Moresby Plumbing Suppliers & Ltd trading as Plumbers & Builders Supplies v Timkumba Holdings Ltd and Bank of South Pacific (2020) N8309

• Jurisdiction: Papua New Guinea
• Judge: Dowa AJ
• Judgment Date: 02 March 2020
• Court: National Court
• Citation: (2020) N8309
• Docket Number: WS No 194 of 2017
• Year: 2020
• Judgement Number: N8309

Full Title: WS No 194 of 2017; Moresby Plumbing Suppliers & Ltd trading as Plumbers & Builders Supplies v Timkumba Holdings Ltd and Bank of South Pacific (2020) N8309

National Court: Dowa AJ

Judgment Delivered: 2 March 2020

N8309

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 194 OF 2017

BETWEEN:

MORESBY PLUMBING SUPPLIERS & LTD trading as PLUMBERS & BUILDERS SUPPLIES

Plaintiff/Judgment Creditor

AND

TIMKUMBA HOLDINGS LTD

Defendant/Judgement Debtor

AND

BANK OF SOUTH PACIFIC

Garnishee

Lae: Dowa AJ

2020: 2nd March

JUDGEMENT RECOVERY - Enforcement of Judgment – Garnishee Proceedings, Proper Procedure to be followed under Order 13, Rules 56-61 of the National Court Rules.

Cases Cited:

Aure v Sai Business Group Inc (2008)

Kedmec Auto Repairs v PNG Power Ltd (2019) N7930

References:

National Court Rules 1983

Counsel:

R Geoctau, for the Plaintiff/Judgment Creditor

No Appearance, for the Defendant/Debtor

No Appearance, for Garnishee

DIRECTIONAL RULING

20th March 2020

1. DOWA AJ: This is a directional ruling. I have given an oral direction to the lawyer for the Plaintiff in this matter and others in court regarding the procedure to be followed in garnishee proceedings.

2. This has come about due to misunderstanding and misapplication of the procedures under Order 13 Rules 56 and 61 of the National Court Rules.

3. Order 13 Rules 56 & 61 is set out below:

56. Garnishee notice. (46/3)

(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 judgement or order is unsatisfied; and

(b) There is a debt due or accruing to the judgement 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.

(7). A garnishee notice shall include such particular of the debt attached as are known to, or reasonably capable of ascertainment by the judgement 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 judgement creditor.

“61. Payment to judgment creditor. (46/8)

Subject to Rules 62 and 63, the Court may, on motion pursuant to the garnishee notice, order the garnishee to pay to the judgement creditor the debt attached to the extend specified in the garnishee notice, or so much of the debt attached to the extent so specified as is required to satisfy the judgement or order on which the garnishee proceedings are taken together with inters and such costs of the garnishee proceedings as may be payable to the judgement creditor out of the debt attached.

4. The garnishee proceedings are commenced under Rule 56, sub-rule (1). Firstly, a judgement Creditor shall obtain prior leave to file and serve a garnishee notice. Leave can be obtained by filing a notice of motion or by the court on its own motion. As a matter of practice a notice of motion is preferable and should be filed. The notice of motion shall be accompanied by an affidavit of debt. By this time no garnishee notice should be filed as yet. Usually the application is made ex parte but it is prudent practice to serve the judgement debtor and their lawyers. Refer: Aure v Sai Business Group Inc (2008) N3349.

5. Secondly the Judgement Creditor attends court and obtains leave. The Court in granting leave will fix a date for the return of the Garnishee Notice. The Judgement Creditor by this time shall file and serve the following documents on the garnishee and the judgement debtor:

(a) Order granting leave or order nisi

(b) Garnishee notice (Form 60)

(c) Affidavit of debt (use the same affidavit of debt filed earlier)

(d) Notice of motion for payment

6. This is a new and fresh notice of motion for payment. This is expressly required under Sub-rule(1)(b) and rule 61. The garnishee notice should now have a definite return date (use the form 60). The Garnishee Notice shall or should also have a fixed amount attached for certainty. The amount attached has to be verified and fixed by the court during the hearing of the leave application. (Refer: Kedmec Auto Repairs v PNG Power Ltd (2019) N7930.

7. The garnishee notice and other documents must be served at least three (3) clear days before the return date. For practical purposes, it is advisable to serve the important documents a week early. It is also advisable to effect personal service, and where the garnishee is a commercial bank, serve the documents at the banks head office. And file an affidavit of service thereafter.

8. In the present case I note the judgment Creditor was granted leave already. I also note a Garnishee Notice was filed prior to leave being granted. I further note the Garnishee Notice does not have a return date. In the circumstances I give the following directions.

(a) The Judgement Creditor file and serve a Garnishee Notice in the proper form, by way of amendment

(b) File and serve notice of motion for payment

(c) The garnishee notice is now returnable on 16th March 2020

________________________________________________________________

Gamoga Lawyers: Lawyer for the Plaintiff/Judgment Creditor

No Appearance for the Defendant/Judgement/Debtor

No Appearance for the Garnishee