TSC Industries Ltd v Koim [2022] PGSC 27; SC2212 (3 March 2022)

SC2212

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 16 OF 2019

BETWEEN:
TSC INDUSTRIES LIMITED
Appellant

AND:
JOEL KOIM
Respondent

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.
   

Legislation

Supreme Court Rules 2012

Counsel:

Mr. K Kil, for the Appellant
Mr. N Pilamb, for the Respondents

Oral decision delivered on
3^rd March 2022

1. LOGAN J: The respondent has applied for a judgment as a consequence of the certification of taxed costs by the Registrar in the sum of K44,167.80. On the basis that the certificate having been served on the appellant and that sum remaining outstanding for more than 14 days, I am satisfied that judgment should be entered for that sum pursuant to Order 12, Rule 36(3) of the Supreme Court Rules 2012.
   
2. The respondent has also applied for the court to fix in gross the costs of and incidental to the application for judgment. It is, in my view, convenient to fix an amount 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. The court has power pursuant to Order 12, Rule 5(c) to fix a sum in gross.
   
3. The question which arises then is, in what sum? It has been put to me on behalf of the respondent that the work entailed required the devotion of professional time, the taking of instructions to make the application, related correspondence with those acting for the appellant, the drawing, filing and serving of the application for judgment together with the preparation, filing and serving of the affidavit in support and the appearance today.
   
4. Taking into account amounts which might be allowed were the question to go to taxation as well as a matter of impression as to what would be a reasonable sum in this jurisdiction to allow for the steps mentioned, my view is that, it would be appropriate to fix the incidental costs in the amount of K1,500. Upon that being put to the lawyer for the appellant, it was accepted that that sum would be reasonable.
   
5. Accordingly, the orders which I make are as follows:
   
   • (a) Pursuant to Order 12 rule 36(3) of the Supreme Court Rules, judgment be entered for the respondent’s costs against the appellant in the amount of K44,167.80.
   • (b) Pursuant to Order 12, Rule 5(c), I fix in gross the costs of and incidental to the application for judgment to be paid by the appellant in the sum of K1,500.
   • (c) I further order that the time for entry of these orders be abridged to the date of signing by the court which will take place forthwith.
     

Orders

1. The Pursuant to Order 12, Rule 36(3) of the Supreme Court Rules 1984 (Rules) judgment be entered for the respondent’s costs against the appellant in the amount of K44,167.80.
2. Pursuant to Order 12, Rule 5(c) of the Rules, fix in gross the costs of and incidental to the application for judgment to be paid by the appellant in the sum of K1,500
3. Time for entry of these orders be abridged to the date of signing by the court which will take place forthwith.

__________________________________________________________________
Nicholas Tame Lawyers: Lawyers for the Appellants
Mel & Henry Lawyers: Lawyers for the Respondents