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Rali v Kipe [2024] PGNC 433; N11106 (4 December 2024)

N11106

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 429 OF 2012

AMOS W RALI
Plaintiff

V

EZEKIEL KIPE
First Defendant

JOHN KIPE
Second Defendant

Waigani: Kariko, J
2024: 19th November and 4th December

JUDGMENTS AND ORDERS – enforcement of judgment - plaintiff obtained default judgment for damages – unsuccessful in seeking enforcement of judgement by writs of possession and levy of property – application for substituted performance under O13 r8(1)(a) National Court Rules – seeking transfer of property – judgement did not order transfer – elements of substituted performance

The plaintiff obtained default judgment against the defendants for total damages plus interest and costs. After failed attempts in enforcement proceedings using writs of possession and levy of property in conjunction with the Sheriff’s Office, the plaintiff applied for substituted performance, to have title to the Sheriff’s Office arrange for the first defendant’s property transferred to him.

Held:

(1) The processes to enforce a court order for payment of money (not payment into court), are those specified under O13 r2(1) National Court Rules.

(2) The elements of substituted performance under O13 r8(1) National Court Rules are:

(a) a judgment that requires a person to do an act; and
(b) that person does not do the act; then
(c) the court may appoint another person to do that act.

Cases Cited:
Rueben v Jack (2020) N8326

Counsel:
J Goma, for the Plaintiff
No appearance, for the Defendants

4th December 2024

1. KARIKO, J: On 21 March 2016, the plaintiff obtained default judgment against the defendants effectively for total damages of K210,480.00 plus interest at 8% pa and costs.
   
2. The judgment sum is yet to be fully settled, and the plaintiff seeks enforcement of the judgment by substituted performance pursuant to O13 r8(1) of the National Court Rules. Order 12 rule 1 was also cited in the notice of motion as jurisdictional basis for the motion.
   

BACKGROUND

3. After obtaining judgement, the plaintiff filed several enforcement proceedings over the years but with unsuccessful outcomes, leading to this application:
   
   • (1) On 31 August 2016, a writ of levy of property was granted but it was not executed by the Sheriff ‘s Office before the writ lapsed.
   • (2) On advice by the Sheriff’s Office, a writ of possession was applied for and granted 5 November 2018, but that writ was not properly executed by the Sheriff’s Office.
     
   • (3) Again, on advice of the Sheriff’s Office, another writ of levy of property was applied for and granted on 19 June 2020. Pursuant to the writ, the Sheriff’s Office seized property (Allotment 19 Section 39 Mendi) owned by the first defendant, but then agreed for him to remain on the property pending finalization of the auction sale of the property.
     
   • (4) An auction took place on 9 December 2020 but was regarded as failed because the offers were well below the judgement sum.
     
   • (5) Another auction was held on 9 December 2021 but again with the same result.
     
   • (6) Following advice from the Sherif’s Office, another writ of levy of property was applied for and granted on 28 April 2023.
     
   • (7) A caveat was registered over the property.
     
   • (8) Frustrated by the several years of unsuccessfully seeking to have the judgement debt settled, the plaintiff suggested to the Sheriff in March and in June 2024 to take steps to have the title to the property transferred to the plaintiff in full settlement of the judgement debt.
     
   • (9) After a Deputy Sheriff visited the property in August and informed the second defendant of the plaintiff’s suggestion, the plaintiff received payment of K273,787.25 through the Sheriff’s Trust Account in September 2024.
     
   • (10) Searches revealed the payment was made by one of several companies owned by the first defendant.
   • (11) The present motion was filed on 13 September 2024.
     

SUBMISSIONS

4. The application is grounded on frustration – that the plaintiff has not been able to enjoy the fruits of a judgement in his favour despite his keen efforts to lawfully have the judgement settled.
   
5. The plaintiff asked the Court to direct the Sheriff, who now has custody of the property, to arrange for its title to be transferred and registered in his favour.
   
6. The plaintiff would thereby accept the transfer as full and final settlement of the judgement debt.
   

CONSIDERATION

7. Order 12 rule 1 is a general provision that allows the National Court to give judgement or make order as the nature of the case requires at any stage of any proceedings. I do not consider this Rule relevant to this application.
   
8. Order 13 rule 8 states (underlining added):
   

8. Substituted performance

(1) Where a judgment or order requires the person bound to do an act and the person bound does not do the act, the Court may-

(a) direct that the act be done by a person appointed by the Court; and

(b) order the person bound to pay the costs incurred pursuant to the directions.

(2) Sub-rule (1) does not affect-

(a) any other powers of the Court relating to the execution of instruments by orderof the Court; or

(b) the powers of the Court to punish for contempt.

9. In Rueben v Jack (2020) N8326, I considered the application of O13 r8. After noting that there were no case authorities from this jurisdiction on point, I referred to Australian cases and observed:
   

16. I rely on the Australian cases for persuasive value only. Interestingly, the cases on substituted performance do not concern judgements for the payment of money. I believe this is because there are other more appropriate courses for the enforcement of such judgements, namely the means of enforcement similar to those found in O13 r2(1) National Court Rules.....

(a) levy of property;

(b) attachment of debts (garnishee);

(c) charging order;

(d) appointment of a receiver; and

(e) committal and sequestration.

17. It is my opinion that the processes to enforce a court order for payment of money (not payment into court), are those specified under

O13r2(1).

10. The elements of substituted performance under O13 r 8(1) are:
    
    • (a) judgment or order that requires a person to do an act; and
    • (b) that person does not do the act; then
    • (c) the court may appoint another person to do that act.
      
11. The judgement or order of the Court given on 26 March 2016 did not require the transfer of title to the property to the plaintiff. The first element is therefore lacking.
    
12. The plaintiff has properly pursued settlement using writs of possession and levy of property. It seems to me that the Sheriff’s Office may not have diligently executed the writs. Since the first defendant is said to own several businesses, they may be earning income for that defendant, and he may have personal bank accounts. Consideration could be given to investigating the possibility of garnishee action. These courses are available pursuant to O13 r2(1) and are still open to the plaintiff.
    
13. Another option the plaintiff might consider pursuing to enforce the judgment is issuing contempt proceedings against the defendants for non-compliance with the order of to make payment.
    
14. Regarding the current application though, it must be refused.

________________________________________________________________
Jopo Lawyers: Lawyers for the Plaintiff