Timothy Peter Neville and Peter John Dalton Neville v Privatisation Committee [Privatization Commission] (2004) N2724

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Davani J
• Judgment Date: 04 November 2004
• Citation: (2004) N2724
• Judgment Number: N2724
• Year: 2004

Full Title: Timothy Peter Neville and Peter John Dalton Neville v Privatisation Committee [Privatization Commission] (2004) N2724

National Court: Davani J

Judgment Delivered: 4 November 2004

N2724

IN THE NATIONAL COURT OF

JUSTICE AT WAIGANI

PAPUA NEW GUINEA

OS 548 OF 2001

BETWEEN:

TIMOTHY PETER NEVILLE and PETER JOHN DALTON NEVILLE

Plaintiffs

AND:

PRIVATISATION COMMITTEE

Defendant

Waigani: Davani, .J

2004: 3rd, 4th November

Practice and Procedure – Application to join – application made when taxed costs remain unpaid – Court exercising its discretionary powers can stay application to join until costs are paid – O. 12 R. 7 (2) of National Court Rules

Costs – set-off of unpaid costs against an unproven claim – taxed costs not to be credited against unproven, outstanding debt – O. 22 R. 58 of National Court Rules.

Cases cited

Edwards v. Hope [1885}14 QBD 922

Reid v. Cupper [1915] 2 KBD 147

Paul Pukari and Oro Cable TV v. Peter Seeto [1997] PNGLR 246

T. Elemi for the Plaintiffs/Applicants

T. Nongorr for Bank of South Pacific

No appearance by Defendants

RULING
(Application to stay and application to join)

4th November 2004

Davani .J: There are two motions before me. Gadens Lawyers motion filed on 3rd June 2004 which motion seeks amongst others, an order that the Bank of South Pacific Limited and Mr David Wardley in his capacity as receiver of Coecon Limited be joined as defendants in this matter. I understood this to be the only order being sought by the bank and Mr Wardley and that paragraphs numbered 2, 3, 4, 5, 6 and 7 of the motion were to be moved after an order joining the both parties were made by the court.

In amended Notice of Motion filed on 17th August, 2004, by Rageau, Elemi and Kikira Lawyers, Timothy and Peter Neville (the ‘Nevilles’) seek orders that the application to join by the bank and Mr Wardley be dismissed or alternatively that the application for joinder by the bank and Mr Wardley be stayed until the Supreme Court costs in SCA 1 of 2002 and costs awarded on 26th November 2001 against Bank of South Pacific and David Wardley are paid in full. The Nevilles also ask in the alternative that these proceedings be consolidated with WS 173 of 2003.

I dealt firstly with the application seeking a stay of the Bank and Mr Wardley’s application to join.

In support of the Neville’s application is the affidavit of Turai Elemi sworn on 17th August, 2004 to which is attached a true copy the Supreme Court judgment in proceedings SC Appeal No. 50 of 2003 and a true copy of the certificate of taxation of costs in proceedings SC Appeal No. 1 of 2002. In his affidavit, Mr Elemi deposes that the costs have not been settled by the bank and Mr Wardley.

Further, Timothy Neville in his affidavit sworn on the 9th June, 2004 and relied on by the Nevilles in this application, deposes at paragraph 3 that the PNGBC Limited and Mr Wardley did apply by way of motion filed on 12th September, 2001 seeking to be joined as parties to the proceedings. This was heard by Justice Kandakasi on 18th September, 2001 and was dismissed by His Honour on 26th November, 2001. On appeal to the Supreme Court in SCA 1 of 2002 against the National Court’s decision, the Supreme Court dismissed the appeal on 10th October, 2003. It is the costs of this appeal that the Nevilles now seek to be paid in full. I note that the Certification of Taxation filed on 12th July, 2004 and attached to the affidavit of Mr Elemi sworn on 17th August, 2004 is a certification by consent for the sum of K5622.10.

Without hearing arguments on merits as to why the Bank of South Pacific is now seeking to be joined in these proceedings, I take note of the Supreme Court’s decision in SCA 1 of 2002 where it refused the Bank’s application to join the substantive proceedings between Timothy Neville, Peter Neville and the Privatisation Commission and held that it “was a final judgment in that it terminated the action between the appellant and the respondents as there was no further issue on foot between them to be determined at a later date”.

I note also the existence of proceedings WS 173 of 2003 where both the Bank of South Pacific and David Wardley are parties to those proceedings. As it is, both the Nevilles, the Bank of South Pacific and David Wardley as receiver have filed several court proceedings which have now become very congested with numerous applications on foot including appeals to the Supreme Court.

Mrs Nongorr submits that the costs sought by the Nevilles should not be paid by her client because there are proceedings on foot filed by PNGBC Limited in WS 1362 of 2001 where it claims against Timothy Neville and Peter Neville the sum of approximately K790,000.00. This is confirmed by statement from the Bank of South Pacific Limited attached to the affidavit of John Maddision sworn on 17th August, 2004 which shows the closing balance as at 16th August, 2004 for the account of Timothy and Peter Neville to be K778,524.09. In response to this, Mr Elemi produced sealed copy of the Nevilles Defence filed in proceedings WS 1362 of 2001, on 20th September, 2002, which Defence is very detailed. The Defence denies that it owes the bank the monies owing. The Nevilles in that Defence, plead a cross claim, which claims special damages, general damages, interest and costs. The special and general damages are in relation to an allegation of breach of a duty of care by the bank to sell the property at its market value at approximately K650,000.00. It also alleges that the defendants, in this case the Privatisation Commission had failed to account to the Nevilles all monies it received as rental thereby breaching the duty of care by failing to account.

The issue now is whether the court can under those prevailing circumstances, order that the Nevilles costs be paid?

Mrs Nongorr submits that her clients should not pay the costs because the taxed costs can be credited against the monies owing to the bank by the plaintiffs. In this case the various proceedings including the bank and the Nevilles are all interrelated. However, the issues dealt with in the various applications before the court are different. But Mr Madison for the bank deposes in his affidavit sworn on 2nd June, 2004, that once the plaintiffs Certificate of Taxation has been converted into a judgment amount, that the Bank of South Pacific shall credit that amount against the amount owed to the Bank of South Pacific by Timothy and Peter Neville. In fact, the Bank does not wish to pay any monies to the plaintiff, as costs.

What powers does the court have in relation to the making of orders of the orders sought by both counsel?

Mr Elemi for the plaintiff/applicants cited to me O. 12 R. 7 (2) of the National Court Rules which reads;

“7. Dismissal

…

(2) Where –

(a) the court makes an order for the dismissal of proceedings so far as concerns the whole or any part of any claim for relief by any party;

(b) The court orders that any party to pay any costs; and

(c) Before payment of the costs, that party brings against a party to whom the costs are payable further proceedings on the same or substantially the same cause of action as that on which that claim for relief was founded,

the court may stay the further proceedings until those costs are paid.”

He also relies on Paul Pukari and Oro Cable TV v. Peter Seeto [1997] PNGLR 246, a judgment of Doherty .J. In that case, the court held that when judgments in the same or related actions have not been complied with, that this amounts to an abuse of process. The court then grants stay orders until judgments are satisfied. The court further held that this also applies where the court has ordered the party pay costs.

Mrs Nongorr submits that O. 12 R. 7 (2) of the rules is discretionary in that the court may stay proceedings until costs are paid. In saying that, Mrs Nongorr submits that the statement from the bank attached to Mr Madison’s affidavit is evidence of debt owing by the Nevilles to the bank and it is on that basis that the court should order that the taxed costs be credited to the debt owing. However, I remind myself again that the amount claimed is denied by the Nevilles and that this matter has yet to be determined by a court of law. So if the amount is disputed, then the court should not under any circumstances order that the taxed costs be offset...