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Papua New Guinea District Court |
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING ITS GRADE FIVE CIVIL JURISDICTION]
GFCr 1131 of 2002
BETWEEN
FRANK JUDAH
Complainant
AND
Lae: C Inkisopo
2005: 22 December
CIVIL -District Courts Act Chapoter 40 – a claim for payment of costs of proceedings and cost of a failed application at the District Court – proceedings for alleged non-payment of costs account-
District Courts Regulation – Schedule for costs – Lawyers and Agents costs under Schedule 4 of District Courts Regulation – costs computations of costs to be done in accordance with the costs Schedule under the District Courts Regulation-
Practice and Procedure – computation of costs on account of costs ordered in a Court proceeding to be done in accordance with and be guided by Schedule 4 of the Regulation.
Cases Cited
Baiyer River Local Level Government Council –vs-Robert Yandapu & Kundi Maku [1980] PNGLR 430
Dennis McEnroe –vs-Felix Mou [1981] PNGLR 222
References
Counsel
Mr Mugarenang of Counsel of MPA Legal Service Unit for Applicant
Mr Mambei of Counsel of LULLG Legal Services Unit for Respondent
REASONS FOR RULING
C Inkisopo : [On 22 December, 2005 this Application was heard after which I indicated to both Counsel that I will deliver my ruling in writing and this I now do so]
2. This is an application by the Complainant/Applicant/Cross-Respondent (I’ll call him “the Applicant” for short and convenience) by way of a Notice of Motion filed and dated 29 September, 2005 in which he sought an order in the nature of a Warrant of Execution to attach the assets of the Defendant/Respondent/Cross-Applicant (“Respondent” for short) and sold to settle an alleged outstanding costs of proceedings allegedly incurred in certain Court proceedings between both parties under proceeding entitled DC 1131 of 2002.
3. The Respondent filed and served a counter motion seeking the following specific relieves:
4. In the interest of convenience and expedience, both matters were heard together on 22 December, 2005 when both Counsel were heard in oral submissions where they presented each of their respective client’s cases. Accordingly, I consider it most expedient to lump up the two applications and make a ruling on same.
5. From each of the party’s re presentations, I make out the following to be their respective cases/contentions the issues of which I summarize as follows;-
Issues
Applicant’s Case
6. Applicant contends that the Respondent has defaulted in paying the two (2) lots of costs of proceedings that were entered against him. The first was a sum of four hundred and eighty four kina (K484.00) that Applicant says was ordered on 12 November 2002 while the second was for a sum of one thousand, two hundred and three kina sixty toea (K1,203.60) that was incurred in defending a set-aside application made by Respondent which was refused on 18 March, 2004 – so the Applicant contends. He claims that the Respondent should pay the total of these two sets of costs at one thousand six hundred and eighty seven kina sixty toea (K1,687.60) which he claims remains outstanding to date.
Respondent’s Case
7. Respondent seems to me to be saying that he owes nothing to the Applicant for he says the calculated costs ordered as of 12 November 2002 in the sum of four hundred and eithty four kina (K484.00) was fully recovered when his tractor was attached upon a warrant of execution and auctioned off by the Office of the Court Sheriff and cash return realized. As regards the alleged cost of one thousand two hundred and three kina, sixty toea (K1, 203.60), Respondent’s Counsel submitted that it was irregularly calculated – hence he submitted that the matter of costs emanating from the order for costs of 18 March 2004 must be taxed by this Court.
Case assessments
8. In his submission, Counsel for the Applicant argued that even with the warrant of execution of the Respondent’s asset attachment and subsequent sale, the total judgment order could not be settled as the tractor auction made a return only of seven thousand five hundred kina (K7, 500.00) leaving out an outstanding balance of five hundred kina (K500.00) (See his Affidavit evidence in paragraph five (5 )of affidavit dated 07 November 2005. In my view, this line of argument is crucial for the Applicant’s case and as is the normal practice, Applicant had to substantiate this claim – that the sale of the tractor realized a cash return of only seven thousand five hundred kina (K7, 500.00) and not anything else. In my view, Applicant is making a statement in a solemn Court document attesting to a fact that is crucial having the potential to settling this issue once and for all. Hence, in my view it is imperative that he proves by material evidence the exact figure realized from the tractor auction. I am of the view that some type of a documentary evidence from the auctioneer or the Sheriff’s office would have sufficed. Applicant has unfortunately failed to produce anything in that regard to substantiate the exact tractor auction sale receipt but to claiming only seven thousand five hundred kina (K7, 500.00) as having been received. He therefore declares that Respondent has not paid any of the judgment orders – effectively painting a picture of the Respondent as one who has not been paying up his judgment order. I am not at all prepared to accept that the Respondent is one who has not paid anything at all because we all know that one of his valuable assets namely a tractor was attached under the due process of law and sold at a public auction and money of substance was realized in that process and it is assumed that Applicant has received something of substance as opposed to virtually nothing. Why Applicant can not produce evidence or record of the overall proceeds of the tractor auction is something we shall never know. The procurement of information to show the Court the actual cash proceeds of the tractor auction sale is something that would be in the best interests of the Applicant to have done so but he failed to do so. On this basis, I am led to conclude that Applicant is deliberately withholding valuable information for his own purpose, whatever that may be.
9. Where does that lead us to on this issue of whether or not Respondent has paid the costs of four hundred and eighty four kina (K484.00) as ordered on 12 November, 2002?
10. Where there is no evidence as to how much exactly was realized from the public auction sale of the tractor coupled with the claim that the sale proceeds were far below the judgment figure, where does that then lead us to and what would that mean to us in this case?
11. Under that circumstance the next best and most logical conclusion opened to be drawn from those facts is that the tractor sale was sufficient to fully settle the total judgment order and that it did in fact settle the total judgment order of eight thousand five hundred and twenty four kina twenty eight toea(K8, 524.28) originally recorded as of 12 November 2002. I feel more inclined to agreeing with Respondent’s Counsel’s submission against that of the Respondent’s where he says that:
“He (Applicant) should have substantiated his statement (tractor sold at less than judgment order value) with necessary documentations from the Sheriff or the Auctioneers which he has not “
12. I further see some sense in Respondent’s Counsel’s submission that the Defendant has paid all the judgment debt owing to the Complainant as ordered by the Court on 12 November 2002 when the tractor was auctioned off.
13. The Court feels fortified in this conclusion spurred on by the fact (commonly known) that tractors are a useful item of machinery and even second hands hardly go for less than ten thousand kina (K10, 000.00) and besides, this was an auction sale that would normally have attracted a minimum reserve price being the exact judgment figure or anything –even higher than the judgment order. There were possibilities for that to happen and I am not convinced that the auction sale fetched only seven thousand five hundred kina (K7,500.00). In the absence of disclosure of the exact figure realized from that auction sale, the next best I can do is to speculate and my such speculation gains substance when the Applicant who is supposed to be equipped with the right information is not assisting enough in this application. It is trite law of evidence that ‘he who alleges must prove’.
14. On the basis of the above discussions, I am led to reach only one conclusion and that conclusion is none but to say that:
“The Respondent does not owe the Applicant any outstanding debts on account of legal cost as per the order of 12 November 2002.
15. The next is the issue of the other costs as ordered as of 18 March 2004 which was calculated to being one thousand two hundred and three kina sixty toea (K1, 203.60) following a failed application to set aside the order of 12 November 2002 by the Respondent. To this cost, Respondent contends that it was irregularly calculated and that this Court should revisit this calculation by way of taxation.
16. Counsel for the Respondent in his submission has in my view stated the correct statement of the legal position on the issue of costing of a legal proceeding in a District Court. I feel inclined to accepting his submissions as set out in paragraph five (5), on page two (2) of his Submissions as setting out the correct position (which I quote whilst leaving out matters not relevant for my purpose):
“’The calculation of the costs should be guided by the District Courts Act, 1963 ...The District Courts Act, 1963 provides at Section 263 that “A lawyer or agent is not entitled to receive more by way of fees for work done by him than the prescribed sums’ The District Court Regulation provides at Section 48 of the Act that for the purpose of Section 263 of the Act, the maximum fees for lawyers and agents are as set out in Schedule 4’. The National Court decisions of Baiyer River Local Local Level Government Council –vs- Robert Yandapu & Kundi Maku [1980] PNGLR 430 and Dennis McEnroe –vs- Felix Mou [1981] PNGLR 222 give support that all costs should be as set out in Schedule 4 and not otherwise.”
17. With this statement in mind, I deal with each of the Applicant’s costing item by item as they appear in his actual computation of costs.
18. Before actually enquiring into this matter we must bear in mind that the actual proceeding at the proceeding out of which this issue arose was an application by the Respondent to set aside the original Court order of 12 November 2002 entered against him which application failed. The Respondent in that case who is the Applicant now was ordered to have his costs of responding to the Application paid for by the Applicant then, the Respondent now. This present application arises out of that order for costs.
Item A of Complainant’s costs Calculation
19. The Applicant claims his costs pursuant to Item seven (7 )of Schedule 4 of the District Court Regulation and calculates his costs as being two thirds of one hundred and sixty eight kina (K168.00) being one hundred and thirty kina (K130.00) which he multiplies by eight (8) subsequent days totalling one thousand and forty kina (K1, 040.00).
20. I am not amenable to accepting that this case realistically took eight (8) days to complete. It was only an application to set aside and not one that would normally expect to take that number of days to complete. Applicant has not shown to my satisfaction by production of actual court Orders for those eight (8) days granting him costs so that he would be within the ambit of those orders to compute his costs as he did in this case. Accordingly, I find that Applicant is not entitled to something he has not been allowed by the presiding Court on those various subsequent days. Even then, making allowances for those times when cases get adjourned for various causes of neither party’s making, independent of either party’s fault, a common fact we all know too well that cases don’t get heard on fixed dates. Besides, Applicant has not shown to the Court material evidence showing that on all those subsequent 8 days of Court attendances, costs for those subsequent appearances were granted to him. On this basis, I hold the view that Applicant is not entitled to be granted costs for those subsequent 8 days and I hold that view for two (2) reasons;-
21. Accordingly but more in all fairness to the Applicant, I am prepared to allow the Applicant to have his costs for the first day’s appearance in Court at one hundred and sixty eight kina (K168.00) flat and only one subsequent other appearance at the rate of two-thirds which I arrive at one hundred and twelve kina fifty six toea (K112.56). I therefore allow a total of K280.56 in favour of the Applicant under this head of claim.
22. I disallow the Applicant’s claim for costs under Item “B” being for witness’s expenses as this case did not need attendance of witnesses for it was only an application to set aside a previous order.
23. Applicant’s costs under Item “C” being ‘Miscellaneous Fees’ is allowed but reduced by half as sixty toea (60t) per copy is unreasonable as we all know that the current private photocopying charges in town go for thirty toea (30t) per copy. I therefore allow the Applicant’s costs under this head at a total figure of only twenty four kina thirty toea. (K24.30).
24. The total costs pursuant to the order of 18 March, 2004 in favour of Applicant are now assessed as follows:
| 1: | Costs per Item “A” | =K280.56 |
| 2: | Costs per Item “C” | =K024.30 |
| | | K304.86 |
ORDERS
26. On the basis of the above discussions, I make the following orders;
Mr Mugarenang of Counsel of MPA Legal Services Unit For Applicant
Mr Mambei of Counsel of LULLG Legal Services Unit For Respondent
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