Jonah v Katumani Incorporated Land Group (Reg ILG No. 646) [2023] PGNC 227; N10399 (11 July 2023)

N10399

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 18 OF 2021

BETWEEN:
ELIAS JONAH
Appellant

AND:
KATUMANI INCORPORATED LAND GROUP (REG ILG NO. 646)
Respondent

Lae: Dowa J
2023: 7^th & 11^th July

PRACTICE AND PROCEDURE-Application for judgment under Order 22 Rule 62 NCR is discretionary-principles applicable-Court has discretion to refuse judgment where cost is high and not reasonable-no material to show cost was not reasonable-judgment entered.

Cases Cited:

PNG Power Ltd -v- Gura (2014) SC1402

Counsel:

E. Tierane, for the Appellant
B. Apupu, for the Respondent

RULING

11^th July, 2023

1. DOWA J: This is a ruling on an application to convert the Respondent’s taxed cost into a judgment under Order 22 Rule 62 of the National Court Rules.

Background

2. The Appellant filed an appeal against the eviction orders issued by the District Court in Lae on 8^th April 2021. After several Court attendances at the National Court, the Court dismissed the appeal and awarded cost in favour of the Respondent on 27^th February 2023. The cost was taxed on 21^st April 2023 and allowed at K18,645.00. The Certificate of taxation was served on the Appellant’s lawyers on 2^nd May 2023. The taxed cost remains outstanding.

Application

3. The Respondent applies, by Notice of Motion, to the Court on 7^th July 2023, seeking judgment on the taxed cost under Order 22 Rule 62 of the National Court Rules. The Respondent relies on the Affidavit of Steven Kesno in support of the application.

4. Ms Tienare, counsel for the Appellant, opposes the application on the basis that the taxed cost is high and not reasonable. She relies on a Supreme Court decision in PNG Power Ltd -v- Gura (2014) SC 1402 which held that the National Court has a discretion to refuse entry of judgment on an application made under Order 22 Rule 62 of the National Court Rules if the taxed cost is high and not reasonable.

5. I had the opportunity to read the Supreme Court decision and appreciate counsel for alerting the Court to this decision. In the PNG Power case, the taxed cost was for K349,000. The material before the National Court was that the parties had legal representation at the final hearing which lasted about an hour. Although the trial Judge noted the costs were high, he proceeded to enter judgment because the Appellant did not challenge the taxed costs as allowed by the Rules and sat on its rights. The Supreme Court held that there was material presented before the lower Court which showed the cost was unreasonable and the National Court had the discretion to refuse entry of judgment which the trial judge failed to exercise.

6. The PNG Power case sets out important principles in the application of Order 22 Rule 62 of the National Court Rules which are:

1. An application for entry of judgment for costs is discretionary.
   
2. The Court has a discretion to refuse judgment where material presented shows cost is high and not reasonable.
   

100. A failure to apply for review of taxed costs under the Rules is no bar to the exercise of discretion in the interest of justice.
     

7. I will apply the above principles to the present case. Firstly, the facts in PNG Power are different to the present case. The taxed cost in the present case is for K18, 645.00. The Court file shows, there were twelve (12) Court attendances made by counsel for the Respondent. The appeal involves two volumes of Appeal Books containing 500 pages. Detailed written submission was filed by counsel for the Respondent. A perusal of the Bill of Cost shows numerous correspondences and telephone attendances were done between the parties. On the other hand, the Appellant has not provided any material before the Court in support of his contention except to argue that the costs were unreasonable.

8. Putting the matter in perspective, cost is not that unreasonable, although it could have been reduced, had the lawyers for Appellant made appearance before the taxing officer and raised objections to costs claimed in the taxable bill. Counsel for the Appellant admitted they did not attend for various reasons. The Appellant has made no attempt to seek review of the taxed cost after it was served on them on 2^nd May 2023. As I said, there is no material that suggest the taxed cost is unreasonable.

9. Order 22 Rule 62 of the National Court Rules gives the Court the discretion to enter judgment for the taxed cost. As there is no application for review before the Court, and no material is presented for the Court to refuse judgment, the Court shall exercise its discretion to enter judgment for the taxed cost in favour of the Respondent.

Cost

9. The cost is a matter of discretion. The Respondent has successfully sought the orders in the application and is therefore entitled to the cost.

Orders

10. The Court orders that:

1. Judgment be entered for the Respondent against the Appellant in the sum of K18,645.00 being the Certified taxed cost of the Respondent dated 21^st April 2023.
   
2. The Appellant shall pay interest at 8% per annuum on the judgment sum from 21^st April 2023 until settlement.
   
3. The Appellant shall pay the cost of the Application to be taxed, if not agreed.
   
4. Time be abridged.
   

________________________________________________________________

Public Solicitor: Lawyer for the Appellant

Kesno Lawyers: Lawyer for the Respondent