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Wabag Quarries Ltd v Mackey [2019] PGNC 411; N8118 (4 March 2019)

N8118

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 175 OF 1996

WABAG QUARRIES LIMITED
Plaintiff/Cross-Defendant

-V-

JENNY MACKEY
First Defendant/Fist Cross-Claimant

MICHAEL MACKEY
Second Defendant/Second Cross-Claimant

SMALL BUSINESS DEVELOPMENT CORPORATION
Second Cross-Defendant

Waigani: Kariko, J
2019: 22^nd February & 4^thMarch

CIVIL PRACTICE & PROCEDURE – slip application – interest on judgement award – rate to apply

Cases Cited:

National Capital District Commission v Dademo (2013) SC1260

Legislation:

Constitution
National Court Rules

Counsel:

Mr. M Nale, for the Cross-Claimants
Mr B Samiat, for the Second Cross-Defendant

RULING

4^th March, 2019

1. KARIKO, J: This is an application by the cross-claimants (the Mackeys) to vary the Order of this Court made by his Honour Kandakasi, J on 13^th November, 2014 regarding costs of proceedings and interest payable on the judgement sum awarded earlier.
   
2. The relevant notice of motion was filed on 30^th January, 2019. A similar notice of motion was filed earlier on 5^th December, 2018 but leave has been sought to withdraw that notice. The recent application amends the nature of the variation sought.
   
3. I note here that the parties agreed that nature of the application was such that I could address their current dispute rather than having it again referred to Kandakasi, J.
   

Brief background to the application

4. The cross-claim was settled through mediation whereby it was agreed that Small Development Business Corporation (SBDC) as second cross-defendant pay the cross-claimants the sum of K60,000 as damages.
   
5. The Order, the subject of this application, reads:
   
   1. The costs shall follow the event in favour of the Cross-Claimant as against the second Cross-Defendant to run from the date when the second Cross-Defendant was joined as a party.
   2. The interest shall be added to the judgement from the date when the second Cross-Claimant joined as a party to the date of the payment of the settlement amount.
      
6. On realizing later that term 2 of the Order did not state the interest rate, while the reference to the “second Cross-Claimant” ought to be a reference to the “second Cross-Defendant”, the cross-claimants consequently filed the current application.
   

The application

7. The application seeks to have the second term of the Order amended to read:
   

The interest of 8% per annum shall be added to the judgement from the date when the Second Cross-Defendant was joined as a party to the date of the payment of the settlement amount. (my underlining)

8. The notice of motion was filed to amend the second term of the Order in two respects:
   
   • to have the rate of interest specified at 8% per annum; and
   • to have the name “second Cross-Claimant” corrected to read “second Cross-Defendant”.
     
9. Leaving aside the argument on competency of the notice of motion which I will come back to soon, the second amendment sought is not in controversy and correctly so. Judgement was ordered against SBDC so it necessarily follows that interest payable on the judgement sum must be borne by SBDC.
   

Competency

10. As preliminary submissions, SBDC objected to the competency of the notice of motion arguing that the notice cites the incorrect jurisdictional bases for the application.
    
11. The applicants rely on:
    
    • Order 12 Rule 1 National Court Rules
    • Order 12 Rule 8(4) National Court Rules
    • Order 8 Rule 59(1) National Court Rules
    • Section 155(4) Constitution
      
12. I agree that Order 12 Rule 1, Order 12 Rule 8(4) and Section 155(4) are not appropriate for the applications.
    
13. In relation to Order 8 Rule 59(1), SBDC argued that the Rule does not permit the Court to “vary” an order. That Rule states:
    

“Where there is a clerical mistake in a minute of a judgement or order, or an error in a minute of a judgement or order arising from an accidental slip or omission, the Court, on application by a party or of its own motion, may, at any time correct the mistake or error.”

14. In common usage, the meaning of the verb “vary” also includes “amend” and “correct”, while the term “accidental” means “unintended” or “inadvertent”, that is, not intended.
    
15. In National Capital District Commission v Dademo (2013) SC1260, the Supreme Court noted at [7] that “The National Court’s jurisdiction to correct its own mistakes in a judgment under the slip rule principle is part of the Court’s inherent discretionary jurisdiction.” And at [8] “The provisions of O 8 r 59 of the National Court Rules 1987 reinforces the slip rule principle insofar as “clerical mistakes” in a judgment is concerned.”
    
16. The applicants are seeking to correct two unintended omissions by his Honour Kandakasi, J in the Order. It is my view that the application is properly brought pursuant to Order 8 Rule 59(1) National Court Rules.
    

Submissions

17. As noted earlier, there is no dispute over the amendment of the name of the party liable to pay the interest on the judgement sum.
    
18. In relation to the rate of interest to apply, Mr Nale for the Mackeys submitted that although his Honour omitted to state the rate, it is safe to assume that his Honour intended it be the standard and generally accepted rate of 8% yearly.
    
19. On the other hand, Mr Samiat for SBDC countered that as the rate was not considered at all by his Honour, I should now consider it in light of the relevant factors established in National Capital District Commission v Dademo(supra) for the Court to take into account in exercising its discretion in determining the appropriate rate of interest. Mr Samiat pointed out that one of the factors is delay caused by a party in having a case finalised. He argued that the cross-claimants are to take some responsibility for the delay in having their claim finalised and therefore it would be fair if SBDC paid interest:
    
    • At 4% or less for the period it joined the proceeding (16^th December, 2002) to the date the case was referred to mediation (19^th June, 2013); and
    • At 8% rate from 19^th June 2013 to the full payment of the judgement sum.
      

Consideration

20. Upon reading the transcript of proceedings of 13^th November, 2014 (when the Order was made), two matters stand out:
    
    • Parties were in court to specifically address on whether SBDC should bear the costs of the proceeding and pay interest on the judgement sum.
    • Kandakasi, J decided the question against SBDC for reasons that SBDC should have been more pro-active in pursuing an earlier compromise of the cross-claim and that SBDC had contributed to the delay in the cross-claim being finalised by unsuccessfully pursuing “a number of steps in court, both in this National Court and the Supreme Court, and has failed on all those accounts.”
      
21. In my view, his Honour did consider the conduct of parties in the delay in the prompt disposition of the case. I do not have jurisdiction to review his Honour’s finding in respect of that matter. It is also my opinion that his Honour intended the applicable interest rate to be the usual 8% per annum. I note there was nothing then before the Court and in particular from SBDC in submissions asking the Court to consider an interest rate less than 8% let alone two different rates for two separate periods of time.
    

Conclusion

22. I am inclined to grant the application to correct the Order.
    
23. As the application is the result of an oversight by the Court that should have been picked up by the parties then but did not, I think the parties should bear their own costs in relation to the present application.
    

Order

24. The orders of the Court are:
    
    • (1) The plaintiffs’ application is upheld.
    • (2) Leave is granted to the cross-claimants to withdraw their notice of motion filed 5^th December, 2018.
    • (3) The second term of the Order made 13^th November, 2014 is amended to read:

“The interest of 8% per annum shall be added to the judgement from the date when the Second Cross-Defendant was joined as a party to the date of the payment of the settlement amount.”

(4) Each party shall bear its own costs of and incidental to this application.
(5) Time is abridged.

_______________________________________________________________
Jema Lawyers: Lawyer for the Cross-Claimants
Holingu Lawyers: Lawyer for the Second Cross-Defendant