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Aeno (trading as Namona Investments Ltd) v Jack [2024] PGNC 82; N10739 (15 April 2024)

N10739

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CIA NO 30 OF 2018


BETWEEN:
JENO AENO and KAI AENO Trading as NAMONA INVESTMENTS LIMITED
Appellant/Respondents


AND:
ABRAHAM JACK
Respondent/Applicant


Waigani: Purdon-Sully J
2024: 11th April


PRACTICE & PROCEDURE - Application for entry of judgment on certified costs - Jurisdiction of National Court - National Court Rules - Order 22, Rule 62 - Certificate of taxation conclusive evidence of liability - Affidavit evidence of non-payment of taxed costs conclusive evidence of default - no persuasive authority advanced that application for entry was premature – time from which interest to be paid – costs order – costs should be fixed


Cases Cited


Thirwall -v- Eng Chin Ah & Ors [1988-89] PNGLR 34
Kaiulo v Yaluma [2008] PGNC 157; N3507
Tolom Abai & 765 Ors v The Independent State of Papua New Guinea [1997] PGNC 125; N1636
Pinzger v. Bougainville Copper Ltd [1985] PNGLR 160


Legislation


Order 22 Rule 62 of the National Court Rules
Section 3 of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter 52.
Counsel


R. Pokea, for the Applicant
R. Obora, for the Respondents


DECISION

15th April 2024


  1. PURDON-SULLY J: By Notice of Motion filed 4 April 2024 Abraham Jack, the respondent in appeal proceedings now determined sought the following orders:
  2. By draft orders handed to the Court at the hearing of this matter on 11 April 2024 Mr Jack sought the following orders:

(1) Judgment is entered on taxed costs for the sum of K23,959.30 against the Appellants/Respondents and to be made payable within 14 days to Pokea & Associates Lawyers Trust Account.


(2) Interest of 8% be paid, calculated from the time the Application for Taxation was filed to the date of this Order and to be made payable within 14 days together with the taxed costs to Pokea & Associates Lawyers Trust Account.


(3) Cost of the Application fixed at K 2,000.


(4) Time for entry of these Orders is abridged to take place forthwith upon the Court signing them.


  1. The application is opposed by the appellants, who are the respondents to the Notice of Motion, Jeno Aeno and Kai Aeno trading as Namona Investments Limited. They seek the dismissal of the application with costs.
  2. In these reasons I shall refer to Mr Jack as the applicant and the other parties as the respondents.
  3. The applicant relies upon his Notice of Motion, affidavit filed 4 April 2024 and written submissions dated 11 April 2024.
  4. The respondents filed no material relying on their oral submissions.
  5. There was one document admitted into evidence namely the judgment of the District Court at Port Moresby the subject of an unsuccessful appeal by the respondents and the genesis of the costs order the subject of this dispute.

CONTEXTUAL BACKGROUND


  1. This matter has had a long court history, the relevant contextual background as follows:
    1. The applicant instituted proceedings DC705 of 2017 in the District Court at Port Moresby,
    2. On 23 March 2019 he received a judgment in his favour against the respondents, Jeno Aeno and Kai Aeno, in the sum of K8,945.08 which sum was to be paid by 18 April 2018, the orders providing that in default a warrant issue to bring the respondents before the Court to explain why the payment had not been made (the District Court Order).
    1. The respondents, trading at Namona Investments Limited, initiated an appeal against the District Court Order in CIA 30 of 2018. Following a contested hearing on 3 February 2021 the respondents’ appeal was dismissed. The orders of a Judge of this Court, read as follows:

(1) The Appeal is dismissed in its entirety as being without merit.

(2) The Orders of the District Court of 23rd March 2018 at first instance set out above are confirmed forthwith, and enforceable against the Appellants as ordered.

(3) The Appellants will pay the costs of the Respondent.

  1. At [5] of the applicant’s affidavit the applicant deposes to inter alia the District Court Order not having been satisfied with all Judgments remaining outstanding and contempt proceedings filed 21 May 2021 still pending. That evidence is not challenged by the respondents.
  2. On 7 May 2021 the applicant filed for taxation with respect to the costs awarded to him of the appeal.
  3. On 11 October 2023 Mr Baka Bina, Deputy Registrar National Court and taxing officer, taxed the applicants Bill of Costs dated 12 May 2021 ex parte, certifying a taxed sum of K23,959.30.
  4. The respondents were in possession of that Certificate of Taxation at least by 25 October 2023, as evidenced by their letter to the applicant’s lawyer of that date in which they made reference to it, and indeed enclosed a sealed copy of it in their letter. In that letter the respondents made an offer to settle the taxed costs on an instalment basis within a period of four (4) months at a rate of K5,989.85 per month, with the first payment to commence November 2023.
  5. The letter went on to note that if the client was able to find ‘good money’ within four (4) months before February 2024 (when the final instalment payment was due on their proposal), then the balance would be settled by way of a one off payment.
  6. In the third last paragraph of the letter the respondents’ lawyer said this:

Our client apologies for any inconvenience this arrangement would cause to your client.


  1. By letter dated 26 October 2023 the applicant accepted the respondents’ proposal, seeking that the monthly payment be made on the first week of every month beginning November 2023.
  2. Whilst their proposal accorded with the commencement of the instalment payments as proposed by the respondents, namely November 2023 there was no response to that letter.
  1. The evidence of the applicant at [10] of his affidavit is that his lawyer replied by letter dated 26 October 2023 accepting the payment however the respondents did not pay. That evidence is unchallenged.
  1. At para [11] of the same affidavit the applicant deposes to numerous telephone calls being made requesting payment however, although promises were made to pay, no payments were made to satisfy the taxed costs. That evidence is unchallenged.
  2. On 4 April 2024, some five months after the offer was made by the respondents, the appeal costs as taxed still outstanding, the applicant made application to enter judgment on the taxed costs, the respondents having been served with a sealed copy of the Certificate of Taxation on 18 March 2024. That evidence is unchallenged.

ISSUES


  1. The issues for determination are as follows:
    1. Firstly, should the court enter judgment on the taxed costs of 9 October 2023 against the respondents and if so should the respondents be ordered to pay the costs within 14 days, Mr Obora for the respondents submitting that the entering of judgment would be premature as it had only been about 21 days since the applicant was served with the Certificate of Taxation and the applicant filed these proceedings, the applicants actions unreasonable in the circumstances, the applicant arguing that the respondents have been fully aware of the existence of the Certificate of Taxation since October 2023 and have not paid.
    2. Secondly, if judgment is entered from what date, if any, should interest accrue on any outstanding judgment, the respondents submitting that the provisions of Section 3(3) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52 make clear that they would have a 30 day period of grace within which to pay with interest only accruing from the end of the 30 day period on any unpaid amount, and the applicant seeking interest from the filing of a application for taxation albeit, Counsel for the applicant conceding in oral reply submissions he may have a difficulty maintaining that position.
    1. What costs order if any should be made on this application, the applicant seeking costs to follow the event and if successful that his costs be fixed at K2,000 given the long delays in this matter and the respondents seeking their costs if they are successful and if not successful that each party bear their own costs.
  2. The Court has had the benefit of oral submissions of the parties and written submissions of the applicant. I do not propose to respond to each and every submission made, however, in reaching a decision on the issues I am required to determine, I have considered all submissions.

CONSIDERATION


Should Judgment be entered?


  1. The applicant seeks in accordance with Order 22 Rule 62 of the National Court Rules (NCR) the entry of judgment for costs in the amount as certified by the Registrar. That Order is in these terms:

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 judgment for the costs as the nature of the case requires.


  1. The Certificate of Taxation in the sum of K23,959.30 is before the Court and is conclusive evidence of the liability. Further, the sworn evidence of the applicant of non-payment of taxed costs is conclusive evidence of default (Thirwall -v- Eng Chin Ah & Ors [1988-89] PNGLR 34). Mr Obora for the respondents makes no challenge to the quantum of the liability owing. He has placed on the record that his clients wish to pay the costs. Nor does he challenge that the costs remain unpaid.
  2. There is also evidence of attempts made by the applicant to get the respondents to pay the certified costs (Kaiulo v Yaluma [2008] PGNC 157; N3507 (Kaiulo).
  3. In the circumstances no persuasive submission was advanced on behalf of the respondents as to why judgment should not be entered for the applicant.
  4. The submission by learned Counsel Mr Obora for the respondents that the entry of judgment would be premature and the applicant has not been afforded a reasonable period of time to enable payment to be made is unpersuasive. There is no time prohibition in the rules precluding the applicant from seeking entry of judgment in the terms before the Court nor was the Court directed to persuasive authority to support the propositions Mr Obora urged on the Court as to why the applicant’s actions in seeking entry were either premature or unreasonable. If it was intended that there be a prohibition on the filing of proceedings by an aggrieved party or parties to seek the entry of judgment on taxed costs before a particular date or not before a particular period of time had expired it would be expected that there would be provision under Order 22 of the NCR expressly providing for same. As there is none, I find that it was not meant to be the case.
  5. The decision of Kaiulo (supra) relied upon by Mr Obora for the respondents does not, respectfully, assist the Court, the facts distinguishable from the present case. In that case, Makail AJ (as he then was) acknowledged that both the National and Supreme Court had powers to enter judgment on certified costs where there was default or failure by the unsuccessful party or parties to pay the certified costs and he could do so at that time. The question however was whether he should do so in the matter before him where there was a cross-application by the Electoral Commission to seek leave to review the decision of the Taxing Officer to certify the costs of K151,610.00 to the Respondent which must also be determined. His Honour determined that the Electoral Commission had properly come before the Court and further, the Court had jurisdiction to hear its application for leave for review out of time. Neither the applicant nor the respondents in the case before me sought to review the decision of the Taxing Officer. The period for review by either party has expired and there is no application before me for leave to review out of time.
  6. What prima facie resolution of the matter was effected by the parties in October 2023 by the applicant’s acceptance of the respondents’ compromise payment offer did not result in the satisfaction by the respondents of the outstanding liability which the respondents accepted they owed to the applicant. It is trite to observe that the applicant is not the respondents’ banker, and yet, that is what he has effectively become because of the respondents failure to pay the costs owing to him either in a lump sum or on the basis of the compromised instalment arrangement they proposed.
  7. Relevantly, the proposition advanced by Counsel for the respondents assumes evidence that enables the Court to conclude that if the entry of judgment is not made then the costs will likely be paid. The evidence is to the contrary. The facts are clear and they are these. The respondents owe the applicant a not insignificant amount of money. The respondents have known the amount they owe since at least 25 October 2023. The applicant is entitled to be paid. He should not have to engage the Court for assistance where there is no dispute on liability or quantum. The applicant made an unsuccessful attempt to get the respondents to pay what they owe, he accepting their offer of instalment payments one day after that offer was made. If the respondents intend to pay the money it is unclear to this Court why they have not already done so or sought to do so by way of instalment as a sign of their good faith, as they adduce no sworn evidence suggesting either internal or external factors prohibiting them from doing so. The evidence suggests that the applicant requires the assistance of the Court to secure payment by entry of judgment.
  8. It is trite to observe that payment by the respondents would have avoided the need for the Court to enter judgment at all. It would have avoided the need to argue the date from which interest should accrue because payment of the debt would not give rise to the issue of interest. In that context, and against a background of the unchallenged facts earlier outlined, the respondents’ opposition to entry of a costs judgment underscores the arguments advanced on behalf of the applicant as to why it is necessary to make such an order.
  9. In the result the Court is able to comfortably conclude that ‘the nature of the case requires’ the direct entry of judgment for costs and the making of order 1 of the Notice of Motion. Payment should be made within 30 days. No persuasive basis was mounted for payment to be made within 14 days, the respondents given 30 days to make the payment before interest accrues as provided in the NCR. Such payment should be made to the trust account of the lawyers for the applicant. This will ensure clarity and limit potential dispute.

Should interest be ordered and if so from when?


  1. No issue was taken by either Counsel with respect to the jurisdictional basis upon which the Court can grant interest on taxed costs being section 3(3) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter 52.
  2. Section 3 is in these terms:

INTEREST ON DEBT UNDER JUDGEMENT OR ORDER.


(1) Subject to Subsections (2) and (3), where judgement is given or an order is made for the payment of money, interest shall, unless the court otherwise orders, be payable at the prescribed rate from the date when the judgement or order takes effect on such of the money as is from time to time unpaid.

(2) Where, in proceedings on a common law claim, the court directs the entry of judgement for damages and the damages are paid within 30 days after the date of the direction, interest on the judgement debt shall not be payable under Subsection (1) unless the court otherwise orders. (3) Where, in proceedings for damages on a common law claim, the court makes an order for the payment of costs and the costs are paid within 30 days after the ascertainment of the amount of the costs by taxation or otherwise, interest on the costs shall not be payable under Subsection (1) unless the court otherwise orders.

(4) Notwithstanding anything in this section, where the judgement given or the order made is given or made against the State–

(a) the rate of interest payable under Subsection (1) shall not exceed 8% yearly; and

(b) any payment under Subsections (2) and (3) shall be deemed to have been made on the date of the drawing of the cheque for payment; and

(c) where the sum awarded is increased on appeal–interest shall only be payable on the increase in accordance with this Section from the date when the appellate judgement or order takes effect.


[Emphasis added]


  1. Learned Counsel for the applicant, Mr Pokea, conceded in submissions some difficulty with his application that interest should run from the time the Taxable Bill of costs was filed to settlement. Unless the Court orders, interest is automatically payable by operation of law after 30 days whilst a judgment remains unsatisfied. This is because of the use of the expression "interest shall, unless a court otherwise orders ..." imposes a mandatory obligation to pay interest. The discretion vested in the court is to make an order that interest is not payable (Tolom Abai & 765 Ors v The Independent State of Papua New Guinea [1997] PGNC 125; N1636). In this case, there is no persuasive evidence or submission as to why interest should not accrue on any unpaid amount owing by the respondents to the applicant after the 30-day period expires.
  2. As to the necessity of making any order with respect to interest given the mandatory provision outlined, I have concluded that such an order should be made. On first principles, interest is an amount that should be awarded to a party who is being kept out of money which ought to have been paid to him (Pinzger v. Bougainville Copper Ltd [1985] PNGLR 160 at [174]). In light of the history of this matter, to ensure clarity and consistent with the principles of commonsense and justice I have concluded that an Order in terms of Order 2 of the Notice of Motion should be made with amendment that interest at the rate of 8% be paid after 30 days whilst the payment of taxed costs of K23,969.30 or any balance remains unpaid, the payment of such interest to be made to the Trust Account of the applicant’s lawyer Mr Pokea.

What costs order should be made?


  1. With respect to costs, the interests of justice require that the applicant’s costs follow the event, that is are costs in the cause, such costs to be paid by the respondents. The applicant has been substantially successful. No cogently logical argument was advanced on behalf of the respondents as to why if the respondents were successful they should receive their costs but if the applicant was successful he should not.
  2. There is a further question and that is whether those costs should be fixed. The history of this matter which has occupied Court time over many years, and in the case of the Notice of Motion before me, has included contested argument by retained Counsel, underscored by the principles of common sense and justice, suggest there is merit in the Court exercising its discretion to fix the costs to avoid further dispute including further taxation in the event the parties are unable to reach agreement. The applicant seeks costs fixed at K2,000. Those costs are not particularised by evidence. I am not able to conclude that that circumstance prohibits the Court from fixing the quantum of costs to be paid where the quantum of the costs sought by the applicant was not challenged by the respondents. Further, the amount sought does not present prima facie as unreasonable given the material filed on behalf of the applicant, service effected on the respondent’s lawyer of the application and the time taken up by learned Counsel in argument before me. Costs are discretionary however the exercise of the Court’s discretion must be undertaken judicially. In informing my discretion in the matter I have also had the benefit by way of comparison of the taxed costs awarded to the applicant arising from the appeal.
  3. In my discretion I fix the applicant’s costs in K2,000 such sum to be paid to the trust account of the lawyers for the applicant within 30 days of this Order.

ORDERS


  1. I make the following orders:

Pokea & Associates Lawyers: Lawyers for the Applicant
R. Obora Lawyers: Lawyers for the Respondent

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