IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No.: HBC 560 of 2005

BETWEEN:

CREDIT CORPORATION (FIJI) LIMITED
Plaintiff

AND:

CA’BELLA PACIFIC CONSTRUCTION
(FIJI) LIMITED
First Defendant

AND:

YAUKUVE ISLAND RESORT LIMITED
Second Defendant

Ms P. Wong-Maharaj for Plaintiff
Mr. D. Sharma for Second Defendant

Date of Hearing: 16th April 2008
Date of Ruling: 9th May 2008

RULING ON COSTS

On the day of the hearing this action was withdrawn by the plaintiff against the second defendant. The plaintiff had earlier obtained default judgment against the first defendant. The reason provided by Counsel for withdrawing the action was that if believed that the general damages awarded would be such that it was not worth pursuing the matter further.

Both parties had pleaded for indemnity costs in their pleadings. However that does not necessarily mean that indemnity costs will be ordered. The plaintiff was a Bill of Sale holder from the first defendant. It had advanced certain sums of moneys under a Bill of Sale which covered certain machinery. The first defendant had entered into a building agreement with the second defendant and taken few of the items covered by the Bill of Sale to an island owned by the second defendant. The first and second defendants had certain differences arising out of that contract and the second defendant took possession of a couple of items covered by the Bill of Sale. The two items I believe were released after the plaintiff had obtained an order from the court on 20th January 2006.

The plaintiff’s action is neither frivolous or oppressive, reprehensible or was utterly without merit. A Bill of Sale holder upon default is entitled to take possession of chattels covered by the Bill of Sale.

Order 62 of the High Court (Amendment) Rules 1998 governs the court’s jurisdiction to award costs. Order 11 Rule 12 provides that a court may allow costs on the standard basis or indemnity basis. Where the order is silent as to basis of costs then its costs are to be calculated on standard basis. The rules also provide for summary assessment of costs called a gross sum in lieu of costs by the court instead of costs being taxed: Order 62 Rule 7(4). This option has the advantage of being expeditious. It also saves time of the litigants and their counsels and of the taxing master.

Indemnity costs are awarded in exceptional cases. A comprehensive ruling on costs as to when indemnity costs are awarded are contained in Eggers Junior v. Blueshield (Pacific) Insurance Ltd. – HBC 94 of 1997 (Lautoka). I do not consider that the plaintiff’s conduct in withdrawing the action at the last hour for reason advanced is deserving of moral condemnation. This is not a proper case for indemnity costs.

I therefore order that the second defendant is only entitled to standard costs. The parties, if they cannot agree to costs, can have them taxed by the Deputy Registrar Legal on standard basis.

[Jiten Singh]
JUDGE

At Suva
9th May 2008