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Riyong v Shelley [2024] PGNC 126; N10765 (30 April 2024)

N10765

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 343 OF 2009 (COMM)

BETWEEN
YAUWE RIYONG
- Plaintiff -

AND
TERENCE JOHN SHELLEY AS ADMINISTRATOR OF THE ESTATE OF TERENCE JOHN SHELLEY (DECEASED) LATE OF GOROKA, EASTERN HIGHLANDS PROVINCE, BUSINESSMAN
- First Defendant–

NOWEK LIMITED
- Second Defendant–

Goroka: Collier J
2024: 30^th April

PRACTICE AND PROCEDURE – notice of motion seeking appointment of receiver to real property of plaintiff pursuant to Order 13 Rule 2(1)(d) of the National Court Rules – previous judgment against plaintiff for costs and interest – relevant principles guiding exercise of Court’s discretion to appoint receiver – whether abuse of process

Facts

Before the Court was two notices of motion, a notice of motion to appoint a receiver filed by the first and second defendants and a notice of motion filed by the plaintiff to dismiss the notice of motion filed by the defendants as an abuse of court processes.
Held:

The notice of motion filed by the defendants was not an abuse of process and was reasonable in the circumstances. The plaintiff’s notice of motion was dismissed with costs. The orders sought pertaining to the appointment of a receiver, the powers and duties of that receiver and other such orders were reasonable in the circumstances to expedite the sale of the plaintiff’s property in order to satisfy the judgment debts.

Cases Cited:
Papua New Guinean Cases

Harold v Harro – Ruling 1 [2004] N2646
Mineral Resources Development Co Ltd v Melanesian Trustee Services Ltd [2024] SC2536
Riyong v Shelley [2020] N8269
Wartoto v State [2015] SC1411

Overseas Cases

Makins v Percy Ibotson & Sons [1890] UKLawRpCh 134; [1891] 1 Ch 133
Pelerman v Pelerman [1998] QSC 21
Ronald John Dean-Willcocks & v Nothintoohard Pty Limited (In Liquidation) [2006] NSWCA 311
Shirlaw v Taylor [1991] FCA 415; (1991) 31 FCR 222

Legislation:

Constitution of the Independent State of Papua New Guinea s 155
Judicial Review Proceedings (Interest on Debts and Damages) Act 2015
National Court Rules O 12 rr 1 and r 6(2), O 13 rr 2, 22 and 29, O 14, r 12, O 22 r 62

Counsel:

Ms M. Konge, for the Plaintiff
Mr N. Amoiha, for the First Defendant
Mr T. Injia, for the Second Defendant

30th April 2024

1. COLLIER J: Before the Court are two notices of motion. In the notice of motion filed by the first and second defendants on 31 January 2024, those parties seek the appointment of a receiver pursuant to Order 14 Rule 22 of the National Court Rules. In the notice of motion filed by the plaintiff on 23 April 2024, the plaintiff seeks dismissal of the first and second defendants’ notice of motion, on the basis that they constitute an abuse of the process of the Court.
   
2. It is convenient to first set out background facts before turning to the respective notices of motion before the Court.

BACKGROUND FACTS

3. The background facts to the present proceedings before me are set out in the judgment of Cannings J in Riyong v Shelley [2020] N8269. As the headnote to that decision explains:
   

In 1994, when the plaintiff (then a member of Parliament) and the first defendant’s father (now deceased) were good friends, they entered into an oral agreement under which the plaintiff would provide cash and other property to the deceased for investment in the deceased’s coffee business. The business was conducted by the second defendant, a company owned and controlled by the deceased’s wife. Over the next two years the plaintiff provided several hundred thousand Kina to the deceased. In 1997 the second defendant acquired the State Lease over the land on which the coffee business was conducted. During the mid-2000s the friendship between the plaintiff and the deceased soured. The plaintiff demanded repayment of his money. The deceased repaid some money, but not enough according to the plaintiff. In 2009 the plaintiff commenced proceedings against the deceased and the second defendant, claiming damages and title to the land. The deceased died in 2017. The trial was conducted in 2019. The first defendant, who is the deceased’s son and administrator of his estate, replaced the deceased as the first defendant. The plaintiff pleaded two causes of action: (1) breach of contract (based on the alleged breach of the 1994 agreement, constituted by the deceased’s failure to repay in full, with interest, the amounts advanced to him and failure to transfer a 51% share in the second defendant to the plaintiff’s wife and failure to appoint her as a director); and (2) fraud (as to the acquisition of title in the land on which the coffee business was conducted, purchased with money provided by the plaintiff). The plaintiff sought relief in the form of a judgment debt of K2,052,000.00 (in respect of the alleged breach of contract) and an order divesting the second defendant of its title over the coffee business land and transferring title to the plaintiff (in respect of the alleged fraud). The defendants did not deny existence of the 1994 agreement but argued that it was not breached as the deceased repaid what had been advanced to him, and more. The defendants denied fraud in acquisition of the land.

4. Justice Cannings in his decision found, in summary, that:

• the plaintiff had failed to prove any breach of contract;
• the second defendant purchased relevant land and became registered proprietor of the relevant State Lease in 1997 and had acquired indefeasible title to both;
• the plaintiff’s proceedings should be wholly dismissed;
• the plaintiff should pay the defendants’ costs on a party-party basis.
  

5. On 22 November 2023 the Kandakasi DCJ made two sets of orders in the proceedings.
   
6. In respect of the first defendant, his Honour dismissed a Notice of Motion filed by the plaintiff on 23 June 2023 challenging a certificate of taxation in the proceedings, and relevantly ordered as follows:

1) ...

2. Pursuant to Order 22 Rule 62 of the National Court Rules Judgement is entered for the Plaintiff to pay the Applicant Ben Shelley the sum of K15,900.40 with interest at 8% per annum pursuant to the Judicial Review Proceedings (Interest on Debts and Damages) Act 2015 and Order 12 Rule 6(2) of the National Court Rules.
3. Pursuant to Order 22 Rule 62 of the National Court Rules, that Judgement is entered that for Plaintiff to pay the First Defendant the sum of K176, 981.25 being the sum in the Certificate of Taxation filed 9 May 2023.
4. Pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 and Order 12 Rule 6(2) of the National Court Rules interest on the judgement under term 3 of these orders shall be paid at 8% per annum.
5. Costs of all motions, now heard and concluded, is fixed at K7,000 in favour of the First Defendant.
7. In respect of the second defendant his Honour ordered by consent on 22 November 2023:
   
   1. Pursuant to Order 4 Rule 38 and Order 12 Rule 1 of the National Court Rules and or section 155(4) of the Constitution, leave is granted to the second defendant to withdraw the Notice of Motion filed 21 June 2019 with no order as to costs and leave to withdraw the Notice of Motion filed 26 June 2019 with no order to costs.
   2. Pursuant to Order 22 Rule 9(2)(a) and or Order 22 Rule 62 of the National Court Rules, judgment is entered in the sum of K84.764.71 (as to the Certificate of Taxation, document # 250) in favour of the second defendant and against the plaintiff with interest at 8% per annum until the date of payment.
   3. Pursuant to Order 22 Rule 9(2)(a) and or Order 22 Rule 62 of the National Court Rules, judgment is entered in the sum of K25.787.59 (as to the Certificate of Taxation, document # 188) in favour of the second defendant and against the plaintiff with interest at 8% per annum until the date of payment.
   4. The plaintiff shall pay K500 as the second defendant's costs of and incidental to this application with interest at 8% per annum until the date of payment.
   5. The time for entry of these orders be abridged to the time of settlement by the Registrar, which shall take place forthwith.
8. It is not in dispute that the plaintiff has not paid the defendants any monies pursuant to the orders of the Deputy Chief Justice. Mr Joe Shelley, the managing director of the second defendant, also gave evidence in his affidavit filed 31 January 2024 that the second defendant and its lawyers had received no communication from the plaintiff or his lawyers in response to a letter dated 6 December 2023. It appears that there is animus between the parties – in the affidavit of Julian Kasuk filed 5 April 2024, Mr Kasuk deposed to being physically assaulted by family members of the plaintiff on 3 April 2024 when he endeavoured to serve letters on the plaintiff at the plaintiff’s Goroka residence.
   
9. By their notice of motion, the first and second defendants seek the following orders:
   
   1. Pursuant to Order 13 Rule 2(1)(d) of the National Court Rules, Andrew Pini of Pini Accountants and Advisors care of Allotment 1 Section 14. Reke Street (PO Box 6070), Boroko, National Capital District, Papua New Guinea is appointed as Receiver of the plaintiff’s land at Allotment 2, Section 6, Goroka, Eastern Highlands Province contained in State Lease Volume 21 Folio 234 (the Property).
   2. Pursuant to Order 14 Rule 22 of the National Court Rules, the powers of the Receiver shall be and include the following:
      1. demand and recover from the plaintiff, by action or otherwise, the original title document of the Property and all documents that relate to the Property which are in the possession of or under the control of the plaintiff;
      2. exercise, on behalf of the plaintiff, a right to inspect and obtain copies of documents or original documents that relate to the Property and in the possession or under the control of a person other than the plaintiff;
      100. secure and take possession of the Property by action or otherwise;
      4. obtain by private sale or public tender the best selling price reasonably obtainable as at the time of sale of the Property;
      5. execute in the name of and on behalf of the plaintiff a Contract for Sale of Land that relates to the sale of the Property and all documents necessary or incidents to the sale of the Property;
      6. apply the proceeds of the sale of the Property to satisfy the first and second defendants' respective Judgments made on 22 November 2023 and incidental costs.
   3. An Order pursuant to Order 14 Rule 22 and or Order 12 Rule 1 of the National Court Rules and the inherent jurisdiction of the Court under section 155(4) of the Constitution that the plaintiff shall:
      1. make available to the Receiver all documents and information relating to the Property in the plaintiffs possession or under the plaintiffs control;
      2. where required to do so by the Receiver, verify, by statutory declaration that the documents and information are complete and correct; and

c. give the Receiver such assistance as he may reasonably require.

4. Pursuant to Order 1 Rule 7, Order 12 Rule 1 and Order 14 Rule 18(1) and (2) of the National Court Rules, the requirement for the Receiver to give security is dispensed with.
5. The Receiver shall be entitled to remuneration on a time basis according to the time spent by himself and his staff at the rates normally charged from time to time for work of the type performed by Pini Accountants and Advisors. The Receiver's fees and expenses of his appointment to be paid out of the proceeds of the sale of the Property in priority to the Judgment made on 22 November 2023.
6. The First and Second Defendants' costs of and incidental to this application shall be paid out from the proceeds of the sale of the Property.
7. An order that the time for entry of these orders be abridged to the date of this order.
8. Such further or other orders as the Court deems fit.
9. The time for entry of these orders be abridged to the time of settlement by the Registrar, which shall take place forthwith.
10. In his affidavit Mr Joe Shelley deposed, in summary, that the second defendant had conducted separate investigations and found that:

• the plaintiff was the registered proprietor of the land to which prayer for relief 1 refers (Goroka property);
• the Goroka property was subject to no encumbrances;
• he believed that the proceeds from the sale of the Goroka property would be sufficient to satisfy judgments of both the first and second defendant; and
• he had been informed that the plaintiff intended to sell or dispose of the Goroka property land.
  

11. At the hearing of the notices of motion Mr Injia for the second defendant further submitted that while the plaintiff appeared to have interests in other property, those interests were either through a company in which he had an interest, or family members (including the plaintiff’s wife). In this respect Mr Injia drew the Court’s attention to the affidavit of search of Ms Debra Begari, a lawyer employed by the lawyers for the first defendant, filed 19 February 2024. Ms Begari deposed that:
    
    3. On 19 January 2024, I was instructed by Ms Shauna Supro to conduct a search for Mr Yauwe Riyong (“the Plaintiff”) on the Investment Promotion Authority (“IPA") online registry for the purpose of ascertaining the Plaintiffs association with registered entities, if any.
    4. The IPA search revealed that the Plaintiff is owner of the registered business name, Yafowera Estates 6-121981521. I then obtained a copy of the Certificate of Good Standing (“CGS”).

Annexed hereto and marked as “DB 1" is a true copy of the CGS for Yafowera Estates 6-121981521.

5. According to the CGS, the principal place of business for said business name is Section 298, Allotment 27, Lucas Cres, Moresby North West National Capital District (Port Moresby), Papua New Guinea (“Yafowera business address”).
6. On 24 January 2024, I was again instructed by Ms Supro, to conduct and conducted a titles search at the Office of the Registrar of Titles to ascertain the registered proprietor of the Yafowera business address.
7. The title search revealed that the Plaintiff is the registered proprietor of the Yafowera business address. I obtained a copy of the State Lease Title over that property.

Annexed hereto and marked as "DB 2” is a true copy of the State Lease Title of the Yafowera business address.

12. The property at which the Yafowera business address was conducted was Allotment 27, Section 298, Hohola (Lukas Crescent, Gerehu Stage 3B) in Port Moresby (Port Moresby property).
    
13. Examination of the annexures to Ms Begari’s affidavit shows that:

• As at 22 January 2024 (the date of the Certificate of Good Standing) three individuals were the owner of the business name “Yafowera Estates”. One of those individuals was the plaintiff.
• Although there appear to be lines missing in the copy of the document annexed to Ms Begari’s affidavit, the Residence Lease excerpted in her annexure DB-2 identified the plaintiff as the purchaser of the lease over the property, from Papua New Guinea Banking Corporation as mortgagee exercising power of sale, produced on 28 April 2023.
  

14. I also note Annexure “D” to the plaintiff’s affidavit filed 12 March 2024, being a Certificate of Valuation of the Port Moresby land dated 1 July 2023, which identified the plaintiff as the registered proprietor of that property.
    
15. Ms Konge for the plaintiff submitted that the plaintiff had been endeavouring to sell the Port Moresby property to satisfy the judgment debts of the first and second defendants. In the plaintiff’s affidavit filed 23 April 2024, he relevantly deposed:
    
    10. When I received the Defendants' Application to appoint a Receiver on the 04 March 2024 and followed with my appearance before His Honour Kandakasi DCJ on the 14 March 2024, I then had to put up notices for the sale of my Port Moresby Property as well as my two blocks of land in Erap Town in Morobe Province for any potential buyers who want to buy.

Annexed hereto and marked with letter "D" is the advertisement for sale published in the National Newspaper dated 05 April 2024.

11. I received two letters of acceptance from two interested buyers for the Port Moresby property. The first one has offered K450,000.00 to buy while the second person has offered me K400,000.00.

Annexed hereto and marked with letter "E” and “F” are copies of the letters mentioned above.

12. I intend to sell the mentioned property to whoever comes first with the money agreed and from there I can then be able to transfer the same to the Defendants nominated accounts accordingly to off set my debts respectively.
16. The plaintiff further deposed in that affidavit:
    
    14. Currently I also have already in my personal account a sum of K100,000.00 which I intend to pay as an instalment payment toward my judgment debt. The outstanding balance can come from the sale of the Port Moresby property which I anticipate will be sooner.

SUBMISSIONS OF THE PARTIES

17. In summary the plaintiff submitted:

• The application to appoint a receiver by the defendants was filed only 10 weeks after the judgment of Kandakasi DCJ ordering taxed costs for the defendant. The plaintiff was served the application to appoint a receiver through his former lawyer on 4 March 2024. This was unreasonable and unjust.
• A question was whether the defendants’ application to appoint a receiver could be made in the same court proceeding to seek an enforcement order. The present proceedings did not comply with Order 13 Rules 22 and 29 of the National Court Rules.
• The plaintiff had taken additional time to respond to the defendants because he was unrepresented for a period of time.
• The plaintiff intended to settle the judgment debt otherwise than by the sale of the Goroka property. The Port Moresby property had been valued at around K450,000.00, which would be sufficient to satisfy the judgment debt.
• There were potential buyers interested in the Port Moresby property, which was in the plaintiff’s name.
• The plaintiff also had properties in Lae which could be sold to satisfy the judgment debts.
• The Goroka property had been valued at K1.2 million, which far exceeded the judgment debt.
  

18. The first defendant submitted, in summary:

• There was no procedural impediment to the present proceedings.
• The appointment of a receiver was necessary to expedite the proceedings.
• Further extension and delay would incur further costs for both parties.
  

19. The second defendant submitted, in summary:

• The plaintiff had not paid the judgment debt to the first or second defendants, nor had he made any payments to reduce the judgment debts and interest. The second defendant company and its lawyers had not received any communication from the plaintiff or his lawyers in response to a letter dated 6 December 2023 and the orders of Kandakasi DCJ setting the judgment debts.
• The second defendant was aware that the plaintiff intended to sell the Goroka property which was the only known asset directly held by the plaintiff. There was a need for preservation of the Goroka property to guarantee that it was available to satisfy the judgment debts.
• The Goroka property was specifically sought to be subject to the receivership because, to the defendants’ knowledge, it was the only property directly held in the plaintiff’s name, and it was unencumbered. The proceeds of sale ought to be sufficient to satisfy the judgment debts as well as the costs and expenses of the receiver.
• It was in the interests of justice that a receiver be appointed. The receiver should have appropriate powers to sufficiently carry out his functions, and should be entitled to remuneration.
• Mr Andrew Pini was an insured registered company auditor, public accountant and liquidator, and had consented to being appointed as receiver. Given Mr Pini’s qualifications, the need for Mr Pini to give security should be dispensed with.
• The delays allegedly caused by the plaintiff’s lack of legal representation should not be an issue as the plaintiff was represented from December 2023 to present, either by Konigi Lawyers or Centurion Lawyers.
• If the plaintiff was serious about paying the judgment debts he would have already paid out the K100,000 allegedly in his bank account in part payment of the judgment debts. His failure to pay, or to correspond regarding payment, displayed that he was not serious about paying the judgment debt and was “hell bent on frustrating the Court process.”
• Similarly, as affirmed in the affidavit of Julian Kasuk filed 16 April 2024, Mr Kasuk was assaulted by the Plaintif’s family when attempting to serve documents on the Plaintiff. The evasion of service also demonstrated a lack of intention to engage with proceedings or pay the judgment debts.
• A receiver would be an agent of the court and would have powers to ensure the judgment debt was settled.
• The notice of motion of the plaintiff to dismiss the defendants’ notice of motion to appoint a receiver did not cite any proper or relevant jurisdictional basis for the court to dismiss the application.

CONSIDERATION

20. The first and second defendants seek numerous orders, but all orders relate to their notice of motion seeking the appointment of Mr Andrew Pini as receiver of the plaintiff’s land at Allotment 2, Section 6, Goroka, Eastern Highlands Province contained in State Lease Volume 21 Folio 234 pursuant to Order 13 rule 2 (1)(d) of the National Court Rules.
    
21. The key order sought by the plaintiff is that the first and second defendants’ notice of motion be dismissed as an abuse of process. I note that Ms Konge submitted at the hearing before me that the plaintiff’s notice of motion was, in essence, responsive to the process filed by the defendants.
    
22. Order 13 Rule 2 of the National Court Rules materially provides:
    

2. Payment of money
(1) A judgment for the payment of money (not for the payment of money into Court) may be enforced by one or more of the following means –

(a) levy of property; or
(b) attachment of debts; or
(c) charging order; or
(d) appointment of a receiver; or
(e) in a case in which Rule 6 applies but subject to Rule 8 –

(i) committal; and
(ii) sequestration.

(2) ...
(3) ...
(emphasis added)

23. Principles referable to the appointment of a receiver by the National Court were explained by Manuhu AJ (as his Honour then was) in Harold v Harro – Ruling 1 [2004] N 2646:
    

As to receivers, the Court is specifically empowered under the National Court Rules to appoint a receiver for the purpose of enforcement of a judgment for the payment of money; and, in urgent cases, for the purpose of interim preservation of property before the commencement of a proceeding. The general power of the Court in relation to receivers is more substantively, but not adequately, provided for in Division 3 (Receivers) of Order 14 (Miscellaneous Powers of the Court), where provisions for address for service; security; remuneration; accounts; default; and, account on death, are found.
Section 155(4) of the Constitution also equips the Court with the "inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case."
The cumulative effect of these provisions is that the Court has the discretionary authority to appoint a receiver in any appropriate proceeding before it. However, like all exercise of discretion, the exercise of that authority has to be justified. It is therefore necessary to appreciate the types of situations warranting the appointment of a receiver.
In that regard, the following examples are helpful. The position in England, according to Kerr On the Law and Practice as to Receivers, is that the English Court of Chancery and the High Court of Justice have the jurisdiction to appoint a receiver "by interlocutory order in all cases in which it appears to the court to be just and convenient that such an order should be made; and any such order may be made either unconditionally or upon such terms and conditions as the court thinks just."
Osborn’s Concise Law Dictionary defines ‘receiver’ as a person appointed by the court or individual for the collection or protection of property. That is consistent with the authority of the Court under the National Court Rules, where, as already mentioned, a receiver may be appointed for enforcement of judgments, and for the interim preservation, disposal or distribution of property. The PNG Companies & Securities Law Guide also explains the purpose of appointing a receiver, thus:

"The appointment of a receiver by the Court is unusual. Equity enables the Court to exercise its jurisdiction to appoint a receiver in two clear instances: where the appointment is necessary to preserve property pending litigation or to facilitate execution of property."

Kerr On the Law and Practice as to Receivers also explains that:

"A receiver can be properly appointed for the purpose of getting in and holding or securing funds or other property, which the court at the trial, or in the course of action, will have the means of distributing amongst, or making over to, the persons or person entitled thereto. The object sought by such appointment is therefore the safeguarding of property for the benefit of those entitled to it. There are two main classes of cases in which appointment is made: (1) to enable persons who possess rights over property to obtain the benefit of those rights and to preserve the property pending realization, where ordinary legal remedies are defective; and (2) to preserve property from some danger which threatens it."

...
On the basis of the foregoing observations, in considering whether a receiver should be appointed or not, the following considerations are therefore relevant:

(a) where the appointment is necessary to facilitate execution of property;
(b) where the appointment is necessary for the purpose of safeguarding the property for the benefit of those who may be entitled to it;
(c) where the appointment is necessary to preserve property from some danger which threatens it;
(d) where the appointment is necessary to ascertain whether certain transactions have occurred to defeat matrimonial causes claims;
(e) where the appointment is necessary to enable the Court to expedite a proceeding before it;
(f) where the appointment is necessary to enable the Court to avail itself of relevant evidence;
(g) where the appointment is necessary to enable a company to continue to operate; and,
(h) where the appointment appears to the Court to be just and convenient.

(footnotes omitted)

24. Also of interest is commentary concerning Rule 26.1 of the Uniform Civil Procedure Rules 2005 in Ritchie’s Uniform Civil Procedure NSW:
    

26.1.5 Power to appoint receivers. This Part complements the power conferred by s 67 of the Supreme Court Act to appoint a receiver whenever it appears “just or convenient to do so”. While the discretion this confers is wide, there are settled principles that guide its exercise. It is highly relevant to the exercise of the discretion whether the property over which the appointment is to be made is already under the control or management of one of the parties. It if it is not, then the urgent appointment of a receiver may simply be a matter of necessity to preserve or manage disputed property pending the determination of the proceedings : Owen v Honan [1853] EngR 883; (1853) 4 HL Cas 997 at 1032; Leney & Sons Ltd v Callingham [1907] UKLawRpKQB 167; [1908] 1 KB 79 at 84; Searle v Smales (1855) 25 LTOS 106; Hart v Emelkirk Ltd 15, [1983] 1 WLR 1289. In other cases, where the property is already under appropriate control, particular caution may be required in the exercise of the power – because of the irreversible consequences that may follow to the defendant from the fact of the appointment : Bond Brewing Holdings v National Australia Bank Ltd [1991] VicRp 31; (1990) 1 ACSR 445 at 456. See R Meagher, D Heydon, M Leeming, Gummow and Lehane’s Equity Doctrines and Remedies 4^th ed (2002) Ch 28...

25. I am unaware of any authorities where a Court has refused to order the appointment of a receiver on the basis of the application for the appointment being an abuse of process. Of course, the National Court has power pursuant to Order 12 Rule 40 (1)(c) of the National Court Rules to order that proceedings be stayed or dismissed generally where it is satisfied that the proceedings are an abuse of the process of the Court. The categories of abuse of process are not closed. Useful commentary in respect of conduct which may be considered to be an abuse of process can be found in the joint judgment of Sakora and Kandakasi JJ in Wartoto v State [2015] SC1411 as follows:
    
    48. Another case is the decision in Andrew Nagari v. Rural Development Bank; Rural Development Bank v. Andrew Nagari... There, the National Court speaking of the powers of the District Court to deal with any abuse or improper use of the process of the District Court said:

"The Court also has the inherent jurisdiction to dismiss proceedings summarily for abuse of its process. ... The Court's power in this regard... is wide. The phrase "abuse of process" connotes that the process of the Court must be used properly and bona fide and is not to be abused. Thus, where the Court's machinery is improperly and incorrectly used, the Court has the duty to prevent such abuse of its process."

49. At the Supreme Court level, what this Court said in Anderson Agiru v. Electoral Commission and The State is relevant. There the Court said:

"... the court's inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity. Essential to these inherent powers is the court's duty to protect itself by ensuring that vexatious litigants do not abuse the court's process by instituting frivolous or vexatious suits."

50. There is also clear law that, any irregularity, defect or an abuse of process must be raised at the appropriate level. Failing that, a party can be precluded from raising such an issue belatedly and succeed...

(footnotes omitted)

26. For more recent adoption of these principles see for example Mineral Resources Development Co Ltd v Melanesian Trustee Services Ltd [2024] SC2536.
    
27. In my view the notice of motion of the first and second defendants is not an abuse of the process of the Court. Rather, I consider that a receiver should be appointed to the Goroka property in the terms sought by the first and second defendant. I so find for the following reasons.

Abuse of process

28. First, to the extent that the plaintiff claims that the first and second defendants’ notice of motion is an abuse of process, it appears that the key reasons for this contention are that:

• The plaintiff does not want the Goroka property sold, because he is planning to live in it during his retirement years.
• The plaintiff has another property – namely the Port Moresby property – which he would rather be sold to pay the judgment debts.
• The plaintiff considers that the first and second defendants were precipitate in seeking the appointment of a receiver only weeks after the orders of Kandakasi DCJ, such that the plaintiff did not have adequate time to liquidate assets to discharge the judgment debts.
• The first and second defendants’ notice of motion contravenes Order 13 Rules 22 and 29 of the National Court Rules.
  

29. None of these reasons in my view supports a claim of abuse of process of the Court.
    
30. The facts are that judgment was entered against the plaintiff in respect of his claims against the defendants, and an award of costs and interest subsequently made against him in favour of each defendant. The plaintiff is required to pay those amounts. That he has not yet sold the Port Moresby property despite his description of efforts to do so does not answer the claim of the defendants for payment of the judgment debts owed to them. That the plaintiff would prefer not to sell the Port Moresby property is not relevant to his liability to pay the defendants.
    
31. The first and second defendants relied on evidence of their property searches, and their satisfaction that the Goroka property was owned by the plaintiff, unencumbered. This evidence is uncontested. While there appeared to be some dispute between the parties at the hearing as to the ownership of the Port Moresby property, I do not consider it an abuse of the process of the Court that the first and second defendants have not sought the appointment of a receiver in respect of that property when it would be the preference of the plaintiff.
    
32. Despite the resistance of the plaintiff to the first and second defendants’ notice of motion, it appeared at the hearing that the plaintiff would not have strongly disputed an order appointing a receiver to the Port Moresby property and facilitating its sale. Any such approach would not be consistent with the plaintiff’s claim of abuse of process by the defendants.
    
33. I further note that, despite the submission of the plaintiff that the defendants have been precipitate in seeking the appointment of a receiver:
    

• The litigation was commenced by the plaintiff;
• The litigation has been in the National Court of Justice since 2009, and only now is reaching its conclusion;
• It was not disputed that the plaintiff had not paid the defendants any monies towards settlement of the judgment debts;
• There is evidence before the Court that the plaintiff has been unresponsive to communications by the defendants relating to the plaintiff’s obligation to pay the judgment debts and unco-operative in that respect (see in particular affidavit of Julian Kasuk filed 16 April 2024); and
• It was not disputed that the plaintiff had in the region of K100,000 in an account, but had taken no steps to pay in whole or in part that sum to the defendants.

34. Ultimately, the fact that the making of orders sought by the first and second defendants would inconvenience the plaintiff does not make their notice of motion an abuse of process of the Court.
    
35. I am further satisfied that the plaintiff’s contention that the defendants’ notice of motion fails to comply with Order 13 of the National Court Rules is without merit. Order 13 Rule 22 of the National Court Rules provides:
    

22. Separate execution for costs
When –
(a) there is a judgement for the payment of money and for the payment of costs (whether the judgment is for any other matter or not); and
(b) when the money (other than costs) becomes payable under the judgement – the costs have not become payable (because the costs have not been taxed or for any other reason),
a person entitled to enforce the judgement may –
(c) have execution to enforce payment of the money (other than costs); and
(d) when the costs become payable – have execution separately to enforce payment of the costs.

36. In the present case there is no scope for “separate execution for costs”. The defendants’ application for the appointment of a receiver is an enforcement proceeding in respect of the only issue between the parties following the judgment of Cannings J, namely the judgment debt arising from costs orders made by Kandakasi DCJ against the plaintiff. There is no judgment for the payment of money within the scope of the Rule, other than payment of the costs and interest owing. No separate orders were made for, for example, an award of damages to the defendants which constituted an order for the payment of money separate from that of costs, such that the Rule would be enlivened.
    
37. Similarly, the plaintiff at paragraph 4 of his affidavit filed 23 April 2024 noted paragraph 6 of the orders of Kandakasi DCJ of 22 November 2023, where his Honour ordered that the proceeding is concluded and the court file closed and archived forthwith subject to any enforcement proceedings. The orders of Kandakasi DCJ which closed and archived the proceeding were made subject to any enforcement proceedings. The defendants’ application for a receiver to be appointed in order for the judgment debts to be satisfied is an enforcement proceeding, thus the filing of the motion cannot be an abuse of process for non-compliance with His Honour’s orders.
    
38. The notice of motion of the plaintiff is dismissed, with costs.

Application for appointment of receiver

39. This outcome does not, of course, automatically mean that the first and second defendants are entitled to the orders they seek for the appointment of a receiver. The making of such orders requires the exercise of discretion by the Court, in the terms previously discussed.
    
40. Turning to those principles however, I am satisfied that the orders sought should be made, commencing with the appointment of Mr Pini as receiver, for the following reasons.
    
41. First, I consider that it is in the interests of justice that a receiver be appointed to the Goroka property, to facilitate the sale of the property to satisfy the judgment debts owing by the plaintiff to the defendants. Despite the evidence of the plaintiff that he has been endeavouring to sell the Port Moresby property to provide the funds to discharge the judgment debts, as he conceded in his affidavit, and as his Counsel conceded in submissions before the Court, to date the plaintiff has been unsuccessful in selling the Port Moresby property. As the defendants submitted, the Goroka property is in the plaintiff’s name, and unencumbered. It is not unreasonable that a receiver be appointed in respect of the Goroka property, to arrange for its sale to pay the debts owed by the plaintiff to the defendants.
    
42. Second, I note that there has been at least one instance of orders being made granting an extension of time to the plaintiff to sell property to discharge the judgment debts. I noted earlier in this judgment that Kandakasi DCJ made orders on 22 November 2023 quantifying the costs and interest payable. Orders were subsequently made on 14 March 2024 by Kandakasi DCJ adjourning the notices of motion to the end of April 2024, to permit the plaintiff time to expedite the sale of his property to satisfy the judgment debts. The first defendant submitted before me that the defendants consented to those orders being made. Despite this, the plaintiff has not liquidated assets to pay the judgment debts.
    
43. Third, despite the submissions of the plaintiff concerning his ownership of other properties, in particular the Port Moresby property, there was no real evidence of genuine efforts on the part of the plaintiff to pay the judgment debts. There is no evidence of the plaintiff offering to pay monies towards the discharge of the debts, from liquid funds under his control such as the K100,000.00 in his bank account to which he deposes in his affidavit filed 23 April 2024. While the plaintiff deposed as to his efforts to sell the Port Moresby property, there is no evidence that the plaintiff had offered, for example, any other financial arrangement to the defendants referable to the sale of the Port Moresby property to facilitate the discharge of the judgment debts. I understood from submissions made at the hearing that the plaintiff would not have strongly objected to the appointment of a receiver in respect of the Port Moresby property. Unfortunately, such a concession would be late, and not supported by evidence of value or absence of encumbrances in respect of the Port Moresby property. The appointment of a receiver to the Goroka property, in respect of which there is plain evidence of its unencumbered ownership by the plaintiff, is just and convenient to expedite the orders of the Court.
    
44. Fourth, I note the affidavit of Mr Andrew Pini filed 1 February 2024 in which Mr Pini deposed, inter alia:

• He is an insured registered company auditor public accountant and liquidator; and
• He agreed to be appointed as receiver to the Goroka property.
  

45. The appointment of a receiver to private property of an individual is a serious matter. I am satisfied that it is desirable to appoint an appropriately qualified independent person such as a registered liquidator, to act as receiver in such circumstances : see Makins v Percy Ibotson & Sons [1890] UKLawRpCh 134; [1891] 1 Ch 133. I am satisfied that Mr Pini is appropriately qualified and independent to perform that role.
    
46. Fifth, I am further satisfied that, because of Mr Pini’s qualifications and independence, it is unnecessary to order security to be paid, and that it is appropriate for me to order that security need not be given by him pursuant to Order 14 Rule 18 (1) of the National Court Rules. I particularly note the following comments of de Jersey CJ in Pelerman v Pelerman [1998] QSC 21 where his Honour considered an application to appoint a receiver:
    

As to whether the proposed receivers be required to give security, I am prepared to relieve them from the requirement to give security, as not infrequently results from a proposed receiver as being an official liquidator (as in the case of one of the proposed appointees here) experienced in this field of work and reasonably expected to act with the competence and independence characteristic of an officer of the Court. Compare O'Donovan: Company Receivers and Managers, para 18.670 note 2.
(emphasis added)

47. Sixth, while there is no evidence before the Court suggesting risk that the plaintiff would take steps to prevent his property being available to discharge his judgment debts to the defendants, the fact that he has not made any payments to the defendants is at the very least suggestive that he is reluctant to do so. The events involving Mr Julian Kasuk when Mr Kasuk sought to serve process on the plaintiff is further suggestive of reluctance of the plaintiff to discharge the judgment debts. In the circumstances, I consider it appropriate that an order appointing a receiver should be made to ensure that the substantial amounts owing by the plaintiff to the defendants are duly paid. The assurances of the plaintiff in, for example, his affidavit filed 12 March 2024, that he intends to pay the judgment debts owing to the defendants are not sufficiently persuasive to prevent orders being made in the terms sought by the defendants.
    
48. Seventh, the first and second defendants have sought that the receiver be granted powers pursuant to Order 14 Rule 22 of the National Court Rules to perform his functions, and further that the plaintiff be required to co-operate with the Receiver in terms contemplated by Order 14 Rule 22 and Order 12 Rule 1 of the National Court Rules. In my view it is appropriate that the Court make such orders to permit the proper discharge by the receiver of his duties in that role.
    
49. Eighth, the first and second defendants have sought an order that the receiver be entitled to remuneration, being his fees and expenses of his appointment, paid out of the proceeds of the sale of the property in priority to the judgment debts. Such an order is orthodox in circumstances where a receiver is appointed: see for example the detailed discussion of relevant principles in such cases as Ronald John Dean-Willcocks & v Nothintoohard Pty Limited (In Liquidation [2006] NSWCA 311 and Shirlaw v Taylor [1991] FCA 415; (1991) 31 FCR 222.
    
50. Finally, the first and second defendants sought an order that their costs of and incidental to the Notice of Motion be paid from the proceeds of sale of the Goroka property. I am satisfied that costs ought follow the event. It is not unreasonable that the costs of the defendants be payable in the terms they seek.
    

THE COURT ORDERS THAT:

1. The Notice of Motion filed by the plaintiff on 23 April 2024 is dismissed, with the plaintiff to pay the costs of the first and second defendants of and incidental to that Notice of Motion on a party-party basis.
2. Pursuant to Order 13 Rule 2(1)(d) of the National Court Rules, Andrew Pini of Pini Accountants and Advisors care of Allotment 1 Section 14. Reke Street (PO Box 6070), Boroko, National Capital District, Papua New Guinea is appointed as Receiver of the plaintiff’s land at Allotment 2, Section 6, Goroka, Eastern Highlands Province contained in State Lease Volume 21 Folio 234 (the Property).
3. Pursuant to Order 14 Rule 22 of the National Court Rules, the powers of the Receiver shall be and include the following:
   • (a) demand and recover from the plaintiff, by action or otherwise, the original title document of the Property and all documents that relate to the Property which are in the possession of or under the control of the plaintiff;
   • (b) exercise, on behalf of the plaintiff, a right to inspect and obtain copies of documents or original documents that relate to the Property and in the possession or under the control of a person other than the plaintiff;
   • (c) secure and take possession of the Property by action or otherwise;
   • (d) obtain by private sale or public tender the best selling price reasonably obtainable as at the time of sale of the Property;
   • (e) execute in the name of and on behalf of the plaintiff a Contract for Sale of Land that relates to the sale of the Property and all documents necessary or incidents to the sale of the Property;
   • (f) apply the proceeds of the sale of the Property to satisfy the first and second defendants' respective Judgments made on 22 November 2023 and incidental costs.
4. Pursuant to Order 14 Rule 22 and or Order 12 Rule 1 of the National Court Rules and the inherent jurisdiction of the Court under section 155(4) of the Constitution, the plaintiff shall:
   • (a) make available to the Receiver all documents and information relating to the Property in the plaintiff’s possession or under the plaintiff’s control;
   • (b) where required to do so by the Receiver, verify, by statutory declaration, that the documents and information are complete and correct; and
   • (c) give the Receiver such assistance as he may reasonably require.
5. Pursuant to Order 1 Rule 7, Order 12 Rule 1 and Order 14 Rule 18(1) and (2) of the National Court Rules, the requirement for the Receiver to give security is dispensed with.
6. The Receiver shall be entitled to remuneration on a time basis according to the time spent by himself and his staff at the rates normally charged from time to time for work of the type performed by Pini Accountants and Advisors. The Receiver's fees and expenses of his appointment are to be paid out of the proceeds of the sale of the Property in priority to the Judgments made on 22 November 2023.
7. The First and Second Defendants' costs of and incidental to this application shall be paid out from the proceeds of the sale of the Property on a party-party basis.
8. The time for entry of these orders be abridged to the date of this order.
9. The time for entry of these orders be abridged to the time of settlement by the Registrar, which shall take place forthwith.
   

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Centurion Lawyers: Lawyers for Plaintiff
Dentons PNG: Lawyers for First Defendant
Ashurst PNG: Lawyers for Second Defendant