Nalepa v Nandape [2022] PGSC 55; SC2250 (11 March 2022)

SC2250

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 6 OF 2021

BETWEEN:
RUBEN NALEPA
AND OTHERS
Appellants

AND
JUDY NANDAPE
AND OTHERS
Respondents

Waigani: Logan J
2022: March 11^th

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

Facts:

A Registrar certified the result of taxing of costs on a party/party basis. That certificate of taxation was served and remained outstanding for 14 days. An application was then made for judgment in respect of the taxed costs. Concurrently, an application was also made for the costs of that application for judgment to be fixed.

Held:

1. The court has power pursuant to Order 12, Rule 5(2)(c) and (d) of the Supreme Court Rules 2012 to fix a sum in gross for the costs of an application for judgment on a certificate of taxation.
   

Legislation:

Supreme Court Rules 2012

Counsel:

Ms. Nandape, in person as the First Respondent and on behalf of the Second and Third Respondents

Oral decision delivered on
11^th March 2022

1. LOGAN J: On 31 August 2021, a Registrar certified that, on 27 August 2021, the Registrar had taxed the first and second respondents’ party/party bill of costs in this proceeding, as earlier filed, and allowed the same at K8,975. The first, second and third respondents have now applied for an order pursuant to Order 12, Rule 9 of the Supreme Court Rules 2012 that judgment be entered against the appellants in the sum of K8,975, together with an order under Order 12, Rule 5(2)(d) of the Supreme Court Rules that the appellants pay the costs of the application for judgment in the amount of K1,500. There is an ancillary order sought in relation to the payment of that total sum.
2. I am satisfied, having regard to the affidavit in support, that more than 14 days have passed following the service on the appellants of the certificate of taxation and that the sum certified in that certificate remains unpaid.
3. I am also satisfied having regard to an affidavit of Ms Nandape sworn on 9 March 2022 and filed in court today by leave that the lawyers for the appellants are aware of the hearing date today and further have communicated to Ms Nandape their stance that they will neither consent to nor oppose the application made for judgment and fixing of costs.
4. Order 12, Rules 5(2)(c) and (d) enable the Court or a judge to fix costs in a gross sum (subparagraph (2)(c)) or in a sum in respect of costs to be ascertained in such manner as the Court may direct (subparagraph (2)(d)). Whilst the application refers to Order 12, Rule 5(2)(d), in substance what is sought, in my view, is the fixing of costs in gross. I am satisfied that the Court or a judge has power to make such an order. It appears that in this jurisdiction judges have been disposed in the past in respect of applications such as this to allow the sum of K1,500 by way of fixed costs.
5. In other jurisdictions where it is sought to fix costs in gross it is a practice to annex to an affidavit in support of such an application a skeleton bill of costs and, sometimes, also an assessment by a costs assessor. These steps in respect of what is a modest certified sum of costs would probably be excessive steps, but for larger amounts of costs as certified where it is sought to seek a larger sum than K1,500 for obtaining judgment, steps to provide an evidentiary foundation for an order fixing costs in gross may be necessary.
6. However that may be, in relation to the present application, having regard to amounts which might be allowed on taxation in respect of the preparing of the notice of motion for judgment, an affidavit in support, service of those documents on the appellants, an appearance in court and related dealings with the lawyers for the appellants as well as a matter of general impression as to what would be reasonable to allow for such work, I am now satisfied that it is appropriate to fix costs in the amount of K1,500.
7. It has also been sought that the total sum of K10,475 be made payable to Nandape and Associates Lawyers Trust Account. In my view the appropriate order in response to that should be that the obligation to pay the total sum of K10,475 may be satisfied by the payment of that sum into the trust account of Nandape and Associates Lawyers, the receipt for which being good discharge of the obligation to pay the judgment sum and the costs fixed this day.
   

Orders

1. Leave be granted for the affidavit of Judy Nandape, sworn 9 March 2022 to be filed in Court.
2. Judgment be entered against the applicants in the sum of K8,975, being the amount taxed and certified.
3. The costs of and incidental to the application be fixed in gross in the amount of K1,500.
4. The judgment, together with the sum fixed in respect of costs of the application may be satisfied by the applicants 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.

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Nandape & Associates Lawyers: Lawyers for the Second and Third Respondents