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Nambawan Super Ltd v Independent State of Papua New Guinea [2020] PGNC 380; N8625 (5 November 2020)

N8625

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 20 OF 2017

BETWEEN:
NAMBAWAN SUPER LIMITED
Plaintiff

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Waigani: Miviri J
2020: 15^th September, 5^th November

PRACTICE & PROCEDURE – Judicial Review & appeals – notice of Motion – Application for Payment of Penal Interest – Judgment & Orders – Enforcement of – Order 16 rule 13 (13) (1) Order 16 Rule 7 Order 12 Rule 1 – Material sufficient – Balance discharged Motion granted – penalty interest awarded – cost in the cause.

Cases Cited:

Polem Enterprice Ltd v Attorney General of Papua New Guinea [2010] SC1073
Manus Fuel Distributers Ltd v Madang Provincial Government [2019] N7789

Counsel:

M. Tumul, for Plaintiff
G. Geita, for the Defendant

RULING

05^th November, 2020

1. MIVIRI, J: This is the Ruling on the plaintiff’s notice of motion of the 20^th July 2020 seeking pursuant to Order 16 Rule 13 (13) (1), Order 16 Rule 7, Order 12 Rule 1 judgment or order for penalty interest to be paid at the rate of 6.25% as ordered by the Court on the 12^th January 2018 in the sum of K29, 695,976.89 including costs for the plaintiffs incidental to this application on a solicitor Client basis to be taxed if not agreed.
   
2. This application was moved with leave of court because despite being served affidavit of service of Lena Lekker sworn 11^th September 2020 confirming service of the court order of the matter being set today 15^th September 2020, there was no appearance by the State despite for hearing. A further affidavit of service of one Mathew Asa sworn the 28^th July 2020 deposing to service of the notice of motion with supporting affidavits and related documents was affected upon the State on the 28^th July 2020. Annexure “A” deposes service on one Brenda Koini Executive Assistant on the 7^th Floor of Sir Buri Kidu haus where Solicitor Generals are located. It means the notice of motion is on the records of that office prompting appearance of Geita Geita of that office on the 3^rd of September 2020. And on that day this order was made for the hearing today. No material has been filed to vary or vacate the sitting and hearing today. Natural Justice has been observed and so leave was granted to move the motion without the State formally. But Lawyer Kevin Kipongi also of that office was in court and opted to sit out and hear the submission moved with no reply when asked.
   
3. That motion is supported by the affidavit sworn 26^th February 2020 filed 20^th July 2020 of George Koi Manager Legal of the plaintiff who deposes that the National Court at Waigani issued the following orders annexure “A” to his affidavit:
   
   • (a) An order in the nature of Mandamus compelling the Defendant to pay to the Plaintiff (as Trustee of POSF) through its relevant departments and officers, its component of retirement contribution for members who have exited the Plaintiff since 1^st December 2015, which is at 12^th January 2018, amounts to K230, 322, 157. 04 and continues to accrue; and
   • (b) An order in the nature of Mandamus requiring the Defendant to pay its outstanding retirement contribution with penal interest at the prescribed rate, calculated to 6.27% pursuant to section 79 of the Superannuation (General Provisions) Act 2000 and Section 7 of the Superannuation Regulation 2002, from the date on which payment was due until actual payment.
   • (c) An order in the nature of Mandamus requiring the Defendant to pay its outstanding retirement contribution with penal interest at the prescribed rate, calculated to 6.27% pursuant to section 7 of the Superannuation Regulation 2002, from the date on which payment was due until actual payment.”
     
4. The order is issued by this court presided by Justice Gavara-Nanu ordered 12^th January 2018. It remains intact and has not been varied in its application and consequently when read with section 79 of the Superannuation General Regulation penal interest must be paid from the date on which payment was due until date of the actual payment. This is in line with the Judicial Proceedings (Interest on Debts and Damages) Act 2015 section 4 (1) Pre-Judgement Interest on debts and damages where the court is empowered to order a rate as it thinks proper applied to the sum for which Judgment is given interest on the whole or part of the period between the date on which the cause of action arose and the date of the Judgment. And in post Judgment it is the same on the interest from the date when the Judgment or order takes effect on such of the money as from time to time, unpaid. By section 155 (4) Constitution equity pleaded here can be accorded if the balance is tilted by the materials relied to that end.
   
5. And the application emanates from the orders of this court set out above. Which has not been accorded due dispensation fully. This is the part that is remaining and despite ask to settle affidavits of Mathew Tumul sworn 2^nd September 2020 with that of George Koi Manager Legal of the plaintiff no payment or action has been taken to settle.
   
6. And the background is clear by the Statement pursuant to Order 16 including the affidavit verifying the facts with the Statement of Agreed and Disputed Facts and legal Issues for trial that essentially Nambawan Super Limited (NSL) is the licensed Trustee of the Public Officers Superannuation Fund (POSF). That on retirement of a member of POSF, NSL pays out the amount of employee and employer contributions, including interest, standing to the credit of the member. In compliance of Section 78, 81, Schedules 6 and 9 of the Superannuation General Provisions Act. The defendant is obligated to pay to the NSL its regular employer contributions within 14 days of the end of each calendar month and in respect of the members of the POSF, upon retirement or death (exiting members), the remainder of its contributions for and on behalf of such member (exit benefit).
   
7. The State has not accorded its part by the law since the 1^st December 2015 its component of Exit benefit retirement contribution for members of NSL who have exited. The present proceedings were instituted attained and now this leg to recover the penalty due and owing. Notice of it has been given details set out in the affidavit of George Koi Manager Legal of the plaintiff which evidences concession made to get the same without any formal court appearance. He confirms the Judgment debt paid in full and sets out the figures. But not the total interest on the Judgment debt which includes pre-judgment and post Judgement, which is the sum of the former K16, 703, 876. 88 added to K 12, 992, 100. 01 giving the sum total of K 29, 695, 976. 89 due and payable as unpaid penalty interest.
   
8. Annexure C, D, and F of the affidavit of George Koi Manager legal evidence the notices that have been given to the state to pay or make administrative arrangements to pay of that money. It has not been coming and so this application for an order for payment of that money. In my view that is more than enough time given to the State to amicably settle.
   
9. Because Court Orders are to be adhered to and carried out even if it is the State on this occasion. There is nothing apparent or identifiable to make against except in accordance with the application made. Because pre-judgment interest and post judgment interest were differentiated in Polem Enterprice Ltd v Attorney General of Papua New Guinea [2010] PGSC 20; SC1073 (15 September 2010) and reinstated in Manus Fuel Distributers Ltd v Madang Provincial Government [2019] PGNC 57; N7789 (2 April 2019). That the pre-judgment interest is calculated for the period when the causes of action arose to the date of Judgment and post that is from the date of Judgment to the date when payment is made. Given the facts and circumstance here that is applicable and determined in this application. That is the law applicable here and a spread sheet was made out by the Plaintiffs calculation at the rate of 6.27 pursuant to the orders of this court of the 12^th January 2018. And clearly there are two parts (1) prejudgment interest in the sum of K16, 703, 876. 88 added to K 12, 992, 100. 01 giving the sum total of K29, 695, 976. 89 due and payable as unpaid penalty interest.
   
10. I am satisfied on the material that this is the amount due and payable by the defendant the State and that the balance has been discharged by the applicant for an order for the payment of K 29, 695,976. 89 as unpaid penalty interest arising yet to be settled from that Judgment. Because the action is really undefended by the State the Costs will not be on indemnity basis. Further I take into account that the judgment debt has been paid by the defendant except this proceeding for the penalty interest. It would be different if that is still outstanding. Yes, representation have been made by the plaintiff for settlement to no avail but that has not carried on into the proceedings here. It is as if the state has admitted that it owes that figure pleaded. And has not come to defend the case against it. Therefore, costs will be on a party to party basis rather than on an indemnity basis.
    
11. Accordingly, the formal orders of the court are:
    
    • (i) The motion is granted as pleaded.
    • (ii) The defendant will pay K 29, 695,976. 89 to the plaintiff as unpaid penalty interest as ordered by this court on the 12^th January 2018.
    • (iii) The defendant will pay the plaintiff’s cost on a party to party basis.

Ordered accordingly.

__________________________________________________________________

Allens: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for the Defendants