IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBA0009 OF 2003

BETWEEN:

DAYA RAM and
DHARAM RAJI
APPELLANTS

AND:

SUMITRA GOUNDAR
RESPONDENT

Mr M S Sahu Khan for the Appellant
No appearance for the Respondent

Date of Hearing:	5 July 2005
Date of Judgment:	5 July 2005

ORAL JUDGMENT OF FINNIGAN J

This is an appeal against a Magistrate’s order refusing costs.

The Respondent appears to have taken no steps and was not represented today at the hearing. I have heard the submissions of Counsel for the Appellant who has taken me through the history of the matter and I am satisfied that the Magistrate was in error in refusing an order for an indemnity costs as sought by the Appellant in the lower Court.

I accept the authority of Cooper –v- Whittingham 15 Ch D 501 as authority for the proposition that in an action to enforce a legal right where there has been no misconduct by the Plaintiff there is no discretion in the Court to refuse costs. I am satisfied by the evidence that in the lower Court there was not only no misconduct apparent on the part of the Plaintiff but the Defendant caused increased costs after admitting the debt and then prolonging the action and avoiding payment.

The appeal is allowed and the Respondent is ordered to pay the indemnity costs specified and sought in the Magistrate’s Court at $856.00. I assess costs for the Appellant on today’s hearing including disbursements on the appeal in the sum of $700.00.

D.D. Finnigan
JUDGE

At Lautoka
5 July 2005