Tininga Ltd v Nolka Ltd

• Jurisdiction: Papua New Guinea
• Judge: Nablu, J
• Judgment Date: 13 April 2017
• Citation: (2017) N6727
• Court: National Court
• Year: 2017
• Judgement Number: N6727

Full : OS (JR) No 130 of 2015; Tininga Limited and Puma Energy Limited v Nolka Limited and Raga Kavana as Registrar of Titles and Benny Allen as Minister for Lands and Physical Planning and Chairman of the PNG Land Board and Independent State of Papua New Guinea (2017) N6727

National Court: Nablu, J

Judgment Delivered: 13 April 2017

N6727

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 130 OF 2015

BETWEEN:

TININGA LIMITED

First Plaintiff

AND:

PUMA ENERGY LIMITED

Second Plaintiff

AND:

NOLKA LIMITED

First Defendant

AND:

RAGA KAVANA as Registrar of Titles

Second Defendant

AND:

BENNY ALLEN as MINISTER FOR LANDS AND PHYSICAL PLANNING

Third Defendant

AND:

CHAIRMAN OF THE PNG LAND BOARD

Fourth Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Waigani: Nablu, J

2017: 10 March, 13 April

JUDICIAL REVIEW– Substantive judicial review settled by consent – the effect is that the plaintiff’s judicial review application was upheld – the question of costs was reserved and argued.

PRACTICE AND PROCEDURE – Costs – Solicitor-Client basis – the general rule is that costs follow the event - whether costs can be awarded on a solicitor-client basis – whether certification of overseas counsel appropriate –objection to the certification of overseas counsel’s costs upheld – conduct of the respondents was blameworthy and prolonged the proceedings – costs awarded on a solicitor – client basis.

Cases cited:

Latham v. Henry Peni (1997) PNGLR 435

Benny Balepa v. The Commissioner of Police and the Independent State of Papua New Guinea (1995) N134

Gulf Provincial Government v. Baimuru Trading Pty Ltd [1998] PNGLR 311

PeterAigilo v. The State (2001) N2102

Don PombPolye v. Jimson Sauk Papaki [2000] PNGLR 166

Bank of Hawaii (PNG) Ltd v. PNG Banking Corporation (2001) PNGNC 98

Jordan v. Edwards [1979] PNGLR 420

Mc Vie v. Woodward [1990] PNGLR 305

POSF Board v. Sailas Inmanakuan (2001) SC 677.

Counsel:

H.Leahy, for the First Plaintiff

H.Kevau, for the Second Plaintiff

W. Mininga, for the First Defendant

E.Bua, for the Second, Third, Fourth and Fifth Defendant

13th April, 2017

1. NABLU, J: Before me is the first and second plaintiff’s application for costs to be awarded on a solicitor - client basis and the first plaintiff’s application for certification of overseas counsel’s costs.

2. By way of background, the first plaintiff was granted leave on 23rd April 2015 to review the decision of the Registrar of Titles in regard to State Lease Volume 57 Folio 46, Portion 849, Dobel, Milinch Hagen, Fourmil Ramu, Western Highlands Province. The first plaintiff had purchased land from Puma Energy Ltd the registered title holder.

3. The contract of Sale of Land was concluded on or about 28th June 2013. The transfer instruments were registered on 5th November 2013.

4. Unbeknown to the first and second plaintiff, the first defendant had applied to the Secretary for Lands at that time on 14th February 2011 seeking available State Land for lease. The Department of Lands had informed the first defendant that Portion 848, Milinch Ramu, Mt Hagen, Western Highlands Province was available.

5. That land was allegedly forfeited on 19th May 2011 and then on 20th January 2012 the State purportedly granted the State Lease to the first defendant.

6. In the substantive judicial review the relief sought by the plaintiff pursuant to their notice of motion filed on 30th April 2015 was:

1. Pursuant to Order 16 Rule 5 of the National Court Rules (leave having been granted) the plaintiff makes application for judicial review of the decisions of the defendants set forth below to be brought into the National Court and quashed or set aside:-

1) the decision of the third defendant made on 19 May 2011 to forfeit the State Lease; and

2) the decision of fourth defendant made on 20th January 2012 to grant a State Lease to the first defendant; and

3) the decision of the second defendant made on 11th July 2013 to register the first defendant’s State Lease pursuant to Section 10 of Land Registration Act and then issue a certificate of title to the State Lease naming the first defendant as the registered proprietor.

2. A mandatory order against the second defendant that the State Lease relative to Portion 849 MilinchRamuFourmil Hagen, Western Highlands Province and issued in favour of the first defendant as grantee or lessee be cancelled.

3. Damages under Section 150 of the Land Registration Act (chapter 191).

4. Such further or other relief as the Court deems appropriate;

5. Costs.

6. The matter was listed for hearing of the substantive judicial review application however on that day, the parties handed up consent orders which effectively settled the matter. The only issue for determination was the question of costs. The consent orders were endorsed by the Court. It is necessary for me to set out the terms of the consent orders:

1) The first defendant is in possession of a defective certificate to title to the land described as Portion 849, Dobel, Milinch Hagen, Fourmil Ramu, Western Highlands Province being the whole of the land contained in State Lease volume 57 folio 46 and more particularly referred to in the affidavit of the Acting Registrar of Titles, Mr Yanjol Apin sworn 4th July 2016 and filed 5th July 2016 (the “Defective Title”).

2) Within seven (7) days of today, the first defendant, namely Nolka Limited shall surrender the Defective Title to the Registrar of Titles, the second defendant named herein and the Registrar of Titles shall immediately after the surrender of the Defective Title copy to all the other parties or their lawyers such notice or letter of surrender showing receipt by the second defendant.

3) Immediately upon receipt by the second defendant of the Defective Title, the second defendant shall nullify the same pursuant to Section 160(1)(a)(i) and Section 161 (1)(a) of the Land Registration Act and not less than 2 days after annulling the Defective Title he shall write and inform the first and second plaintiffs or their lawyers of the cancellation.

4) The interim restraining orders made by the National Court and entered on 29th April 2015 shall immediately cease to have any further effect.

5) The first defendant, its officers, servants and agents acknowledge that it has no right, title or interest in the land more particularly described as Portion 849, Dobel, Milinch Hagen, FourmilRamu, Western Highlands Province being the whole of the land contained in State Lease volume 57 folio 46.

6) The question of the costs is reserved to a date to be set by the Court for further argument, submission and determination.

7) The hearing of the questions of costs is listed for hearing and submissions by the parties on Friday 10th March 2017 at 9:30am.

8) Counsels are at liberty to file their extracts of submissions before the hearing date.

9) The time for the entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

8. Parties fully argued the issue of costs. I have considered the oral and written submissions by the parties and now rule on the question of costs.

9. There are two legal issues for determination before the Court;

· Whether the Court should certify the costs of overseas counsel; and

· Whether the defendant’s should jointly and severally pay for the first and second plaintiff’s costs on a solicitor-client basis.

10. I will deal with the first issue of certification of overseas counsel costs first.

11. The first plaintiff submitted that the certification of overseas counsel is justified. The first plaintiff had engaged an overseas counsel namely, Ian Molloy to provide legal assistance in the event that the matter proceeded to a substantive hearing. The main reason for engaging counsel was that the first plaintiff did everything possible to ensure that the decision would be in its favour. The first plaintiff had expended a substantial amount of money, K4 million to be exact in purchasing the land from the second plaintiff and therefore it wanted to ensure that the first plaintiff’s interest was protected.

12. Mr Bua of counsel for the State, objected to the certification of overseas counsel costs and submitted that the test for considering whether the costs of overseas counsel should be certified was considered in the case of Bank of Hawaii (PNG) Ltd v. PNG Banking Corporation (2001) PNGNC 98. The Court set out the following considerations;

· Whether there was an important and or complex issue:

· Whether the issues where raised and considered in an earlier case in Papua New Guinea;

· Whether there was a lack of local expertise;

· Whether there was a substantial amount involved; and

· If the overseas counsel had been previously engaged and had he or she imparted his or her skills and knowledge to a local lawyer or lawyers.

13. The law on certification of costs is provided for under Order 22 Rule 26(1)(b) of the National Court Rules. The fees, costs and expenses of overseas counsel may be allowed only if they are certified by...