing of any dispute by the garnishee of his liability to the judgment debtor for the debt attached.

12. It was held in Aure v Sai Business Group Inc (2008) N3349 (Kirriwom J) that the Court must satisfy itself of three requirements before leave to issue a garnishee notice can be granted:

(1) there is a debt owing to the plaintiff by the defendant;

(2) the debt has not been settled; and

(3) the defendant is owed money by the garnishee.

These three requirements were later confirmed in Papua New Guinea Banking Corporation v Yama (2010) N4184 (Kariko J) and more recently in Kedmec Auto Repairs Ltd v PNG Power Ltd (2019) N7930 (Numapo AJ).

13. When leave to issue a garnishee notice has been granted, a separate motion for an order for payment of the garnisheed debt must then be filed and served.
    
14. In addition to the filing and service of the motion for an order for payment of the garnisheed debt, Order 13 Rule 57 NCR requires a judgment creditor to serve the following documents on the garnishee personally and on the judgment debtor at least three days before the date fixed by the garnishee notice for the motion for payment:

(1) the garnishee notice; and

(2) each affidavit used on the motion for leave.

15. The powers of the Court to deal with the substantive application for an order for payment by a garnishee of a garnisheed debt are set out in Order 13 Rules 61, 62 and 63 NCR.
    
16. Order 13 Rule 61 NCR provides:

61. Payment to judgment creditor

Subject to Rules 62 and 63, the Court may, on motion pursuant to the garnishee notice, order the garnishee to pay to the judgment creditor the debt attached to the extent specified in the garnishee notice, or so much of the debt attached to the extent so specified as is required to satisfy the judgment or order on which the garnishee proceedings are taken together with interest and such costs of the garnishee proceedings as may be payable to the judgment creditor out of the debt attached.

17. Where a garnishee disputes liability to pay the debt attached by the garnishee notice, the Court has extensive powers to hear and determine the dispute. Order 13 Rule 62 NCR states:

62. Dispute of liability by garnishee

Where, on the hearing of a motion by the judgment creditor pursuant to the garnishee notice, the garnishee disputes liability to pay the debt attached, the Court may hear and determine the questions in dispute and direct the entry of such judgment, or make such order, as the nature of the case requires.

18. The Court has similar discretionary powers under Order 13 Rule 63 NCR to deal with claims made by persons other than the garnishee who assert entitlement to be paid the debt of the judgment debtor which has been attached in the garnishee notice.
    
19. If the Court is satisfied at the substantive hearing that the debt attached in the garnishee notice is genuine, is not in dispute and is available for payment to the judgment creditor, a final order requiring the debt attached to be paid by the garnishee to the judgment creditor will usually be granted. This is the order conventionally referred to as the order absolute.
    
20. However, if the garnishee is able to satisfy the Court that there is genuine dispute as to whether it owes money to the judgment debtor which could satisfy the judgment debtor’s debt to the judgment creditor, the Court has power under Order 13 Rule 62 NCR to refuse to grant the motion for a final order and to dismiss the garnishee proceedings with or without costs.
    
21. Where a garnishee claims that there is genuine dispute as to its liability to pay the debt attached in the garnishee notice, the situation is similar to where a company disputes its liability to pay a debt referred to in a statutory demand which has been served on it pursuant to s.337 of the Companies Act 1997. In those circumstances, the company has the right to apply to the Court pursuant to s.338 of the Companies Act to set aside the statutory demand on the ground that the debt is in dispute. The Court has power under s.338 of the Companies Act to set aside the statutory demand if the applicant company can satisfy the Court that the debt is not owed or is genuinely in dispute.
    
22. The principles which are applicable to the Court’s discretion when dealing with an application made under s.338 of the Companies Act are well established.
    
23. It was held by Lenalia J in The PNG Balsa Company Ltd v New Britain Balsa Company Ltd (2004) N2520 that in order to demonstrate that there is a substantial dispute, an applicant must show a fairly arguable case to justify the contention that it is not liable to pay the amount claimed in the statutory demand. Mere assertions of the existence of a dispute will not do. The onus is on the applicant company to substantiate that there is substantial dispute by material or cogent evidence. Where proof has been given that there exists a substantial dispute, the matter should be resolved by other means. These principles, which derive from a series of New Zealand case authorities, were further adopted and applied by David J in Re Bemobile Ltd (2011) N4712 and more recently by the Supreme Court in International Finance Company v K.K. Kingston Ltd (2019) SC 1872 (Yagi, Collier, Berrigan JJ).
    
24. I consider that the same principles are, by analogy, appropriate and applicable to circumstances where a garnishee, on the return of a judgment creditor’s motion for an order for payment by the garnishee of a debt attached by a garnishee notice, disputes its liability for the attached debt on the ground that the debt is not genuinely owed by the garnishee. I adopt and apply those principles to the garnishee proceedings which are the subject of this decision of the Court.
    

ISSUES

25. The parties’ Statement of Agreement and Disputed Facts with Issues for Determination is a lengthy document comprising 20 pages (the Statement). It was certified by respective counsel acting for the parties in these garnishee proceedings on 29 November 2018 and filed the same day.
26. The Statement contains at pages 19 and 20 a long list of issues which the parties’ counsel had at that stage agreed between themselves were the issues for determination by this Court. The agreed issues were to the following effect:

(1) Whether the defendants represented by PRAMA were and are affected by the sediment impact downstream of the Porgera Gold Mine along the Porgera River?

(2) Whether the Ipara Genealogy Study, a clan and landowner vetting document, identified the defendants as landowners affected by downstream sediment impact from the Porgera Gold Mine along the Porgera River?

(3) If Barrick had already paid the sediment impact compensation payments, whether Barrick paid the correct people identified by the Ipara Genealogy Study?

(4) Whether the defendants are entitled to the sediment impact compensation payments pursuant to the 1996 Ministerial Determination?

(5) If YES to question 4 above, whether Barrick has paid the defendants their sediment impact compensation entitlements as per the 1996 Ministerial Determination:

(6) If NO to question 5 above, whether Barrick owes the defendants any unpaid entitlements for sediment impact compensation payments under the 1996 Ministerial Determination?

(7) If YES to question 6 above, whether the majority of the clan agents identified by the Ipara Genealogy Study have consented to settle the Yapao Estate’s judgment debt pursuant to the Supreme Court orders of 25 June 2018 in SCA No. 98 of 2017?

(8) If YES to question 7 above, whether the Yapao Estate’s judgment debt in the sum of K1,659,822.55 should be paid by Barrick as garnishee out of the defendants’ sediment impact compensation outstanding entitlements owed by Barrick?

27. However, having reviewed the extensive affidavit material, the submissions made for the respective parties and applicable law, it is clear that the legal issues for determination by the Court in these garnishee proceedings on the return of the Yapao Estate’s motion for a substantive garnishee order can be distilled into much fewer issues and can be summarised as follows:

(1) Is there is a judgment debt that is owing by PRAMA and other defendants to the Yapao Estate?

(2) If so, has that judgment debt has been settled?

(3) If not, is there evidence of a genuine debt owed by Barrick to PRAMA and the other defendants that should be paid by Barrick as garnishee to the Yapao Estate as judgment creditor in satisfaction of PRAMA’s judgment debt owed to the Yapao Estate?

CONSIDERATION

Issue 1: Is there a judgment debt owing by PRAMA and the other defendants to the Yapao Estate?

28. This proceeding WS No. 1053 of 1997 was commenced by George Yapao trading as Yapao Lawyers more than 25 years ago on 5 November 1997. George Yapao claimed judgment for legal fees of K1.52million said to be owed to him by defendants PRAMA, Yaliman Pawe, Opis Papo and 146 other clan leaders and customary land owners who George Yapao had been representing in a successful environmental damage claim against the Porgera Joint Venture in connection with the operation of the Porgera Gold Mine in Enga Province.
    
29. The undisputed evidence of the parties is that on 10 June 1998 George Yapao obtained default judgment in this suit against PRAMA and the other defendants, with damages to be assessed. The default judgment was granted by Kapi DCJ (as he then was). In his reasons for decision, his Honour said that as George Yapao’s legal fees had not been itemised in detail, those legal fees should be taxed.
    
30. George Yapao’s bill of costs for his legal fees was taxed by the taxing officer on 12 January 2005. The bill of costs was allowed at K1,424,577.56. A certificate of taxation was issued for that amount the same day.
    
31. The certificate of taxation was served on the defendants represented by PRAMA on 13 January 2009. No review of George Yapao’s taxed bill of costs for his legal fees was sought by the defendants within the 14-day period allowed by Order 22 Rule 60 NCR.
    
32. Despite repeated demand, PRAMA and the other defendants failed to pay George Yapao’s taxed bill of costs of K1,424,577.56 for his legal fees.
    
33. Six years later, George Yapao filed a notice of motion in this proceeding on 30 January 2015 seeking an order to convert the amount of his bill of costs taxed at K1,414,577.56 into a judgment amount pursuant to Order 22 Rule 62 NCR and that interest be awarded at 8% on that judgment amount.
    
34. The motion was heard by Kandakasi J (as he then was) on 5 March 2015. His Honour ordered that the taxed costs be converted into a judgment debt of K1,414,577.56. However, his Honour in the exercise of the Court’s discretion declined to award any interest component on that judgment amount or at all.
    
35. Aggrieved by his Honour’s refusal to award interest on the judgment amount, on 31 March 2015 George Yapao filed a notice of appeal in the Supreme Court in SCA No. 38 of 2015 – George T. Yapao t/a Yapao Lawyers, v Yaliman Pawe & Ors. PRAMA was one of the respondents cited in that appeal.
    
36. On 16 December 2015 the Supreme Court (Gavara-Nanu, Sawong, Higgins JJ) upheld George Yapao’s appeal and ordered that interest be awarded at 8% per annum on the judgment sum of K1,414,577.56 from 3 February 2015 to the date of the Supreme Court’s judgment on 16 December 2015. The Supreme Court also ordered that the defendants pay George Yapao’s taxed costs in this suit and of the appeal in SCA No. 38 of 2015.
    
37. Interest at 8% per annum on the judgment debt of K1,414,577.56 from 3 February 2015 to 16 December 2015 was calculated at K103,623.24, a total of K1,518,200.80, and this calculation and demand for payment of K1,518,200.80 was communicated by George Yapao to PRAMA and the defendants shortly after the Supreme Court’s decision of 16 December 2015 was delivered.
    
38. George Yapao died on 3 October 2016. As at his date of death, PRAMA and the other defendants had still failed to settle payment of the judgment debt and the interest component ordered to be paid by the Supreme Court in SCA No. 38 of 2015.
    
39. On 23 December 2016 the National Court granted Tyson Yapao, the eldest son of the late George Yapao, letters of administration of his father’s estate. Tyson Yapao has subsequently replaced the late George Yapao as the plaintiff in this proceeding.
    
40. Counsel for PRAMA concedes that PRAMA and the other defendants owe the Yapao Estate the sum of K1,518,200.80 comprising the judgment debt of K1,414,577.56 assessed by Kandakasi J in this proceeding WS No. 1053 of 1997 on 5 March 2015 together with the interest component of K103,623.24 awarded by the Supreme Court in SC No. 38 of 2015 on 16 December 2015, plus the further costs ordered to be paid by the Supreme Court.
    
41. I am accordingly satisfied on the evidence that PRAMA and the other defendants are justly indebted, and continue to be indebted, to the Yapao Estate for the judgment debt of K1,414,577.56 ordered by Kandakasi J in this suit WS No. 1053 of 1997 on 5 March 2015 to be paid by PRAMA and the other defendants to George Yapao, together with the interest component thereon awarded by the Supreme Court in SCA No. 38 of 2015 calculated at K103,623.24, a total of K1,518,200.80.
    
42. I am also satisfied on the evidence that PRAMA and the other defendants in this suit are additionally indebted, and continue to be indebted, to the Yapao Estate for the legal costs of this proceeding and in SCA No. 38 of 2015 which were ordered by the Supreme Court on 16 December 2015 to be paid by PRAMA and the other defendants.
    
43. I therefore find that the debt of K1,414,577.56 that was attached and is referred to in the garnishee notice served by Tyson Yapao’s lawyers on Barrick on 24 November 2015 pursuant to leave granted on 23 November 2015 is a genuine and undisputed judgment debt that exists and which continues to be owed by PRAMA and the other defendants to the Yapao Estate.
    
44. Issue 1 is accordingly resolved in the affirmative.
    

Issue 2: Has the judgment debt been settled?

45. In view of my findings in Issue 1 and the said concession made by counsel for PRAMA, there is no question that the judgment debt of K1,414,577.56 attached by the garnishee notice and interest component has ever been settled. PRAMA and the other defendants agree that the subject judgment debt which they owe to the Yapao Estate has never been paid or settled by them.
    
46. Issue 2 is convincingly resolved in the negative. I find that the whole of the subject judgment debt of PRAMA and the other defendants which is owed by them to the Yapao Estate remains outstanding, as do the additional monies I have mentioned.

Issue 3: Is there a genuine debt owed by Barrick to PRAMA and the other defendants that should be paid by Barrick as garnishee to the Yapao Estate as judgment creditor in satisfaction of PRAMA’s judgment debt owed to the Yapao Estate?

47. Barrick strenuously disputes, as it is entitled to do under Order 13 Rule 62 NCR, that it has any liability to pay any money to PRAMA and the other defendants which could be applied in satisfaction of the judgment debt of K1,414,577.56 attached by the garnishee notice which is owed by PRAMA and the other defendants to the Yapao Estate.
    
48. Recourse must therefore be had to a consideration of the protracted history and circumstances surrounding PRAMA’s assertion that PRAMA and the other defendants are owed money by Barrick – and Barrick’s corresponding denial.
    
49. On 7 February 1996 a Ministerial Determination was made by Hon. Paul Mambei, Minister for Environment and Conservation pursuant to Section 16(6) of the now repealed Water Resources Act 1982. The Ministerial Determination was made by the Minister in an endeavour to settle a host of environmental damage claims which had been made by customary landowners represented by PRAMA and many other claimants in connection with the Porgera Gold Mine.
    
50. The 1996 Ministerial Determination was a compensation package for downstream landowners along the Lower Porgera River for loss of access to alluvial gold and for environmental impacts caused by tailings discharge and river sedimentation damage caused by rock material removed from the Porgera Gold Mine. The Determination identified two groups of landowners entitled to receive compensation for environmental damage caused by tailings: one group in Zone 1 and the other group in Zone 2. The Determination also fixed separate rates to calculate the amount of compensation in monetary terms to be paid to certain groups of landowners for three categories of environmental damage caused by: (i) loss of access to alluvial gold (ii) tailings discharge, and (iii) sediment occurring below two designated dumping points on the Lower Porgera River.
    
51. The text of the 1996 Ministerial Determination is reproduced below:
    

“Ministerial Determination

Lower Porgera Environmental Damage Compensation Claim

Following six (6) years of unsuccessful negotiations over the above claim between the Porgera Joint Venture (PJV) and the affected landowners, I, Honourable Paul Mambei, as Minister responsible for the Water Resources Act, was requested to decide on a settlement package, in accordance with section 16(6) of the said legislation.

The compensation claim related to three main impacts downstream of the Porgera Gold Mine, namely:

(i) loss of access to alluvial gold,

(ii) impacts due to tailings discharge, and

(iii) sedimentation impacts below the Anawe and Anjolek erodible dumps.

Having consulted the Water Resources Board, I hereby determine that PJV, as operator of the mine, pay compensation to the affected landowners based on the following terms:

(a) K650,000 shall serve as compensation for loss of access to alluvial gold along the Lower Porgera river and the total amount with accrued interest i.e. K1,152,067.00 be paid.

(b) K311,775 shall serve as compensation for loss of access to alluvial gold along the Kaiya Rivers and the total amount with accrued interest i.e. K389,339.00 be paid.

(c) for compensation due to tailings discharge, Zone 1 shall include the river system from the tailings outlet to the Porgera/Lagaip junction and Zone 2, from Porgera/Lagaip to Strickland/Tumbudu River junctions.

(d) The rate of K0.063/t shall be used for Zone 1 tailings compensation and K0.025/t for Zone 2.

(e) backpayment for (d) shall be calculated at 6.5% interest per annum and CPI adjustments shall apply annually from 1996.

(f) the rate of K0.025/t shall be used for sedimentation impacts for the actual areas affected below the Anawe and Anjolek erodible dumps

(g) backpayment for (f), shall be calculated at 6.5% [interest] per annum and CPI adjustments shall apply annually from 1996.

(h) compensation monies shall be disbursed on the basis of the Ipara Genealogy Study, and

(i) all once-off and backpayment compensation monies shall be paid within twelve (12) months from the date of release of this determination. ...

[signature]
Honourable Paul Mambei, MP
Minister for Environment and Conservation

Date: 07/02/96 ”

52. A table attached to the 1996 Ministerial Determination set out details of the overall compensation package for backpayments, inclusive of interest, to be paid by PJV for the three heads of damage covered items (i), (ii) and (iii) for periods from 1989 to 1996 and then for projected payments to be made for those same three heads of environmental damage from 1996 to 2006.
    
53. As at 1996 the Porgera Gold Mine was operated by the Porgera Joint Venture. The operation of the mine subsequently passed to Barrick.
    
54. The 1996 Ministerial Determination has been the source of much litigation in both the National Court and the Supreme Court: see for example Barrick (Niugini) Ltd v Pokoli (2015) SC1438; Ipara v Gaupe (2018) N7667; Papo v Barrick (Niugini) Ltd (2019) N9071.
    
55. PRAMA has claimed in these present garnishee proceedings that the landowner members who it represents are entitled to compensation for the sediment component specified in items (iii) and (f) of the 1996 Ministerial Determination. In other words, that clan members represented by PRAMA come from villages adjacent to the Lower Porgera River below erodible dumps at Anawe and Anjolek where environmental damage caused by sediment impact has allegedly occurred.
    
56. According to Barrick, sediment impact is defined as the impact caused by the deposition of sediment below licensed discharge points for the disposal of waste rock from the Porgera Gold Mine. Anawe and Anjolek are discharge points adjacent to the Lower Porgera River which were formerly licensed under the Water Resources Act 1982 and are termed “erodible dumps”.
    
57. The Water Resources Act was repealed by the Environment Act 2000 which came into force on 1 January 2004.
    
58. Barrick contends that compensation was only payable for environmental damage under items (iii) and (f) of the 1996 Ministerial Determination where it could be proved that sediment impact had occurred downstream from the disposal of waste rock at Anawe and/or Anjolek and which had caused proven environmental damage to actual areas of the underlying bed of the Porgera River or adjacent customary land.
    
59. Barrick is adamant that PRAMA and the other defendants in this proceeding have no entitlement to any compensation for sediment impact damage under items (iii) and (f) of the 1996 Ministerial Determination because there is no proven damage that has occurred to their customary land downstream of the discharge points at Anawe or Anjolek on the Lower Porgera River as a result of the operation of the Porgera Gold Mine. Barrick maintains that PRAMA and the defendants have a serious misconception that they have some form of unpaid entitlement for unproven sediment impact damage under items (iii) and (f) of the 1996 Ministerial Determination.
    
60. Barrick maintains that PRAMA and the other defendants in this proceeding were only entitled to compensation under items (i) and (ii) of the 1996 Ministerial Determination for loss of access to alluvial gold and for tailings damage and that all such compensation has long since been paid.
    
61. Barrick also says that no compensation is payable pursuant to the sediment impact component referred to in item (iii) of the 1996 Ministerial Determination for naturally occurring sedimentation, and that if there has been any sedimentation complained of by PRAMA and its members, then such sedimentation in the Lower Porgera River adjacent to their customary land is attributable to natural causes and has not been caused as a result of the operation of the Porgera Gold Mine.
    
62. Barrick relies on two affidavits in support of its position that no compensation money for sediment impact damage is or has ever been payable under items (iii) and (f) of the 1996 Ministerial Determination by PJV or Barrick to PRAMA and the other defendants cited in this proceeding. The two affidavits relied on by Barrick are these:

(1) affidavit of Dunstan Patalo filed on 23 October 2018; and

(2) affidavit of Bart Aloitch filed on 14 November 2018.

63. Dunstan Patalo in his affidavit deposed that as at 2018 he was the manager of Barrick’s legal unit and that he has been involved in many of the claims made by landowners for compensation for environmental damage said to have been caused over the years by the Porgera Gold Mine. Dunstan Patalo specifically refers to claims made in affidavits filed in these garnishee proceedings and sworn by Opis Papo, a former chairman of PRAMA and one of the defendants cited in this proceeding, which relate to the 1996 Ministerial Determination. Mr Patalo says at paragraphs 8 and 9 of his affidavit that Opis Papo and his affiliated clans and people come from Zone 1 at Porgera and were only entitled to compensation for loss of access to alluvial gold and compensation for tailings discharge under items (i) and (ii) of the 1996 Ministerial Determination. They were not entitled to compensation for sedimentation discharge. Records kept by Barrick and referred to by Dunstan Patalo in his affidavit show that Opis Papo received an amount of K1.7million as compensation for the clans he represents for tailings discharge.
64. Mr Patalo then refers at paragraphs 10 and 11 of his affidavit to the affidavit of David Mandi filed for PRAMA in this proceeding on 14 September 2018.
65. As at 2018 Mr Mandi was the current chairman of PRAMA. Mr Mandi’s affidavit comprises 3 volumes and annexes copies of consent forms signed in August 2018 by 207 landowner agents, clan leaders and landowners represented by PRAMA in this proceeding. The consent forms indicate that the 207 persons signing them agreed to settle the debt owed to the Yapao Estate in this proceeding WS No. 1053 of 1997 and in Supreme Court proceedings SCA No. 38 of 2015, assessed at that time at K1,659,822.55, from their (presumed) entitlement to sediment impact compensation purportedly outstanding and payable to them under the 1996 Ministerial Determination.
66. Set out below is the text of paragraphs 10, 11, 12 and 13 of Mr Patalo’s affidavit:

“ 10. I have perused the Affidavit of David Mandi filed on 14 September 2018 and note paragraphs 14 to 21 of his Affidavit. I confirm that David Mandi’s assertions of PRAMA members being entitled to the sediment compensation under the 1996 Ministerial Determination is misconceived and without any basis.

11. I note in David Mandi’s Affidavit that a good number of landowners have signed consents and also that they are illiterate. It may be that these landowners do not understand the fact that they are not entitled to payments for sediment impact caused by the mine and are only entitled to payment for impact of tailings discharge.

12. I confirm that all payments under the 1996 Ministerial Determination have been paid as per records kept by Barrick and landowners who associated themselves with PRAMA are not entitled to sediment payments. Barrick does not hold any outstanding payments under the 1996 Ministerial Determination. Annexed and marked with the letter “C” is a copy of a Report prepared by Barrick’s Lands team on the disbursement of payments under the 1996 Ministerial Determination.

13. I confirm that there are no payments due and owing under the 1996 Ministerial Determination to PRAMA members and either to Opis Papo or David Mandi. Those payments have been disbursed and received by affected landowners. ”

67. The affidavit of Bart Aloitch filed for Barrick on 14 November 2018 confirms the payments made by Barrick to Opis Papo and David Mandi as past and current chairmen of PRAMA. Mr Aloitch states in his affidavit that as at 2018 he was the Lands Manager for Barrick’s Community & Social Responsibility Unit and that he has access to Barrick’s internal records relating to payment of compensation monies made to landowners.
    
68. Bart Aloitch deposes in his affidavit that Opis Papo belongs to the Pene Clan and that David Mandi belongs to the Tondopo Clan. Bart Aloitch says that Barrick’s normal compensation payment process is for clan agents to authorise their relatives to collect payments and that this authorisation from clan agents is made either by letter or by verbal consent in person or by phone. Barrick’s Community Relations Officers or CROs are responsible for obtaining consents from the clan agents. The CROs advise Mr Aloitch’s Community & Social Responsibility Unit when to proceed with approved compensation payments. In cases where a CRO cannot get consent from a clan agent who is not present, the CRO advises Bart Aloitch’s Unit not to proceed with the payment.
    
69. Annexures to Mr Aloitch’s affidavit comprise:

(1) Annexure marked “A” – copy of a sample of an Authorisation form from a CRO responsible on behalf of Barrick to attend to payment of an amount of agreed compensation.

(2) Annexure marked “B” – copy of photograph of David Mandi collecting one of the compensation payments made by Barrick for tailings damage under item (ii) of the 1996 Ministerial Determination.

(3) Annexure marked “C” – copy of payments distribution list from the CROs which confirmed that Opis Papo had consented to his relatives collecting tailings compensation payments on his behalf.

(4) Annexure marked “D” – copy of list of tailings compensation payments made by Barrick to Opis Papo and David Mandi under the 1996 Ministerial Determination.

70. Dunstan Patalo and Bart Aloitch both attended this Court at the substantive garnishee hearing on 12 December 2018 and were cross-examined by counsel for PRAMA on the matters which they had deposed to in their affidavits. The cross-examination of Dunstan Patalo and Bart Aloitch produced no responses adverse to the evidentiary content of the matters they had deposed to in their affidavits. Their responses under cross-examination augmented rather than detracted from their affidavit evidence.
    
71. In short, Barrick points out that PRAMA and those of its members who are defendants in these garnishee proceedings have received all payments for loss of access to alluvial gold and for tailings discharge to which they were entitled under items (i) and (ii) of the 1996 Ministerial Determination. Barrick submits that the defendants have no entitlement to compensation for sediment impact under items (iii) and (f) of the Determination.
    
72. Barrick accordingly submits that unless and until such time as PRAMA and its members can persuade a court of competent jurisdiction that they have a provable entitlement based on scientific evidence to compensation from Barrick for sediment impact compensation under items (iii) and (f) of the 1996 Ministerial determination, there is no debt or money owed by Barrick to PRAMA and its members that can be attached in these garnishee proceedings and there are no funds held by Barrick for PRAMA and its members in connection with any alleged entitlement to sediment impact compensation that can be garnisheed from Barrick.
    
73. In answer to Barrick’s position, PRAMA vigorously asserts that it and the other defendants in this proceeding do indeed have an entitlement under items (iii) and (f) of the 1996 Ministerial Determination for sediment impact damage which has never been paid by PJV or Barrick.
    
74. PRAMA’s position is succinctly stated at paragraph 50 of the parties’ Statement filed on 29 November 2018 as follows:

“ 50. Contrary to PVJ or BNL’s claims that it was paying to the landowner agents in compliance with the 1996 Ministerial Determination, the Defendants have not been paid their entitlements of the sediment payments (K0.025/tonne) to date for the last 20 plus years since 1996 despite many written requests for their entitlements to be paid. ”

75. PRAMA has filed voluminous affidavit material in these garnishee proceedings going to several thousand pages in support of its alleged entitlement to more than 20 years of sediment impact compensation. PRAMA has filed a total of 10 affidavits in support of its alleged entitlement to sediment impact compensation:

(1) affidavit of Sole Taro filed 29 August 2016

(2) affidavit of Opis Papo filed 22 August 2016

(3) affidavit of David Mandi filed 28 September 2016.

(4) affidavit of Opis Papo filed 14 September 2018

(5) affidavit of David Mandi (3 volumes) filed 14 September 2018

(6) affidavit in reply of Opis Papo filed 24 October 2018

(7) affidavit in reply of David Mandi filed 24 October 2018

(8) affidavit in reply of Opis Papo filed 23 November 2018

(9) affidavit in reply of David Mandi (2 volumes) filed 23 November 2018

(10) supplementary affidavit of Opis Papo filed 23 November 2018.

76. At the garnishee hearing on 12 December 2018, PRAMA relied on 9 of the above affidavits. This was after counsel for PRAMA indicated that the defendants were withdrawing from reliance on the 3-volume Affidavit of David Mandi filed on 14 September 2018.
77. Having carefully inspected the 9 affidavits relied on by PRAMA, I find that none of them address the crucial issue in these garnishee proceedings, which was for PRAMA to substantiate if it could by evidence that there is a genuine debt or money currently owed by Barrick to it and to Opis Papo, David Mandi and the other 205 defendants represented by PRAMA in this proceeding.
    
78. All of the affidavit material adduced in evidence by PRAMA in these garnishee proceedings relates to a perceived entitlement for compensation for sediment impact damage under items (iii) and (f) of the 1996 Ministerial Determination. I find that PRAMA has gone to extraordinary lengths through the filing of its many affidavits, none of which are directly on point, in its endeavours to try to convince this Court that Barrick owes PRAMA and the other defendants in this proceeding compensation monies for sediment impact damage payable under item (iii) and (f) of the 1996 Ministerial Determination.
    
79. I note that in separate litigation which Opis Papo commenced against Barrick on 5 February 2018 in WS No. 53 of 2018, Opis Papo claimed injunctive relief and judicial declarations, among others, that PJV or Barrick had failed to comply with all of the terms of the 1996 Ministerial Determination and that Barrick had refused to pay compensation assessed under that Determination.
    
80. A decision by the National Court in connection with Opis Papo’s case in WS No. 53 of 2018 was still pending when these garnishee proceedings were heard on 12 December 2018. However, I am aware that the Court’s decision in WS No. 53 of 2018 was delivered by Hartshorn J on 28 August 2019 and is reported as Papo v Barrick (Niugini) Ltd (supra). His Honour had no hesitation in dismissing that case as being statute-barred because although Opis Papo had not specifically pleaded that his causes of action against Barrick were founded in tort or contract, it was apparent to his Honour that the claims were based upon tort for damage allegedly caused to land, and possibly contract, for supposed breaches of a Special Mining Lease and an environmental permit and for not receiving compensation to which Opis Papo alleged he and others were entitled under the 1996 Ministerial Determination. His Honour found that Opis Papo’s claims were statute-barred under Section 16(1) of the Frauds and Limitations Act 1988 because they were brought in 2018, well after the expiration of six years from when Opis Papo’s causes of action in tort and possibly contract had accrued back in 1996.
    
81. If PRAMA was anticipating that the decision in Papo v Barrick (Niugini) Ltd would support its position in these garnishee proceedings, the decision in that litigation did nothing of the sort.
82. As for the Yapao Estate, the Estate’s position on its motion seeking a substantive order for Barrick as garnishee to pay the debt attached from monies which Barrick allegedly owes to PRAMA for sediment damage simply mirrored the same stance as that taken by PRAMA. The position of the Yapao Estate, represented by its administrator Tyson Yapao, is summarised at paragraph 79 of the written submission filed for the Estate on 27 November 2018, which reads as follows:

“ 79. Hence, it is fair and just that the long outstanding sedimentation impacts compensation be paid to PRAMA members as that is lawful compensation money due and payable under Terms (f) and (h) of the 1996 Ministerial Determination. ”

83. Yet nowhere in the submissions for the Yapao Estate is there any attempt to substantiate why and how the perception of PRAMA and its members that they are entitled to compensation money for sediment impact damage has been translated into scientific evidence sufficient to establish that that entitlement exists under items (iii) and (f) of the 1996 Ministerial Determination.
    
84. What by now must be transparently obvious from this analysis of the affidavit evidence adduced for the various parties in this proceeding is that PRAMA’s claim to entitlement of compensation for sediment impact damage under the 1996 Ministerial Determination is seriously in dispute. It is not for these garnishee proceedings to resolve that dispute. All that is required of Barrick to defeat Tyson Yapao’s motion for a final garnishment order is to establish to the Court’s satisfaction that there is a genuine dispute as to whether Barrick owes any money to PRAMA which could provide the source of payment to the Yapao Estate of the judgment debt owed by PRAMA and the other defendants to the Estate.
    
85. It is at this juncture that the analogous principles I have adopted relating to a disputed debt in proceedings under s.338 of the Companies Act become relevant. Those principles, enunciated in The PNG Balsa Company Ltd v New Britain Balsa Company (supra) and the two other cases I have cited, can be summarised as follows:

(1) Mere assertions of the existence of a dispute are insufficient.

(2) To demonstrate that there is a substantial dispute, an applicant must show a fairly arguable case that it is not liable to pay the amount claimed.

(3) The onus is on the applicant to establish that there is a substantial dispute.

(4) Where satisfactory proof has been given that a substantial dispute exists, the matter should be resolved by other means.

86. The question arises: Has Barrick in this instance shown by appropriate material or cogent evidence a fairly arguable basis to justify its contention that a substantial dispute exists between the parties as to whether Barrick owes any compensation or other monies to PRAMA and the other defendants?
    
87. I am satisfied that Barrick has indeed discharged its onus to establish it has a fairly arguable case that a substantial dispute exists between itself and PRAMA and the other defendants. The affidavits of Dunstan Patalo and Bart Aloitch have clearly articulated Barrick’s reasons why it contends PRAMA and the other defendants have no entitlement to the sediment component of the 1996 Ministerial Determination.
    
88. The affidavit of Dunstan Patalo explains why the members of PRAMA were entitled to compensation for loss of access to alluvial gold and for tailings discharge under items (i) and (ii) of the 1996 Ministerial Determination but not for sediment impact caused by the operation of the Porgera Gold Mine.
    
89. In paragraph 9 of his affidavit, Dunstan Patalo confirms by reference to other affidavit material that the former chairman of PRAMA, Opis Papo, received payments under items (i) and (ii) of the 1996 Ministerial Determination amounting to over K1.7million as compensation.
    
90. The affidavit of Bart Aloitch has annexed to it summaries of payments made under items (i) and (ii) of the 1996 Ministerial Determination to Opis Papo and David Mandi representing their respective clan members, those payments totalling K2,455,915.66 prior to 2017.
    
91. Annexed to the affidavit of Bart Aloitch is a photograph of David Mandi receiving K14,000 for tailings compensation under item (ii) of the 1996 Ministerial Determination, this amount being just one of the many compensation payments made by Barrick under the Determination to the clans represented by Opis Papo and David Mandi.
    
92. The affidavit evidence of Dunstan Patalo and Bart Aloitch is extensive and was not undermined or impugned in any way during their cross-examination at the substantive garnishee hearing. Having produced cogent evidence in support of Barrick’s position that there is a genuine dispute, it was then for PRAMA to rebut that evidence by endeavouring to establish that there is no substantial dispute. In my view, the lengthy affidavit material filed for PRAMA in these garnishee proceedings only served to support Barrick’s position.
    
93. As I have indicated, nowhere in the 9 affidavits relied on by PRAMA at the substantive garnishee hearing is there any evidence which would tend to indicate that Barrick has ever accepted that it is liable to pay sediment impact compensation under items (iii) and (f) of the 1996 Ministerial Determination to PRAMA or to any of the other defendants. It is PRAMA that has made mere assertions and then failed to produce any evidence tending to substantiate assertions of entitlement to sediment impact compensation under the 1996 Ministerial Determination. Assumption of that entitlement in the absence of proof of entitlement by PRAMA and the other defendants has been insufficient to counter Barrick’s position.
    
94. I find on the evidence adduced in these garnishee proceedings that PRAMA conveyed the fundamental misconception to its own members and also to the late George Yapao, and then later to Tyson Yapao as administrator of the Yapao Estate, that Barrick owed sediment impact compensation under items (ii) and (f) of the 1996 Ministerial Determination and that entitlement to that compensation was not, or could not, be disputed on PRAMA’s evidence.
    
95. I consider that these garnishee proceedings should never have been pursued by Tyson Yapao for the estate of his late father in circumstances where it must have become obvious after service of the garnishee notice on Barrick on 24 November 2015 that Barrick was seriously disputing any liability on its part to pay sediment impact compensation to PRAMA and the other defendants.
    
96. The relief sought by the late George Yapao when he commenced this proceeding WS No. 1053 of 1997 was for judgment against PRAMA and its members Yaliman Pawe and others for non-payment of his legal fees claimed at K1.52 million and interest thereon of 8% per annum and costs. The relief pleaded in this proceeding by the late George Yapao and pursued by Tyson Yapao for the Yapao Estate was never predicated on the National Court being required to determine the validity or otherwise of any claim by PRAMA and its members to entitlement to sediment impact compensation under the 1996 Ministerial Determination. That issue only surfaced in this suit after garnishee proceedings were instituted by Tyson Yapao as administrator of the Yapao Estate and after Barrick had made it known that it disputed any allegation that it owed compensation or other monies to PRAMA and its members for sediment impact compensation under the 1996 Ministerial Determination.
97. I find that Barrick has established well beyond the civil standard of proof on balance of probabilities that there is indeed a genuine dispute as to its liability to pay compensation monies to PRAMA and the other defendants pursuant to items (iii) and (f) of the 1996 Ministerial Determination.
    
98. For these reasons I have determined that Issue 3 has been resolved in the negative. PRAMA has been unable to establish that Barrick has any proven debt owed to PRAMA and the other defendants in WS No. 1053 of 1997 that could provide a source of payment capable of attachment in these garnishee proceeding to satisfy the judgment debt which PRAMA owes to the Yapao Estate. There is no evidence of a debt due and owing by Barrick to PRAMA and the other defendants capable of attachment by the Yapao Estate.
    
99. Accordingly, the garnishee notice issued to Barrick in these proceedings on 24 November 2015 pursuant to leave of the Court granted on 23 November 2015 will be set aside and these garnishee proceedings dismissed, The costs of Barrick of and incidental to these garnishee proceedings are to be paid, jointly and severally, by the Yapao Estate and PRAMA on a party/party basis, such costs to be taxed if not agreed. The Yapao Estate, PRAMA and the defendants represented by Yaliman Pawe are to each bear their own costs of and incidental to these garnishee proceedings.
    
100. If PRAMA wishes to pursue its disputed claim to entitlement for monies alleged to be owing to its members by Barrick under the 1996 Ministerial Determination, PRAMA must do so in entirely different proceedings. Given the findings of Hartshorn J in Papo v Barrick as to the statutory time bar, that could be a difficult prospect.
     

ORDER MADE BY THE SUPREME COURT IN SCA NO. 98 of 2018

101. With reference to the decision of the Supreme Court in SCA No. 98 of 2017 delivered on 25 June 2018, I observe that the Supreme Court was not called upon in that appeal to determine the genuineness or otherwise of Barrick’s dispute as to its liability alleged by PRAMA that it owes compensation or other monies to PRAMA and the other defendants.
     
102. Term 4 of the Supreme Court’s order of 25 June 2018 directed the late George Yapao as judgment creditor (who had died on 3 October 2016) and Yaliman Pawe and the persons he represents in this proceeding WS No. 1053 of 1997 and PRAMA (or rather the members of PRAMA) as judgment debtors to meet at a date and place in Porgera to be agreed and to continue the meeting partly conducted on 5 June 2018 which was the subject of term 2 of the order made by Kandakasi J in this proceeding on 21 April 2017. There was eventual compliance with term 4 of the Supreme Court’s order, with Tyson Yapao’s counsel representing the Yapao Estate, but the consents signed by 207 defendants in this proceeding in August 2018 at Porgera simply reflected the misconception that those defendants had that PRAMA’s allegation that Barrick still owed compensation for subsidence impact under the 1996 Ministerial Determination was not in dispute. That allegation by PRAMA has at all material times in these garnishee proceedings been very much in dispute by Barrick. It was not an issue the Supreme Court had determined in favour of PRAMA. The issue as to whether there was a genuine dispute regarding the entitlement or otherwise of the members of PRAMA to compensation of sediment impact damage is one that was not touched on by the Supreme Court in SC No. 98 of 2017. That issue remained open for this Court to decide.
     
103. As for term 6 of the Supreme Court’s order, this in effect directed Tyson Yapao for the Yapao Estate, Yaliman Pawe and PRAMA to “use their best endeavours to agree on a minute of Consent Orders for consideration and adoption by the National Court in settlement”. Term 6 of the Supreme Court’s order requires the National Court to consider the content of any such draft consent order. It must be axiomatic that the Supreme Court was not directing the National Court to heedlessly adopt any such draft order, especially if the National Court had cause, after proper consideration, not to adopt a negotiated draft order. I rule that the National Court does indeed have proper cause for the reasons given not to adopt term 1 of the draft order proposed by the Yapao Estate, Yaliman Pawe and PRAMA because, in the final result, these garnishee proceedings are to be dismissed. Barrick has satisfied this Court that there is a genuine dispute as to its liability to pay any monies to PRAMA pursuant to items (iii) and (f) of the Ministerial Determination.
     
104. When concluding the submissions for the Yapao Estate, its counsel invited this Court to endorse a draft consent order which is annexure “D” to the affidavit of Tyson Yapao filed in these garnishee proceedings on 24 September 2018.
     
105. The draft consent order was signed by Jerry Siki of Greg Manda Lawyers, counsel for Tyson Yapao and the Yapao Estate, and by Rex J. Mann-Rai of Mannrai Lawyers, counsel for PRAMA and the other defendants. The draft consent order seeks the following relief:

“ 1. Pursuant to the consent forms signed by the First and Second Defendants/judgment debtors dated 16^th and 17^th August, 2018 annexed to the Affidavit of David Mandi, Barrick (Niugini) Ltd/garnishee is ordered to settle the Plaintiff’s judgment debt in the sum of K1,659,822 in full in a lump sum payment from the sedimentation impacts compensation entitlement under the 1996 Ministerial Determination.

2. Pursuant to Term 8 of the Supreme Court Orders of 25^th June, 2018 in the Supreme Court proceedings titled: SCA No. 98 of 2017; George T. Yapao trading as Yapao Lawyers -v- Yaliman Pawe & Ors , costs of the garnishee proceedings and the costs of the said Supreme Court proceedings be reserved to be determined by the National Court. ”

106. I decline to make any order which reflects term 1 of the draft consent order. Term 1 is inapplicable as these garnishee proceedings are to be dismissed for the reasons I have given.
     
107. Term 2 of the draft Order goes to the matter of the costs of these garnishee proceedings and the costs of Tyson Yapao’s appeal in SCA No. 98 of 2017. I deal with the question of those costs below.
     

WHAT FURTHER ORDERS SHOULD THE COURT MAKE?

108. I have ruled that the garnishee proceedings in this suit are to be dismissed, the Yapao Estate and PRAMA to be jointly and severally liable to pay Barrick’s costs of and incidental to the garnishee proceedings on a party/party basis, such costs to be taxed if not agreed. Where does that leave the remainder of this suit in WS No. 1053 of 1997?
     
109. The Yapao Estate may have been unsuccessful in its garnishee proceedings but the Estate has nevertheless obtained all relief that was originally sought by the late George Yapao. The Estate has the benefit in this suit of:

(1) the judgment debt of K1,414,577.56 ordered by Kandakasi J on 5 March 2015; and

(2) interest at 8% per annum on that judgment debt amounting to K103,623.25 for the period 3 February 2015 to 16 December 2015, as directed by order of the Supreme Court in SCA No. 38 of 2015 dated 16 December 2015; and

(3) the award of costs for this proceeding WS No. 1053 of 1997 up to 16 December 2015 and thereafter, as well as the costs of the appeal in SCA No. 38 of 2015 as per the Supreme Court’s order dated 16 December 2015; and

(4) the costs of the appeal in SCA No. 98 of 2017 reserved for decision by the National Court as per the Supreme Court’s order dated 25 June 2018.

110. On making the order for the dismissal of the garnishee proceedings, I propose to adjourn the residue of this proceeding in WS No. 1053 of 1997 to a date to be notified by the Registry to the parties’ counsel for submissions to be made regarding the terms of the final order to issue by the Court on the disposition of this proceeding, including terms dealing with:

(1) the remaining interest, if any, to be awarded to the Yapao Estate on the judgment debt pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015; and

(2) the remaining costs, if any, to be payable by the defendants to the Yapao Estate.

ORDER

111. The terms of the formal order of the Court made today are as follows:

(1) The garnishee notice issued to Barrick (Niugini) Limited as garnishee in these proceedings on 24 November 2015 pursuant to leave of the Court granted on 23 November 2015 is set aside.

(2) The garnishee proceedings against Barrick (Niugini) Limited are dismissed.

(3) The costs of Barrick (Niugini) Limited of and incidental to the garnishee proceedings are to be paid, jointly and severally, by the Plaintiff/Judgment Creditor and the Second Defendant/Judgment Debtor on a party/party basis, such costs to be taxed if not agreed.

(4) The Plaintiff/Creditor, the First Defendants/Judgment Debtors and the Second Defendant/Judgment Debtor are to each bear their own costs of and incidental to the garnishee proceedings.

(5) The residue of this proceeding in WS No. 1053 of 1997 is adjourned to a date to be notified by the Registry to the parties’ counsel for submissions to be made regarding the terms of the final order to issue by the Court on the disposition of this proceeding, including terms dealing with:

(a) the remaining interest, if any, to be awarded to the Plaintiff/Judgment Creditor on the judgment debt pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015; and

(b) the remaining costs, if any, to be payable by the First Defendants/Judgment Debtors and the Second Defendant/Judgment Debtor to the Plaintiff/Judgment Creditor.

(6) The time for entry of this Order is abridged to the time of signing by the Court which shall take place forthwith.

Ordered accordingly
__________________________________________________________________
Greg Manda Lawyers: Lawyers for the Plaintiff/Judgment Creditor
Mannrai Lawyers: Lawyers for the First Defendants/Judgment Debtors and Second Defendant/Judgment Debtor
Ms Gertrude Tamade Elai: In-house lawyer for the Garnishee