DC205

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 61 OF 2003

BETWEEN

Karl Gumari
Complainant

And:

Lydia Nanau
Defendant

Vanimo: August, M
2004: January 23, 26, February 02, 03, 04

No cases cited in this judgment

Counsel
Karl Guinari in person 
Lydia Nanau in person

04 February 2004

AUGUST, M.: This is an application for a refund of K900.00 money owed by the Respondent to the Applicant due to an over deduction from an enforcement order for the maintenance of the Respondent dated the 5th July 2001, pursuant to the Maintenance Orders Enforcement Act 1970.

Preceding that, there was a maintenance order dated the 10th October, 2000 for the Applicant to pay maintenance of K50.00 for his wife every fortnight until she remarries or the order is discharged by a court of competent jurisdiction which ever first occurs. The Court also awarded costs in the sum of K3000.00 to be paid by the Applicant.

On the 5th July 2001 after an enforcement order was filed, the Applicant was already in arrears of K2000.00 including costs. The Court ordered the Applicant to pay K2000.00 within 1 month in default 2 months imprisonment in hard labour at Vanimo Corrective Services. The court also made an attachment order for K100.00 to be deducted from the Applicants salary with the Department of Sandaun every forth night, that is K50.00 to continue the maintenance and K50.00 to pay for the arrears. By the 27th August, 2001 the Applicant has fully paid the total of K2000.00 in cash.

The deduction was commenced on pay period ending 27/07/01. By PPE 31/10/03, there was an over deduction of K900.00 which is now the subject of this proceeding.

The Applicant and Respondent has consented to a trial by affidavit because of the Applicant's insistence to have the matter dealt with quickly and also the Respondent as a teacher has to be in Green River for the start of the academic year.

The Applicant's submission to court is basically that there was an over deduction of K900.00 by his employer, the Sandaun Administration and the money was paid to the Respondent who has no right legally to the money. Even if there was an implied right because of the relationship between the parties, the Applicant did not give his consent or authority for the money to be spent by the Respondent which ever way she chooses. The Applicant further submitted to the court that the money should be refunded as he needed the money to pay for his children's school fees for 2004 academic year.

The Respondent on the other hand admitted that there was an over deduction of K900.00 for costs awarded by the court, which she said in her affidavit she must repay. However, she is aggrieved by the fact that during the substantive hearing of the maintenance order, she submitted her costs for K7000.00 but the court only awarded K3000.00 to her. The Respondent also argued that the Applicant abandoned his children for 4 years since 1997 and she had to maintain the children by herself until 2003 when the Applicant took custody of the children. The Respondent submitted to the court to be lenient on her and forfeit her K50.00 maintenance deduction for 18 forth nights to recover the K900.00. In practice, what she is suggesting that the Clerk of Court would do is, when she receives the maintenance cheque for K50.00 from the Department of Finance and Treasury in Port Moresby, she would hold the cheque and give it back to the Applicant and continue that for 18 fortnights until the K900.00 is fully paid.

The main objection by the Respondent to refund the money was that she was not properly compensated for looking after the children when the Applicant deserted her with the children in 1997. She is of the view that she should have been awarded K7000.00 to justify all the inconvenience and costs of looking after the children while they were in her custody and not K3000.00 as awarded by the presiding magistrate.

Having considered all the facts to this application, the court is of the view that the Applicant is entitled to the refund of the K900.00 over deduction, money which if there was no administrative bungle would have ended up in the Applicant's pay packet anyway. Legally the money is rightfully his and therefore he is entitled to the refund of the money.

The Respondent's contention that the money should be a form of compensation for looking after the children since 1997 is not known in law. The Respondent at that time of the maintenance order for herself, as ruled by the court, was the wife of the Applicant. She has a legal and moral obligation to look after the children without claiming any form of compensation whatsoever. The Applicant on the other hand has failed in his obligation to cater for the children during that period from 1997 to 2003, but that should not be the basis to deny him of the K900.00 refund. In my view this is trying to claim maintenance for the children for the period 1997 to 2003, which is not allowed by law. Moreover, the presiding magistrate on the issue of maintenance, CC No. 39/2000, has rightly exercised his discretion in awarding a cost of K3000.00 and not K7000.00 as requested by the Respondent. The presiding magistrate was of the view that K3000.00 cost would not only be fair but reasonable under the circumstances. I now rule that the K900.00 should be refunded with interests and costs. I also rule that the 18 cheques should not be held back and given to the Applicant as that is not a sound financial and banking practice.