Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Kimlee Equipment and Spare Pty Ltd v Santa (PNG) Pty Ltd [1995] PGNC 11; N1312 (17 March 1995)

Unreported National Court Decisions

N1312

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 314 OF 1994
KIMLEE EQUIPMENT & SPARE PTY LTD
v
SANTA (PNG) PTY LTD

Waigani

Doherty J
9 March 1995
17 March 1995

Powers of Court to review under O 22, R 60.

The applicant/defendant sought review of costs and expenses of the execution of a writ of levy by the Sheriff.

Held:

1. The Sheriff was a public functionary with a mandatory duty to sell by public auction but a discretion to decide the best place for that sale.

2. He could use an agent to assess goods for sale where he lacked expertise.

3. The Court’s powers to review under O 22, R 60 should be exercised where the Sheriff’s actions were improperly, wrongly, capriciously or arbitrarily exercised.

Counsel:

Mr Payne for the Applicant

Mr Merrick for the Respondent

Mr Kingal for the Sheriff

17 March 1995

DOHERTY J: The Applicant/Defendant seeks review pursuant to O 22 R 60 of National Court Rules of a decision of the Taxing Officer taxing a Sheriff’s bill of fees. O 22 provides that every applicant for review must deliver his objections in writing specifying the list of items and state the nature and grounds of objection. The original bill was taxed on 21st December 1994 and some fees and charges incurred were reduced.

A judgment for K279,011 had been entered against the defendant and when it was not paid a writ of levy of property was issued out of the National Court on the 14th July 1994. Interest accrued on the judgment sum and costs were added, the writ of levy was for K281,625.85.

The property to be levied was at a logging site in Amazon Bay and was for various heavy logging equipment, bulldozers, front end loaders etc. The sheriff engaged a person with some practical knowledge of both machinery and the area to locate and assess and seize the property. He apparently was accompanied by sheriff’s officers and police when he went to the area.

The machinery and property were brought to Port Moresby for sheriffs auction. It was advertised and sold.

The costs of the person going to the site, the costs of transporting and storing property have been objected to by the defendant. The original bill was taxed and reduced.

The applicant/defendant’s objections are to mainly to the expenses incurred and can be looked at in 2 broad grounds ie (1) the engaging of an agent and his and the sheriffs expenses and (2) the bringing of the equipment from their original location to Port Moresby for sale. The applicant submits if people were interested enough in purchasing the equipment to travel from other places to attend the sale they would have gone further and travelled to Amazon Bay. He refers to an example of people travelling to a sale “on site” in New Ireland and some prospective purchasers from overseas.

The Sheriff in submission says the area was remote and the machinery specialised. It had not been used and was scattered in various places in the bush. He needed an expert to assess which were worth moving for sale and which were useless.

The Plaintiff/Respondent stresses the remoteness of the area and the specialised nature of the machinery and submits the defendant did not appear earlier in proceedings. There is an implication that he is late in the day to start objecting now. Whilst that may be a practical observation he still has right of appearance under the rules.

The Sheriff’s duties are in O 13 R 31 and 32. R 32 and provide:

“31. Time of Sale (45/5)

(1) Subject to Rule 30 of this Order, the Sheriff shall put up for sale all property liable to sale under the writ as early as may be with due regard to the interests of the parties and to the avoidance of sacrifice of the reasonable value of the property.

(2) All property real and personal taken in execution shall be offered for sale by the Sheriff by public auction.

32. Place of Sale (45/6)

The Sheriff shall put up for sale property liable to sale under a writ at the place which seems to him best for a beneficial realisation of the property.”

The provisions of O 13, R 31 are clearly mandatory and oblige the Sheriff to sell only by public auction, there can be no private sales no matter how good a price the Sheriff thinks he can achieve. The Sheriff is mandatorily obliged, under R 32 to sell at the place which seems to him best for a beneficial realisation of the property.

This imposes upon the Sheriff both a mandatory obligation to sell at the best place and a discretion to decide where that best place is. The rule is read in conjunction with R 31 (1) had he must made that decision early and with due regard to the interests of the parties. The word “parties” is in the plural connoting that his obligation is to both the owner of the property and to the judgment creditor.

Counsel have not been able to refer me to any case law in our jurisdiction directly on this point.

Halsbury, 4th Edition, Vol. 17 at 447 refers to the Sheriff’s entitlement under a writ of fieri facias (now a writ for levy of property in our jurisdiction O 13, R 28) being entitled to expenses of making enquiries, a fee or fees for seizure, mileage, man in possession, removal and warehousing of goods and animals, advertising the sale and commission to the auctioneer. However as Mr Payne rightly says the English rules - as stated in Halsbury are dependent upon English legislation, not common law and care must be taken in applying interpretation of that statute situation to our rules.

The National Court rules use the English Supreme Court Practice as a drafting basis. The English Supreme Court Practice, 1991 Edition par 45/1/11 states:

“The truth is that the sheriff though for some purposes is an agent of the party who puts the writ in his hands, is not a mere agent. He is a public functionary having indeed duties to perform towards those who set him in motion analogous, in many respects, to those of an agent towards his principal; but he also has duties towards others and particularly towards those against whom the writs in his hands are directed (see per Lord Cranworth LC in Hooper & Lane [1857] EngR 830; [1857] 6 HL Cas 443, 549-550, cited in Re a Debtor (No 2 of 1977), ex p. the Debtor & Goacher [1979] 1 WLR 956; [1979] 1 All ER 870).”

I consider this quotation is pertinent to the Sheriff in our jurisdiction also. He is also a public functionary with a duty to be seen to act fairly and properly in relation to the parties involved, to the Court and the public. Hence the obligation upon him to hold a public auction and to execute this duties in a public accountable manner.

He is also, for some purposes an agent, and as an agent is obliged to achieve the best for his principal.

As I have noted he has a discretion to decide where is the best place to hold the public auction of the goods seized. As a public functionary and an agent I consider he is obliged to exercise that discretion in a way that will, in his view achieve the best price in the circumstances.

On the facts before me I am informed (albeit partly from the bar table but it is not rebutted) that the equipment, the subject of this sale, was scattered over bush, some 18 kilometres from the wharf and in different places. Further that prospective purchasers would have to travel by plane and small boat to where it was located if the sale was on site. In the circumstances I consider that the Sheriff was entitled to assess these factors in exercising his discretion when reaching his decision to hold the auction at Port Moresby instead of the place where the equipment was located.

I consider, like a review of the exercise of the discretion vested in other statutory or public bodies, a court should invoke its powers to review only where it is shown the exercise of the discretion was improperly, wrongly, arbitrarily or capriciously exercised. Where a statutory body shows it reached a decision in the exercise of its discretion in a proper way after considering all the facts then the Court should not interfere.

Hence having considered the fact I think the Sheriff was entitled to reach the decision he made. The costs of transport etc, I concede, were high but they were what was directly charged and incurred and the sheriff had little choice. I do not think the Court can interfere with them.

Mr Payne has also objected to use of an agent a Mr Harkins, to examine assess and put the equipment in state where it could be sold.

Mr Kingal, in written submission, explains why the decision was made. Mr Merrick says he had a practical knowledge of both the area and such equipment, a scarce combination.

Mr Payne says there is no power to employ agents. Whilst this is not categorically stated it, similarly, is not categorically disallowed either. The sheriff's duty is to achieve the best price in the interests of all parties. He has no professional or mechanical expertise. In this case, given specialised equipment of varying state of repair I consider he had a discretion to make a decision to use the services of someone better qualified in the field than himself to assess the merits of the equipment and bring it to a condition for sale. In the circumstances of this case I do not consider he was in error and he could employ an agent.

The costs and charges have already been taxed and whilst this court has power to review them I consider they were properly incurred and do not reduce them further.

Mr Payne also objects to costs and outlays of security guards etc and refers to Table 4 (Sheriff’s fees) items for Keeper’s fees and says costs should be limited to K20 per day. However the keeper’s fees in that table are for “each person for each day” implying it is for the holding of persons rather than the security costs for equipment and I do not directly apply it to this situation.

This leaves other costs, food, travel costs etc and I was inclined to Mr Payne’s view that these were indeed high. On reflection and consideration of the powers of review vested in this Court, which are as I have stated, as in other judicial reviews, to review the outlays which have already been the subject of a taxation would be trivial and vexious and in the circumstances of this case I decline to review them.

Lawyers for the Applicant/Defendant: Blake Dawson Waldron

Lawyers for the Respondent/Plaintiff: Warner Shand & Co

Lawyer for the Sheriff: Dilu Goma