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Yambaran Pausa Saka Ben Ltd v National Capital District Commission [2021] PGNC 371; N9069 (18 August 2021)

N9069

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 359 OF 2002

BETWEEN
YAMBARAN PAUSA SAKA BEN LTD
Plaintiff

AND
NATIONAL CAPITAL DISTRICT COMMISSION
Defendant

Waigani: Thompson J
2021: 5^th & 18^th August

COSTS - taxation of costs – party/party basis

Counsel:

Mr R. Tamarua, for the Plaintiff
Mr T. Kupa, for the Defendant

18^th August, 2021

1. THOMPSON J: This was an application by the defendant to review the plaintiff’s costs which had been taxed and certified in the sum of K234,284.50, on 16 March 2020. The costs had been taxed pursuant to a Court Order of 11 February 2019 whereby the defendant was ordered to pay the plaintiff’s costs of the proceedings.
   
2. Pursuant to order 22 Rules 23 and 24 National Court Rules and order for the defendant to pay the plaintiff’s costs, which were not directed to be paid on a solicitor / client basis, means payment of costs on a party/party basis, and this means payment of costs which were necessarily and properly incurred by the plaintiff for enforcing his rights.
   
3. A preliminary objection by the defendant, to the taxed costs, was to the hourly rate which had been allowed at K700.00. The defendant objected that this was an excessively high rate for work performed in 2002. The plaintiff responded by submitting that the hourly rate had been agreed at the taxation.
   
4. The copy of the Bill of costs on the court file, has been annotated in handwriting, and these annotations seem to have been made by the taxing officer on 10 March 2020, which was the date of the taxation. It shows no amendments made to the hourly rate. A perusal of the Revised Objections filed by the defendant on 2 March 2020, shows that the defendant said, in relation to items 3, 5 and 6 for example, where one hour at K700.00 was claimed for each item, the defendant has said “allowable” for each item. This is repeated elsewhere in the Revised Objections.
   
5. The defendant had objected, and continues to object, to this hourly rate been allowed as part of the total of K55,560.00 which had been claimed for work performed by David Keta lawyers from March 2002 – September 2008. David Keta was not a lawyer who was employed by any of the firms of lawyers who subsequently took over the conduct of the proceedings on behalf of the plaintiff from 2008 – 2019. David Keta had died in 2008, and the defendant objected that the plaintiff’s lawyers who had prepared the bill of costs and taxable form in 2020, had no entitlement to claim such costs on behalf of the deceased lawyer. The defendant objected that there was no evidence of the hourly rate which had been charged by David Keta between 2002 – 2008.
   
6. This is really an objection on the basis that the plaintiff had not produced evidence to show that those costs had been incurred by David Keta. There was no evidence of the time he had spent, or of his hourly rate. It is therefore appropriate for this issue to be considered along with the other objections, in the review.
   
7. By the issue of the bill, prima facie the plaintiff is saying that he incurred costs for David Keta lawyers in enforcing his rights. Order 22 rule 49 (4) says that where a liability to pay a fee to counsel or to pay a disbursement has not been paid, the amount may be included in the bill if the bill states that it had not been paid, and it shall not be allowed unless it is paid before completion of the taxation. It may be inferred from these that if the costs is not a disbursement or counsel’s fee, it must be paid before being included in the Bill.
   
8. If the plaintiff had paid the amounts claimed to David Keta, the plaintiff would be entitled to include them in his bill. If he has not paid them, or paid a lesser amount, then regardless of whether they should be included in the bill, if payment is subsequently received by either of his lawyers, they would be holding that payment on constructive trust for the estate of deceased David Keta, and would have to pay those monies to the executor of his estate.
   
9. I now deal with the merits of the Objections. Each item has been objected to, as involving excessive time spent in performing the work.
   
10. I deal first with David Keta, Items 1 – 38. Items 1 charge 7 hours for drafting a writ, and Item 2 charged 2 hours for printing and filing the writ. Pursuant to the Schedule of Costs in Schedule 2 Table 1 of NCR, the rate for preparing, issuing, filing and service of a writ of summons is from K15.00 – K45.00 and this includes engrossing and three copies.
    
11. As the Schedule has not been updated for about thirty years, the TO has adopted a practice of exercising his discretion under Part 7 Item 12 of the Table, to allow figures which are higher than those prescribed in the other Parts of the Table. Item 12 says that this discretion is to be exercised by taking into account various matters set out there, including any particular difficulties of fact or law, and any special skill which may have been required.
    
12. A perusal of the Writ of Summons on the court file, shows that it was not in fact filed by David Keta, the front sheet says that it was filed by the plaintiff. This could not have been validly done, because pursuant to order 4 Rule 5 (2) NCR, a company may not commence or carry on any proceedings except by a lawyer. Further, the statement of claim comprised seven brief paragraphs, one of which referred to the first defendant, who was removed as a party in 2013 due to having been wrongly joined as a party.
    
13. The court file contains no record of David Keta filing any Appearance or Notice of Change of Lawyers to take over the conduct of the proceedings in place of the plaintiff. In any event, David Keta did not prepare, draft or file the Writ of Summons, and so Items 1 and 2 should be disallowed.
    
14. I should add here that there is nothing wrong with the party personally carrying out clerical work such as printing and filing, but it is not recoverable as a lawyer’s cost.
    
15. For the same reason, I disallow Items 3 – 6, as the court file does not show that David Keta was acting for the plaintiff on those dates.
    
16. Item 7 and onwards refer to other documents and perused by David Keta. Those documents are not on the court file, but they are recorded in the index of the file cover, and so I will accept that this work was done by him.
    
17. The time which is claimed for each of those items, is excessive. For instance, it could not have half an hour to read the order of 11 August 2003, as it comprised only three short lines. It could not possibly have taken two hours to prepare and file a simple two-line Notice to Set Down for Trial. It could not have taken five hours to prepare and file the plaintiff’s affidavit on Tender and Contract, which was a brief to pages annexing his contract documents. It did not take one hour to prepare a one-page certificate of judgment. I need not refer to individual items. Suffice it to say that the time spent on each of them is excessive, and most of them appear to have been reduced by around 50%, by the TO.
    
18. In relation to Item 34, attending at the transcript office and obtaining a copy of the judge’s two-page decision is clerical work, and in any event, could not have taken five hours. The TO appears to have allowed three hours, at the lawyer’s rate of K700.00 per hour. This should only have been allowed at a clerical rate.
    
19. The taxed costs allowed for Items 1 – 38 should be reduced to K25,000.00.

______________________________________________________________
Lomai & Lomai Attorneys: Lawyers for the Plaintiff
TL Cooper Lawyers: Lawyers for the Defendant