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BSP Financial Group Ltd v Kair Engineering Ltd [2025] PGSC 89; SC2788 (28 October 2025)

SC2788

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 71 OF 2024

BETWEEN
BSP FINANCIAL GROUP LIMITED
First Appellant

JIWAKA PROVINCIAL GOVERNMENT
Second Appellant

ELECTORAL COMMISSION
Third Appellant

AND
KAIR ENGINEERING LIMITED
Respondent

WAIGANI: COLLIER J, ANIS J, KAUMI J
28 OCTOBER 2025

SUBSTANTIVE APPEAL – Notice of Appeal setting aside garnishee orders – judgment entered against second and third appellants for breach of contract – second and third appellants did not satisfy judgment debt – respondent sought leave to issue and serve garnishee proceedings against Provincial Government bank account – primary Judge issued garnishee orders to garnish Provincial Government account – no transcript annexed to appeal book – garnishee order circumstances unclear – Court cannot hear appeal without reasons of primary Judge before it – judgment debt not in dispute – nothing remaining to be remedied – as general rule Supreme Court not an advisory body – Section 11(2) and (3) of Interpretation Act – appeal dismissed.

The first appellant, a financial institution, argued that garnishee orders made against the Jiwaka Provincial Government’s account should be set aside as it was not the correct method to enforce judgment debt from a government body. The first appellant did not dispute the judgment debt or seek refund orders. The first appellant argued it would set a bad precedent allowing a government body’s bank account to be garnisheed. No transcript was provided from the listing during which the garnishee orders were made.

Held
The circumstances in which the garnishee orders were made are unclear as no transcript has been provided. It is not possible for the Court to hear an appeal from a decision of a Judge of the National Court without knowing the reasons. The judgment debt has been satisfied and the appellants do not seek refund of these moneys. Therefore there is nothing remaining to be remedied and no cause of action. Further, this Court does not sit to give advisory opinions in this type of case. The notice of appeal was not filed out of time. The appeal should be dismissed.

Cases cited
Chefs Secret Limited v National Capital District Commission [2011] N4217
Ginson Goheyu Saonu v Bob Dadae (2004) SC763
Karaie v Kalandi [2024] SC2695
Noah v Kimas [2022] SC2341
Reservation Pursuant to Section 15 of the Supreme Court Act (2001) SC672
Special Reference Pursuant to Constitution, Section 19 by Enga Provincial Executive [2022] SC2271

Counsel
Ms R Kot, for the first appellant
Mr M Yawip, for the respondent

Ex Tempore Ruling

1. BY THE COURT: Before the Court is a Notice of Appeal filed on 24 June 2024 by the first appellant, BSP Financial Group Limited (BSP). The Notice of Appeal seeks to set aside orders of the National Court of Justice for leave made on 17 April 2024, and garnishee orders made by that Court on 15 May 2024, in WS 1320 of 2013. The first appellant relied on two grounds of appeal:
   
   • (1) The trial Judge erred in law and fact when granting leave to the respondent to issue a garnishee notice and further granting a Garnishee Order Absolute to garnish the Government’s revenue.
   • (2) The trial Judge erred in law by breaching his Honour’s duty under s 158(2) of the Constitution of the Independent State of Papua New Guinea 1975 to give paramount consideration to the dispensation of justice in interpreting the law.
     
2. In the Notice of Appeal, the first appellant sought the following orders:
   
   • (1) The appeal hereby be allowed.
   • (2) The orders of 17 April 2024 and 15 May 2024 be quashed.
   • (3) Costs be awarded to the first appellant.
   • (4) The name of the primary judge is His Honour Justice Liosi.
   • (5) A transcript is not required.
     
3. At the hearing Counsel for the first appellant informed the Court that her client was not pressing Orders (4) and (5) as sought in the Notice of Appeal.

BACKGROUND

4. In 2012, the second appellant, the Jiwaka Provincial Government (the Provincial Government) engaged Kair Engineering Limited (respondent) to renovate a building for use as a country centre for the 2012 National Elections. The respondent completed the work but did not receive any payment.
   
5. On 18 November 2013, the respondent filed a Writ of Summons in the National Court against the Provincial Government, the Electoral Commission, and the State, seeking payment for the work completed in 2012.
   
6. On 15 July 2014, the National Court entered judgment in favour of the respondent for K488,184.20. On 30 January 2018, the Certificate of Judgment was issued and endorsed by the Registrar.
   
7. Throughout 2014-2021, the respondent repeatedly sought payment from the Provincial Government, including by serving the judgment and sending follow-up letters and demands.
   
8. On 24 May 2021, the respondent filed contempt proceedings against the Provincial Administrator and Governor for failure to pay the judgment debt, but these proceedings were not pursued.
   
9. On 23 January 2024, the respondent filed a Notice of Motion seeking leave to issue and serve garnishee proceedings against the bank account of the Provincial Government held with BSP.
10. On 17 April 2024, the National Court granted leave to issue a Garnishee Notice. On 8 May 2024, the Garnishee Notice was served on BSP.
    
11. On 15 May 2024, the National Court made a Garnishee Order Absolute in the following terms:

GARNISHEE ORDER ABSOLUTE
UPON HEARING Counsel for the Plaintiff /Judgment Creditor and upon reading the Garnishee Notice issued by LEAVE of this court on the 17th April 2024.

1. Pursuant to Order 13 Rule 56, 57 and 61 of the National Court Rules, the Garnishee, Bank of South Pacific do pay the Plaintiff/Judgment Creditor from the monies accruing due out from the account of First Defendant/Judgment debtor with interest and cost as specified herein being at K888,731.50 Amount specified;
   1. Judgment Debt of this Court Order dated 15th day of July 2014 in the sum of K 488,184.20
   2. Statutory interest at 8% per annum on the above Judgment debt of K488,184.20 from date of filing of the Writ of Summons to the Date of the order being 15th July 2014 calculated in the sum of K 39, 054.73.
   100. Interest accumulated from the date of Judgment 15th July 2014 to the date of this application in the number of 10 years in the sum of K351, 492.57
   4. Cost of this garnishee proceedings reasonably claimed at Kl0,000.00

Total K888,731.50

2. The Garnishee namely Bank of South Pacific pursuant to the Garnishee Notice pay the Judgment Debt inclusive of interest and cost within fourtheen [sic] (14) days from the reciept [sic] of this order to the Trust Account of Yawip & Company Lawyers as follows:

Account Name: ...
Account No : ...
Bank South Pacific Limited Kundiawa

3. Time for entry of Order be abridged to the time of settlement by the

Registrar which shall take place forthwith; and [sic]

12. On 23 May 2024, the garnished funds were transferred as ordered.
    
13. On 24 June 2024, the appellants filed this Notice of Appeal.

SUBMISSIONS

14. Consent orders were made in this matter on 6 August 2025 requiring the parties to file submissions by close of business on 10 October 2025.
    
15. The first appellant filed written submissions.
    
16. We note that the submissions of the Provincial Government were filed after the date agreed in the consent orders of 6 August 2025, and in those circumstances we decline to have regard to them.
    
17. The respondent did not file any written submissions as ordered. At the hearing Mr Yawip for the respondent sought leave to hand up written submissions, having informed the Court that his client was unable to file written submissions in time because of “internet issues”. Given that the consent orders were made on 6 August 2025 giving the parties more than two months to file written submissions, we consider the explanation for failure to file written submissions within time to be unacceptable and we declined to receive those written submissions.

BSP’s Submissions

18. BSP submitted that the following issues were relevant for determination by the Court when having regard to the two grounds of appeal, namely:
    
    • (1) Whether the term “State” in Section 13(1) of the Claims Act includes Jiwaka Provincial Government, for the purposes of any suit, execution or attachment or a process in the nature of execution, or attachment against it;
    • (2) Whether, the second appellant, Jiwaka Provincial Government is protected by Section 13 of the Claims Act from execution against the State; and
    • (3) If so, whether the trial Court failed to give paramount consideration to the dispensation of justice in interpreting the law, in this case, Section 13 (1) of the Claims Act when it was apparent that a provincial government’s bank account was to be garnished by the Respondent contrary to Section 158 (1) of the Constitution
    • (4) Whether the trial court erred in ordering garnisheeing of the Second Appellant’s bank account in the orders of 15^th May 2024 held with the First Appellant.

Ground 1: The term ‘State’ under s 13(1) of the Claims Act includes the Provincial Government

19. In relation to this ground, BSP submitted, inter alia:
    

• The Provincial Government is one of three arms of government of the Independent State of Papua New Guinea under the Constitution for the purposes of s 13(1) of the Claims By and Against the State Act 1966 (Claims Act).
• The Supreme Court determined that the term “State” includes Provincial Governments, for the purposes of s 13(1) of the Claims Act: The Supreme Court also affirmed that the phrase “government body”, as used in schedule 1.2(1) of the Constitution includes ‘provincial government’ and that same concept applies to the term “State” under the Claims Act.
• The Supreme Court held that the protection under s 13 of the Claims Act does not apply to assets and finances of developmental enterprises of provincial governments that have independent corporate statuses and operate commercially: Reservation Pursuant to Section 15 of the Supreme Court Act (2001) SC672. This does not apply in this case.
• The view that “State” includes provincial governments is one which has been adopted in many later, more recent decisions.
• The public monies of the Provincial Government which were debited into the respondent’s bank account were earmarked for specific projects within the province. Such funds are public funds for specific projects and therefore cannot be earmarked for any judgment debt.
• Section 13(1) of the Claims Act protects public funds from being subject to execution via garnishee and as such, the primary Judge erred in granting the garnishee orders. The correct manner by which judgment debt can be executed is outlined in s 14 of the Claims Act.

Ground 2: The primary Judge breached s 158(2) of the Constitution by ordering a provincial government’s bank account to be garnisheed

20. In relation to this ground, BSP submitted, inter alia:
    • The trial Court failed to caution itself with the mandatory provision of s 13(1) of the Claims Act by making the garnishee orders. Such a failure is still an error even if the respondent failed to disclose the requirements of s 13(1) to the primary Judge.
    • Under s 158(2) of the Constitution, the Courts are constitutionally obligated to interpret a law and ensure that all legal and factual issues (whether or not they have been raised by the parties) are adequately addressed to ensure the dispensation of justice.
    • The Court has previously outlined that the duty to interpret a law to ensure the dispensation of justice is not just a guiding principle, but rather a binding mandate: Ginson Goheyu Saonu v Bob Dadae (2004) SC763.
    • The Court has discretion to strike out proceedings on its own motion in circumstances where s 5 of the Claims Act has not been complied with: Chefs Secret Limited v National Capital District Commission [2011] N4217.
    • The primary Judge therefore erred in not invoking its inherent jurisdiction to dismiss the entire garnishee proceedings at the leave stages and the subsequent orders.
    • Upholding the orders as they currently stand would set a bad precedent for future, similar proceedings.

CONSIDERATION

21. The circumstances in which either the orders of 17 April 2024, or the Garnishee Order Absolute, were made by the National Court, are unclear. The appellants have not annexed a copy of any transcript of hearings when the relevant orders were sought and made.
    
22. The Appeal Book fails to meet the requirements of Order 7 Rule 43 (13) of the Supreme Court Rules 2012. The absence of transcript in respect of either hearing or set of orders in the Appeal Book is, in our view, fatal to the appeal.
    
23. In so finding, we note as a general proposition that it is not possible for this Court to hear an “appeal” from a decision of a Judge of the National Court of Justice without understanding the reasons for the primary decision. For instance, the first appellant contended in written submissions that the trial Court failed to caution itself with the mandatory provision of s 13(1) of the Claims Act, however in the absence of the transcript we plainly cannot be satisfied of this one way or the other.
    
24. The first appellant applied to this Court for adjournment to enable the Appeal Book to be amended, however this application was opposed by the respondent. No reasonable arguments were put to this Court to support an application for adjournment, and the application for adjournment was refused.
    
25. Insofar as we can ascertain, it is not in dispute that the Provincial Government was indebted to the respondent in the amount garnisheed, being the judgment debt of K488,184.20 plus interest and costs. Those monies have been paid to the respondent, and the appellants do not seek refund of those monies. In those circumstances, there is nothing remaining to be remedied. Rather, the appellants simply appear to be expressing dissatisfaction with the manner in which payment was made to the respondent. Such dissatisfaction does not give rise to any reasonable cause of action, nor would the making of the orders sought by the appellants serve any practical utility.
    
26. The appellants further submitted that the refusal to make the orders they sought would set an undesirable precedent. That submission cannot be accepted. As the Supreme Court recently observed in Karaie v Kalandi [2024] SC2695 at [16] this Court does not sit to give, in this type of case, advisory opinions, much less to consider and determine any later challenge to orders (contrast Special Reference Pursuant to Constitution, Section 19 by Enga Provincial Executive [2022] SC2271 at [21]).
    
27. Finally, we note an affidavit sworn by Mr Yawip for the respondent was filed on behalf of the respondent on 21 October 2025 giving evidence to the effect that the Notice of Appeal was filed by the appellants 1 day out of time. Section 17 of the Supreme Court Act 1975 (Chapter 37) provides:
    

17 Time for appealing under Division 2.
Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of the judgement in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.

28. The Garnishee Orders Absolute were made on 15 May 2024. It appears that the 40^th day after that date was 23 June 2024, which fell on a Sunday. The Notice of Appeal was filed on 24 June 2024, which fell on a Monday. Section 11(2) and (3) of the Interpretation Act 1975 provides:
    

(2) If the last day of a period prescribed or allowed by a statutory provision for the doing of an act falls on a Sunday or a public holiday, the act may be done on the day next following that is not a Sunday or public holiday.
(3) Where a statutory provision directs or allows an act or proceeding to be done or taken on a certain day, then if that day happens to be a Sunday or public holiday the act or proceeding shall be considered as done or taken in due time if it is done or taken on the day next following that is not a Sunday or public holiday.

(see for example Noah v Kimas [2022] SC2341 at [15])

29. Mr Yawip directed the attention of the Court to s 11(4) of the Interpretation Act, however that section is not relevant in this case, and further s 11(2) and (3) are not to be read as subject to s 11(4).
    
30. In the circumstances we are not satisfied that the Notice of Appeal was filed out of time, or for that reason alone incompetent.
    
31. Ultimately however we are satisfied that the appeal should be dismissed. In circumstances where there has been no active participation by the other appellants, the costs of the respondent should be paid by the first appellant.
    

32. The Court orders that:

(1) The first appellant’s application for adjournment of the proceedings be refused.
(2) The appeal be dismissed.
(3) The costs of the respondent of and incidental to the appeal be paid by the first appellant, such costs to be taxed if not otherwise agreed.

Lawyers for first appellant: AvRoss & Co. Lawyers
Lawyers for respondent: Yawip & Co. Lawyers