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PNG Power Ltd v Wemin [2022] PGNC 551; N10085 (14 December 2022)

N10085

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 389 OF 2006

BETWEEN:
PNG POWER LIMITED
Plaintiff

AND:
BEN WEMIN and EKAPOKAVE LANDOWNERS of NAMANEGURE SUB-CLAN, FIMITO VILLAGE, GOROKA
Defendants

Goroka: Mugugia, AJ
2022: 13^th & 14^th December

COSTS – Certificate of Taxation – Refusal to pay taxed costs – Motion for judgment to be entered for the amount certified in the Certificate of Taxation – Wrong Rule stated in Motion – Motion rendered incompetent – Motion struck out.

Counsel:

C. Koi, for the Plaintiff
K. Pilisa, for the Defendants

RULING

14^th December, 2022

1. MUGUGIA, AJ: On 7^th March 2014, the Court made an order for costs in relation to the substantive proceedings to be paid by the Plaintiff at the rate of 60 percent on a Party and Party basis. The costs to be taxed if not agreed. The Defendants’ bill of costs was taxed on 18^th October 2022, and a certificate of taxation was signed by the Taxing Officer. The certificate of taxation was filed on 31^st October 2022. The sum allowed was K79,575.00.

2. The Plaintiff refused to pay the taxed costs. The Defendants are now before this Court with their Motion seeking judgment in the sum of K79,575.00. The Principal Defendant Ben Wemin swore the affidavit in support of the Motion.

3. The jurisdictional basis cited in the Defendants’ Motion is Order 22, Rule 9(2)(a) of the National Court Rules. Rule 9 provides for “Order for taxation: When not required.” Rule 9(2)(a) states:

“Where proceedings are dismissed with costs, and the costs are not paid within four days after the signing of a certificate of taxation of the costs, a party to whom the costs are payable may enter judgement for the taxed costs.”

4. At the outset, I asked the Defendants’ lawyer if this Rule cited in the Motion conferred jurisdiction on the Court to grant the order for judgment sought in the Motion. Counsel for the Defendants Mr Pilisa answered that the Rule relied on did.

5. The Motion was opposed. The Plaintiff filed a responding affidavit. The evidence as contained in the Affidavit of Collin Koi filed on 8^th December 2022 is that the Plaintiff acknowledged the certified bill of costs and advised the Defendant’s lawyer that as per the Court Order, the Plaintiff will settle only 60 per cent of the total certified costs which is about K47,745.00. This is based on the Plaintiff’s calculation. This was put to the Defendants’ lawyer but he refused and demanded that the Plaintiff settle the full certified costs.

6. The Motions (Amendment) Rules 2005 provides for “Form of Motions”. All Motions must contain a concise reference to the Court’s jurisdiction to grant the orders being sought. [See Rule 8].

7. In the present case, the Defendants’ Motion states Order 22, Rule 9(2)(a). I am of the view that this Rule is not the relevant Rule. It does not confer jurisdiction on the Court to make the order for judgment sought in the Motion. The Motion should have referred to Order 22, Rule 62 which is in the following terms:

“62. Judgement.

Where the amount of any costs has been certified under this Division, the Court may, on motion by a party, direct the entry of judgement for the costs as the nature of the case requires.”

8. I find that the Motion before me is incompetent. It is therefore struck out. The Defendants are at liberty to file a fresh Motion.

9. The formal orders of the Court are:

(i) The Defendants’ Motion filed on 28 November 2022 is struck out for being incompetent.

(ii) The Defendants shall pay the Plaintiff’s costs.

Orders accordingly.

________________________________________________________________
C. Koi: Lawyer for the Plaintiff
K. Pilisa: Lawyer for the Defendants