Ipara v Porgera SML Landowners Children's Investment Fund [2022] PGSC 23; SC2211 (3 March 2022)

SC2211

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 74 OF 2017
SCA 69 OF 2018
SCA 70 OF 2018

BETWEEN:
KURUBU IPARA
AND OTHERS
Appellants

AND:
PORGERA SML LANDOWNERS
CHILDREN’S INVESTMENT FUND,
PORGERA LANDOWNERS ASSOCATION INCORPORATED
AND OTHERS
Respondents

Waigani: Logan J
2022: 3^rd March

PRACTICE AND PROCEDURE – COSTS – Entry of judgment after failure to pay taxed costs as certified – Whether to fix costs of application for judgment

Facts:

Taxed costs as certified by a Registrar not having been paid after service of the certificate and more than 14 days having thereafter elapsed without those costs having been certified, the court entered judgment for the sum certified pursuant to Order 12, Rule 36(3) of the Supreme Court Rules 2012. Application was then made for the costs of the application for judgment to be fixed.

Held:

1. The court has power pursuant to Order 12, Rule 5(c) of the Supreme Court Rules 2012 to fix a sum in gross. Rather than to require yet a further taxation in respect of what is, truly, an incidental application in respect of another party who apparently is just not disposed to pay costs as certified without entry of judgment, costs should be fixed by the Court pursuant to that rule.
2. Because but one appearance was necessary in respect of three applications heard together, allowance should be made in fixing costs so as not to over-compensate the party seeking judgment.
   

Legislation:

Supreme Court Rules 2012

Counsel:

Mr. J Haiara, for the Appellants
Ms. J Nandape, for the Respondents

Oral decision delivered on
3^rd March 2022 (As revised)

1. LOGAN J: It is convenient to deal with proceedings SCA 74 of 2017, SCA 69 of 2018 and SCA 70 of 2019 together. In each of these cases, costs have been taxed out and certified by a Registrar. In each case, the resultant certificate of taxation has been served. In each case, I am satisfied by the affidavit read in support of the relevant application that more than 14 days have passed after the service of the certificate without the amount specified in that certificate having been paid or otherwise satisfied.
   
2. I am also satisfied that notice of the application has been duly served.
   
3. I am not satisfied that there is any good reason why, the elements necessary for judgment pursuant to Order 12, Rule 36(3) of the Supreme Court Rules 2012 having been proved, the Court should not proceed to direct that judgment in each of the matters for the sum certified be entered accordingly.
   
4. There is a question as to whether to direct that the costs of and incidental to each application be taxed or as is promoted for the applicant that they be fixed in gross pursuant to Order 12, Rule 5(c) of the Supreme Court Rules. I consider that it is that particular rule which is in each instance apt. I do so because it would be having regard to an evident lack of disposition to pay costs certified inconvenient to say the least to require a further taxation of costs in respect of what is truly an incidental aspect to the taxation of costs.
   
5. It has been a necessary step to be taken in each of these cases for an application for judgment to be made. I am satisfied that each application has been made on instructions.
   
6. The whole point of the rules in requiring that a certificate of taxation be served and then not permitting judgment to be entered without allowing at least 14 days for payment of the costs as certified is to allow the party against whom the costs order has been made to have the opportunity to save further costs by satisfying the costs as certified by a Registrar without any need for the other party, in whose favour the costs order has been made, to apply to the court for judgment.
   
7. As to the fixing of costs, it seems to me that in each case it has been necessary to incur costs in respect of the taking of instructions in respect of an application for costs, the preparing, filing and serving of the application concerned, together with the preparing, filing and serving of an affidavit in support and in turn serving the same. The only question which seems to me raised for consideration beyond that is that there has been a need but for one appearance. Thus, whilst I would be disposed, if there were but one application for judgment today, to fix costs in the amount of K1500, it seems to me I should make some allowance for the fact that there has been a need for but one appearance with the three applications conveniently them being heard together.
   
8. Taking into account amounts which might be allowed pursuant to various items under the rules as well as what seems to me to be a reasonable allowance for the professional work entailed in each of the steps mentioned but making allowance for but one appearance, the amount of costs which I fix pursuant to Order 12, Rule 5(c) in each instance is K1,000.
   
9. Thus, the orders respectively are as follows.
   
10. In SCA 69 of 2018, I order that judgment be entered against the appellants in the sum of K24,835, being the amount taxed and certified. I further order that the costs of and incidental to the application be fixed in gross in the amount of K1000. I further order that the judgment together with the sum fixed in respect of costs of the application may be satisfied by the appellants by the payment of the amount of the judgment and the amount fixed in respect of costs to the Nandape and Associates Lawyer’s trust account, the receipt of those lawyers in respect of such payment being good discharge in respect of the judgment debt and the debt in respect of fixed costs.
11. As to each of the other cases (SCA 74 of 2017 and SCA 70 of 2018), I make a like order save that the amount of the judgment will be the amount specified in the notice of motion, which in turn reflects the costs certified.
    
12. For the avoidance of doubt, I indicate that I have considered whether to enter judgment as against the respective appellants in a particular capacity. But it seems to me that judgment should go personally with the position then being that, as trustees, they would be entitled to be indemnified out of the trust fund in respect of which they are trustees. But the liability is personal. It is just that, as trustees, they have a right to indemnity out of the trust fund.
    

Orders

In proceedings SCA 74 of 2017

1. Judgment be entered against the appellant in the sum of K67,080.20, being the amount taxed and certified.
2. The costs of and incidental to the application be fixed in gross in the amount of K1,000.
3. The judgment, together with the sum fixed in respect of costs of the application may be satisfied by the appellants by the payment of the amount of the judgment and the amount fixed in respect of costs to the Nandape & Associates Lawyers trust account, the receipt of Nandape & Associates Lawyers of such payment being good discharge of the judgment debt and the debt is respect of fixed costs.
4. The orders be entered forthwith.

In proceedings SCA 69 of 2018

1. Judgment be entered against the appellant in the sum of K24,835, being the amount taxed and certified.
2. The costs of and incidental to the application be fixed in gross in the amount of K1,000.
3. The judgment, together with the sum fixed in respect of costs of the application may be satisfied by the appellant by the payment of the amount of the judgment and the amount fixed in respect of costs to the Nandape & Associates Lawyers trust account, the receipt of Nandape & Associates Lawyers of such payment being good discharge of the judgment debt and the debt is respect of fixed costs.
4. The orders be entered forthwith.

In proceedings SCA 70 of 2018

1. Judgment be entered against the appellant in the sum of K30,649, being the amount taxed and certified.
2. The costs of and incidental to the application be fixed in gross in the amount of K1,000.
3. The judgment, together with the sum fixed in respect of costs of the application may be satisfied by the appellant by the payment of the amount of the judgment and the amount fixed in respect of costs to the Nandape & Associates Lawyers trust account, the receipt of Nandape & Associates Lawyers of such payment being good discharge of the judgment debt and the debt is respect of fixed costs.
4. The orders be entered forthwith.

__________________________________________________________________
Haiara’s Legal Practice: Lawyers for the Appellants
Nandape & Associates Lawyers: Lawyers for the Respondents