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Deputy Commissioner of Taxation of the Commonwealth of Australia v Yii Ann Hii [2019] PGNC 435; N8169 (25 November 2019)

N8169

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 48 OF 2016 (COMM)

IN THE MATTER OF THE RECIPROCAL
ENFORCEMENT OF JUDGEMENTS ACT
1976 (CHAPTER 50)

AND:

DEPUTY COMMISSIONER OF TAXATION
OF THE
COMMONWEALTH OF AUSTRALIA
Plaintiff

AND:
YII ANN HII
Defendant

Waigani: Hartshorn J,
2019: 25^th November

Application for a Debtor’s Summons

Cases Cited:
James Marape v. Peter O’Neill (2016) SC1493
In re Koitaki Plantations Ltd (2017) N6670
Application of Deputy Commissioner of Taxation of the Commonwealth of Australia v. Yii Ann Hii (2017) N7642

Counsel:

Mr. J. Renwick SC and Mr. P Lowing, for the Plaintiff
Mr. I. Molloy and Mr. E. Asigau, for the Defendant

25^th November, 2019

1. HARTSHORN J:This is a decision on a contested application for a debtor’s summons to be issued against Mr. Yii Ann Hii of 19 Cove Grove, Republic of Singapore, pursuant to s. 23 Insolvency Act Ch No. 253.

Background

2. This proceeding was commenced by the plaintiff, the Deputy Commissioner of Taxation of the Commonwealth of Australia (DCTA) on 11^th February 2016. The substantive relief claimed by the DCTA was for leave to be granted for it to register a Supreme Court of Queensland, Australia judgment (judgment) pursuant to the Reciprocal Enforcement of Judgements Act Ch No. 50.

3. The judgment was registered on 24^th March 2016 and a motion to set aside that order was dismissed on 18^th November 2016.

This application

4. The DCTA submits that a debtor’s summons should be issued as:

a) the previous creditors petition issued against Mr. Hii was dismissed by the Supreme Court;

b) the requirements of s. 23(1)(a) and (b) Insolvency Act for a debtor’s summons to be granted by a judge have been satisfied in this instance.

5. Mr. Hii submits that a debtor’s summons should not be issued as amongst others:

a) an application for a debtor’s summons cannot be brought as an interlocutory application in this proceeding as this proceeding does not substantively seek Mr. Hii’s insolvency;

b) an application for a debtor’s summons may only be made in a substantive proceeding;

c) this proceeding has been completed as all of the substantive relief sought has been granted. Consequently, an interlocutory application may no longer be made in this proceeding;

d) the DCTA has not produced sufficient or any evidence of reasonable efforts to obtain payment of the subject debt.

Applying for a debtor’s summons

6. An act on the part of a debtor which is an act of insolvency includes the debtor neglecting to pay a sum due specified in a debtor’s summons: s. 21(1)(h) Insolvency Act. A debtor’s summons shall be in the prescribed form, resembling a writ issued by the Court: s. 21(2)(a). A debtor’s summons shall state that amongst others that a petition may be presented against the debtor that he be adjudged an insolvent: s. 21(2)(b).

7. That an application for a debtor’s summons is the first step that is required to be taken in the process of establishing a particular act of insolvency under the Insolvency Act, to my mind renders the application itself to be substantive. It is not an application that may be made within another proceeding.

8. Even if an application for a debtor’s summons may be made in another proceeding on an interlocutory basis, this should occur in a proceeding that seeks substantively orders in respect of the enforcement of a judgment by way of insolvency. The Supreme Court case of James Marape v. Peter O’Neill (2016) SC1493 is authority for interlocutory relief only being able to be sought in support of a right asserted or complaint made in the originating process. In this instance the only substantive relief sought which is not consequential, is for the registration of a foreign judgment.

9. Order 13 Rule 75 National Court Rules is not of assistance to the plaintiff as although it relevantly provides that,“ ...on registration of a judgement, the judgement may .... be enforced as a judgement of the Court in the proceedings in which the judgement is registered,...” and a proceeding under the Insolvency Act may be considered a means of enforcement of a judgment for the payment of money: see In re Koitaki Plantations Ltd (2017) N6670 at [28] – [32], as referred to, a proceeding under the Insolvency Act should be commenced by a new proceeding. A proceeding in which an application is made for a debtor’s summons falls within, “.... and in any of the manners in which a judgement for the payment of money ... may be enforced.” in Order 13 Rule 75 National Court Rules.
10. Further, notwithstanding that Order 13 Rule 75 National Court Rules provides that a judgment may be enforced as a judgment of the Court in the proceedings in which the judgment is registered, this does not relieve the plaintiff of the obligation to seek in its originating process orders in respect of the enforcement of the judgment.

11. Consequently, I am of the view that a debtor’s summons should be applied for substantively in a separate proceeding. Further, even if an interlocutory application for a debtor’s summons may be made, it cannot be made in this proceeding as it is not in support of a right asserted or complaint made in the originating summons.

This proceeding has been completed

12. It is the case that the substantive relief sought in the originating summons has been adjudicated upon and granted and an application to set aside that relief has been refused. There is no further substantive relief to be determined. I note that this was recognised by Kariko J. in Application of Deputy Commissioner of Taxation of the Commonwealth of Australia v. Yii Ann Hii (2017) N7642 at [20]. Consequently, for the above reasons also, the DCTA should have commenced a separate proceeding to make application for a debtor’s summons.

13. For the above reasons, the application of the DCTA for a debtor’s summons to be issued should be refused. Given this it is not necessary to consider the other submissions of counsel.

Orders

14. The Court orders that:

a) The relief sought in the notice of motion of the plaintiff filed 16^th July 2018 is refused;

b) The plaintiff shall pay the costs of the defendant of and incidental to the said notice of motion;

c) Time is abridged.
__________________________________________________________________
Leahy Lewin Lowing Sullivan: Lawyers for the Plaintiff
Pacific Legal Group: Lawyers for the Defendant