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Kendo Ltd v Niugini Builders Supplies Ltd [2014] PGNC 242; N5661 (10 April 2014)

N5661

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 63 OF 2013

BETWEEN

KENDO LTD t/as NATIONAL RICE DISTRIBUTORS LTD
Plaintiff

AND

NIUGINI BUILDERS SUPPLIES LIMITED
Defendant

Lae: Sawong, J.

2013: 11th December,

2014: 10th April

PRACTICE & PROCEDURE – Application to set aside Garnishee Notice and Garnishee Order Nisi – National Court Rules Order 13 – Application by judgment debtor – Application must be by Garnishee not by judgment debtor – Application incompetent – application dismissed.

Facts:

By a Notice of Motion the judgment debtor applied to set aside a Garnishee Notice and Garnishee Order Nisi.

Held:

An application to set aside a garnishee Notice or Garnishee Order Nisi must be made by a garnishee, not by the judgment debtor.

Counsels:

C. Niniwale, for the Plaintiff
R. Inua, for the Defendant

1. SAWONG, J.: By a Notice of Motion filed on the 9th of December 2013 the defendant sought an Order that the Order Nisi granted on the 9th of October 2013 be set aside and that the Garnishee Notice filed on the 29th October 2013 be withdrawn, dismissed and or struck out pursuant to the inherent powers of the Court and Section 155(4) of the Constitution. The defendant also sought costs and other orders.
   
2. In support of the motion the defendant relied on the affidavit of John Bori filed on 9th December 2013, a further affidavit of John Bori filed on 25th July 2013, the affidavit of Joel Buri filed on 7th of August 2013 and the affidavit of Dakan Doiwa filed on the 9th December 2013.
   
3. The application was contested by the plaintiff.
   
4. The brief background to this proceedings are as follows. The plaintiff issued proceedings against the defendant, claiming a certain amount of money for goods and services supplied to the defendant at the request of the defendant. The goods and services were supplied on credit.
   
5. On 15th May 2013, the plaintiff obtained default judgment against the defendant.
   
6. On 29th October, 2013, leave was granted to obtain Order Nisi.
   
7. On 6th December 2013, the plaintiff filed a Notice of Motion to have the Order Nisi made absolute.
   
8. On 9th December 2013, the defendant filed a Notice of Motion seeking, amongst other orders, an order to have the order Nisi set aside.
   
9. The issue is whether the Court should set aside the Order Nisi.
   
10. The law relating to garnishee proceedings are set out in Order 13 Rule 53-65 inclusive. For the present purposes I consider the relevant Rules are Rules 56, 57,62 and 63. I set out these here under:
    

Rule 56 states:

"Garnishee notice.

(1) A judgment creditor may, with the leave of the Court, but subject to any Act, file and serve on the garnishee a garnishee notice in Form 60—;

(a) of attachment, to the extent of an amount specified in the notice, of debts due or accruing to the judgment debtor from the garnishee; and

(b) of motion for payment under this Division.

(2) A judgment creditor may move for leave under Sub-rule (1) without filing or serving notice of the motion.

(3) The Court shall not give leave under Sub-rule (1) unless it appears to the Court that—

(a) the judgment or order is unsatisfied; and

(b) there is a debt due or accruing to the judgment debtor from the garnishee.

(4) The Court shall, in giving leave under Sub-rule (1), fix the amount for specification in the garnishee notice under Sub-rule (1)(a).

(5) Subject to Sub-rule (6) the amount to be fixed by the Court for specification in the garnishee notice shall be the sum of—

(a) the amount due under the judgment or order on the date on which leave is given; and

(b) such amount as the Court may determine having regard to—

(i) interest on the judgment debt accruing after the date on which leave is given; and

(ii) costs of the garnishee proceedings.

(6) The amount to be fixed by the Court from salary or wages payable to the judgment debtor shall not exceed two-thirds of the sum payable each normal pay-day until the extent of the attachment is satisfied but the judgment debtor may apply to the Court at any time for a variation of the sum fixed, with notice to the judgment creditor.

(7) A garnishee notice shall include such particulars of the debt attached as are known to, or reasonably capable of ascertainment by the judgment creditor and as are necessary to enable the garnishee to identify the debt, including, where the garnishee is a banker or other person carrying on business at more than one place, the place of keeping of the account on which the debt is due or accruing, so far as that place is known to, or reasonably capable of ascertainment by, the judgment creditor."

Rule 57 states:

"Service of garnishee notice (46/4)

(1) Subject to Sub-rule (2), the judgment creditor shall, not less than three days before the date fixed by the garnishee notice for the motion for payment under this Division, serve the garnishee notice and each affidavit used on the motion for leave under Rule 56 on the garnishee personally and on the judgment debtor.

(2) Service on a garnishee under Sub-rule (1) may not be effected outside Papua New Guinea."

Rule 62 reads:

"Dispute of liability by garnishee. (46/9)

Where, on the hearing of a motion by the judgment creditor pursuant to the garnishee notice, the garnishee disputes liability to pay the debt attached, the Court may hear and determine the questions in dispute and direct the entry of such judgment, or make such order, as the nature of the case requires."

Rule 63 reads:

"Claim by other person. (46/10)

Where it appears to the Court that any person other than the judgment debtor is, or claims to be, entitled to money paid into Court under Rule 59 or to the debt attached or to any charge or lien on, or other interest in that money or debt, the Court may make orders for giving to that person notice of the proceedings and may hear and determine his claim, and may direct the entry of such judgment, or make such order in respect of the claim, as the nature of the case requires."

11. Rule 56 sets out the procedure to be taken when a judgment creditor issues or takes steps to enforce a judgment debt. This provision is not relied on by the defendant to set aside the garnishee notice. It is therefore irrelevant for present purposes.
    
12. Rule 57 requires that a garnishee notice is to be served on the garnishee and on the judgment debtor not less than three days before the date fixed by the garnishee notice for the motion for the payment is heard.
    
13. Rule 62 speaks of a situation where at the hearing of the motion by the judgment creditor pursuant to the garnishee notice, the garnishee disputes liability to pay the debt attached. The important point to note here is that the dispute must be made by the garnishee not by the judgment debtor. The expression "garnishee: means a person from whom a judgment creditor claims that a debt is due or accruing to the judgment debtor (See Order 13 r 53).
    
14. Rule 63 relates to claims by other persons. It does not relate to applications by the judgment debtor. Once again this provision or rule is of no assistance to the applicant.
    
15. As will be noted from the above rules, there is no express provision under Order 13 for a judgment debtor to make an application to set aside a Garnishee Notice or a Garnishee Order Nisi or order absolute.
    
16. In the present case, the application is not made by the garnishee, namely Bank of South Pacific Ltd, but by the judgment debtor. That being the case, the application by the judgment debtor is incompetent and should be dismissed.
    
17. For the reasons I have given, I dismiss the application by the defendant to set aside the Garnishee Notice and the Garnishee Order Nisi. I make the following orders:
    

(a)The applications by the defendant is dismissed.

(b)The defendant shall pay the plaintiff's costs, to be agreed, if not to be taxed.

(c)That the Garnishee Nisi be made absolute.

_____________________________---________________________________
Rageau Manua & Kikira Lawyers: Lawyers for the Plaintiff
Makap Lawyers: Lawyers for the Defendant