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Thirlwall v Eng Chin Ah, Gasmata Resources Pty Ltd and Wewak Timbers Pty Ltd [1988-89] PNGLR 34 (23 December 1988)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 34 - Julian Robert Thirlwall v Eng Chin Ah, Gasmata Resources Pty Ltd and Wewak Timbers Pty Ltd 

[1988-89] PNGLR 34

N699

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THIRWALL

V

ENG CHIN AH AND OTHERS

Waigani

Woods J

19 December 1988

23 December 1988

COSTS - Bill of costs - Recovery - Certificate of taxation - Certificate conclusive of liability - Challenges to be made prior to issue of certificate - National Court Rules, O 22, r 62.

LAWYERS - Taxation of costs - Certificate of taxation - Certificate conclusive of liability - Challenge to liability not available in recovery proceedings - National Court Rules, O 22, r 62.

Held

Where a party seeks, in accordance with O 22, r 62, of the National Court Rules that judgment be entered against another party upon amounts certified in a certificate of taxation issued by a taxing officer he is entitled to judgment as of right for the costs so taxed and certified, subject only to any application for review or appeal as to the amounts certified: questions of liability may not be raised after the certificate of taxation issues.

Motion

The plaintiff sought to have judgment entered pursuant to O 22, r 62, of the National Court Rules, in respect of amounts certified in a certificate of taxation.

Counsel

R Habuka, for the plaintiff.

F Talao, for the respondents.

Cur adv vult

23 December 1988

WOODS J: The plaintiff is seeking, in accordance with O 22, r 62, of the National Court Rules, for judgment to be entered against the respondents upon amounts certified in certificates of taxation. The plaintiff submits that he is entitled to judgment as of right.

Order 22, r 62, provides:

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

The respondents are opposing this application on the basis that there is an issue between the respondents as to the respective liabilities of the respondents.

This matter arose following the rendering of bills of costs by the plaintiff as lawyer to the respondents as clients for work done by the plaintiff for the respondents.

As the original bill was disputed, the plaintiff sought an order for taxation. At the time the bill was rendered and the application made to the court for taxation, it is not clear that any issue of liability was raised. It appears that issues of liability were raised before the taxing officer but he ruled that it was not in his power to adjudicate such issues.

I rule that the time to challenge the liability of the respective respondents is when the original bill is presented or when the application is made to have the bill taxed. The order for taxation made on 6 November 1987 is clearly made in respect of bills of costs against all three respondents. Any issue should have been raised then and any qualification should have been part of that order.

There is provision for the order of the court for taxation to include such terms as are thought necessary. Once the amounts have been taxed and certified then, subject to any application for review or appeal as to the amounts so certified, the plaintiff must be entitled to the costs so taxed and certified.

I order that judgment be entered for the plaintiff in the sum of K35,485.96 against the three respondents.

I order that judgment be entered for the plaintiff in the sum of K12,579.38 against the first respondent and the second respondent.

I order that the respondents pay the plaintiff’s costs.

Judgment for the plaintiff

Lawyers for the plaintiff: Kirkes.

Lawyers for the defendants: Young & Williams.