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Kiwan v Kia [2021] PGNC 317; N9070 (18 August 2021)

N9070

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 172 OF 2019

BETWEEN:
JEFFERY KIWAN as the Principal Landowner of Mukuramanda Jail Project, Wapenamanda, Enga Province
Plaintiff

AND:
ANJO KIA
Defendant

Waigani: Thompson J

2021: 9^th & 18^th August

COSTS - TAXATION OF COSTS – party/party basis
Counsel:

Mr F. Wangi, for the Plaintiff

18^th August, 2021

1. THOMPSON J: This is an application by the plaintiff to review the taxed costs of the defendant which were certified by the Taxing Officer (“TO”) on 7 June 2021 in the sum of K39,998.00.

2. On 26 March 2019 the plaintiff filed an Originating Summons in Waigani, naming himself as the Principal Land owner of a project in Wapenamanda, Enga Province, seeking orders restraining the defendant from accessing the project compensation payments. Interim orders were obtained, and then the matter proceeded by way of pleadings, until 25 July 2019 when the defendant filed a Motion to dismiss the proceedings for failing to disclose a cause of action. That motion was heard and the proceedings were dismissed on 6 September 2019 with costs against the plaintiff.

3. On 23 June 2020, the defendant filed an Application for Taxation of his Bill of Costs in taxable form, totalling K270,610.36. The plaintiff filed an Objection, and the defendant filed a Response and other material. The parties were unable to agree on a hearing date at which both parties’ lawyers could appear, so that the TO conducted the taxation on the papers, on 27 March 2021. He issued a “Reasons In Taxation” filed on 23 April 2021. A certificate of taxation was filed on 7 June 2021, stating that the Bill of Costs had been for K311,033.70, that K274,671.88 had been taxed off, and that K36,361.82 plus K3,636.18 for GST was allowed, making a total of K39,998.00 for the taxed cots. The plaintiff filed an application to review those taxed costs.

4. The Bill was an extremely confusing document, and must have caused the TO considerable difficulty in attempting to assess the figures. Legal fees were shown as charges, and many were inconsistent. The Bill appeared to have been for K34,260.00 in legal fees plus K253,810.36 for disbursements. The TO said that on his calculations, the total actually amounted to K311,033.70. His written reasons indicated that when taxing the bill without the assistance of the parties’ lawyers, he may have become confused between this matter and some other matter, as he makes references to the Solicitor General’s filing objections, says that the plaintiff is seeking higher hourly rates for Queens Counsel, that judicial review is of an administrative decision, and makes some criticism of the Solicitor General for not resolving the legal proceedings out of court. None of those matters related to these proceedings. It is not clear if these matters affected the TO’s decision when reviewing the items in the Bill or reviewing the plaintiff’s objections.

5. The TO’s task was not made easier by the fact that apart from the figures not adding up, the items were not consecutively numbered, and there were omissions as well as duplicated numbers. The TO therefore prepared a spreadsheet setting out the items with consecutive numbering.

6. I refer first to Part 1 of the Bill, for preparation of documents.

7. The defendant claimed K8,160.00, and the TO appears to have allowed K3,410.00. The TO proceeded on the basis that the hourly rate charged for the lawyer was K480.00, although the hourly rate was not clear from the way in which the time units were shown in the Bill, and it is not clear if this was a rate which was reduced from K650.00. Notwithstanding this lack of clarity, and allowance of K3,410.00 for time spent in preparing the documents, was not so obviously unreasonable that it should be reduced.

7. In relation to Part 2 for court appearances, there were seven attendances for which the defendant claimed K8,800.00, and the TO appears to have allowed K1,105.00. This appears to be extremely low, but the defendant has not cross-appealed, and so there is no basis for changing that amount.

8. In relation to Part 3 for correspondence and telephones, the defendant claimed K500.00, and the TO appears to have allowed K280.00. Again, this was not so obviously unreasonable but it should be reduced.

9. In relation to Part 4, preparation for trial, the defendant claimed K16,800.00, and the TO appears to have allowed K3,250.00. This was not so obviously unreasonable that it should be reduced.

10. The real difficulty is shown in the claim for disbursements. They were claims by the defendant himself, not his lawyer, for the travel of himself, his wife and other land owners, to Port Moresby, accommodation in Port Moresby, vehicle hire in Port Moresby, and cash payments, of over K253,000.00. None of the disbursements were incurred by the defendant’s lawyer.

11. I refer first to airfares. There was only one defendant, who apparently lived in Wapenamanda. It appears that the proceedings were issued in Waigani because the disputed monies had been paid to the defendant’s lawyer’s bank account in Port Moresby. I accept that it was reasonable for the defendant to travel once to Port Moresby after the proceedings were issued, to instruct his lawyer to defend the proceedings.

12. However, he did not need to be accompanied by either his wife or other landowners, and he did not need to remain in Port Moresby. The proceedings were only against him. After briefing his lawyers and providing them with his instructions and documents, the defendant did not need to stay in Port Moresby. After returning to Wapenamanda, he did not need to fly down again to Port Moresby. Any further consultation or instructions could be given by telephone or email. He did not need to make six or seven flights.

13. In relation to accommodation, he did not need to rent a house in Port Moresby from March to September 2019.

14. In relation to vehicles, he did not need to hire a land cruiser in Port Moresby from March to September 2019, or to pay K100.00 daily for fuel from March to September 2019.

15. In relation to cash, the claim for K5000.00 for “Hobbies” is inexplicable. The defendant did not need to spend K5,000.00 for communications, or K5,000.00 for stationery, or K5,000.00 for laundry. The claims of K20,000.00 for “petty cash” and a further K20,000.00 for “Others”, are completely without legal foundation.

16. It is unclear what the total claim was, for the disbursements, as the figures in the Bill amounted to around K700,000.00. The TO appears to have allowed about K4,920.00 for airfares, nothing for accommodation, K9,000.00 for vehicle hire, K10,000.00 for fuel, and K2,000.00 for cash payments.

17. Despite having taxed off significantly more than 1/6^th of the Bill, the TO then went on to allow K2,500.00 for the costs of the taxation.
__________________________________________________________________
Emmanuel Lawyers: Lawyers for the Plaintiff
Ninerah Lawyers: Lawyers for Defendant