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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No: 94 of 2004
BETWEEN:
WILLIAMS ASSOCIATES LIMITED
Plaintiff
AND:
PASTOR NAIBUKA GONEWALI,
PASTOR SANAILA SOQOVATA,
PASTOR JOSAIA TOKEA,
PASTOR EMOSI TOROCA RATAVOLA, and
REVEREND SULIASI KURULO Trustees for Fiji of the CHRISTIAN MISSION FELLOWSHIP registered under the Religious Bodies Registration Act
Defendants
Coram: Hickie J
Counsel: Mr K.F. Muaror for the Plaintiff
Ms A.K. Tavo for the Defendants
Date of Hearing: 6 March 2009
Date of Ruling: 18 March 2009
RULING ON COSTS
A. BACKGROUND
[1] The Plaintiff, WILLIAMS ASSOCIATES LIMITED, filed a Writ of Summons and Statement of Claim on 16 March 2004 which was subsequently amended on 3 March 2008 following which a defended hearing took place from 28-30 July and 4 and 14 August 2008. Judgment was handed down on 13 February 2009 with the Plaintiff being successful in having judgment awarded in their favour.
[2] This Ruling is as to the question of costs arising from the Plaintiff being successful in pursing their claim.
[3] On the question of costs, I noted in my previous judgment that the Plaintiff was seeking indemnity costs but allowed the parties time to file brief submissions which they have done so.
B. SUBMISSIONS
1. Plaintiff’s submissions
[4] At the hearing on the question of Costs, Counsel for the Plaintiff relied upon his written submissions filed on 26 February 2009 wherein he agreed that indemnity costs were not applicable, however, he was seeking a gross sum pursuant to Order 62 rule 7(4)(b) of the High Court Rules. In support of seeking a gross sum, Counsel for the Plaintiff submitted (at paragraph 2 of his submissions):
“It is relevant to observe that no defence of any substance was placed before the Court at any stage of the proceedings. The oral evidence called was disbelieved; the submissions sought to raise a matter which had not been pleaded and had no application in any event. It is a case which on any view should have been the subject of attempts by the Defendants to resolve.”
[8] As to the gross amount sought (on a party-party basis), Counsel for the Plaintiff has summarised this as follows:
| (a) 23 hours professional work @ $275 per hour | = $6,500.00 |
| (b) Trial (4 days @ $2,500.00 per day) | = $10,000.00 |
| (c) Submissions | =$2,000.00 |
| (d) Total | =$18,500.00 |
[9] Counsel for the Plaintiff also submitted that his true figure for appearance is $3,500.00 per day (not $2,500 being sought on a party-party basis) and similarly for his hourly rate.
2. Defendants’ submissions
[10] In response, Counsel for the Defendants relied upon her written submissions filed on 5 March 2009 which argue (at paragraph 5 of her submissions): “that if the Court were to agree with the submissions of the Plaintiff that costs ... be assessed pursuant to the provisions of O.62 r.7(4)(b), then ... such costs should be taxed”. Further, Counsel for the Defendants has submitted that “they had a viable defence based on their understanding of the events that had taken place at the material time” and the delay in the matter being heard “could be said to have contributed to the outcome in reaction to the Defendant’s [sic] case” such as recalling of events and a key witness had passed away. Therefore, Counsel for the Defendants has submitted that “any costs awarded should be taxed to reflect a fair outcome and the true costs incurred by the Plaintiff in pursuing its claim”.
C. CONCLUSION
1. The Law
[11] I am cognisant that if I decide not to refer the matter to taxation, then the question of awarding a gross sum must still be “reasonable” on a party-party basis as was considered Byrne J in Anderson v Salaitoga [1999] 45 FLR 241; Paclii: [1999] FJHC 104, 3 September 1999, http://www.paclii.org/fj/cases/FJHC/1999/104.html) wherein he said:
"The principles governing party and party costs are set out in the Supreme Court Practice 1976 Vol. 1 Order 62 Rule 28 (note 62/28/3)
thus:
"It is of great ieat importance to litigants who are unsuccessful that they should not be oppressed by having to pay an excessive amount of costs. The costs chargeable under a taxation between party and party are all that are necessary to enable the adverse party to conduct the litigation, and no more. Any charges merely for conducting litigation more conveniently may be called luxuries, and must be paid by the party incurring them."
[My emphasis]
[13] Although this is not a formal taxation but a summarily awarding of costs by the Court, nevertheless, the Court should allow costs on party-party costs upon what it considers to be reasonable.
2. Findings
[14] Having considered the submissions of Counsel, as well as briefly perused the brief list of costs incurred as set out by Counsel for the Plaintiff in his written submissions, I note that his fees have been charge on a party-party basis are, in my view, are not excessive. Indeed, at the hearing of the question of costs, I mentioned to Counsel for the Defendants that there was a possibility that on a full taxation, the amount awarded could be in excess of what has been submitted by Counsel for the Plaintiff noting that he has only charged for 23 hours in all up to the hearing on a party-party basis.
[15] I note that there have been 27 appearances prior to the hearing as follows:
(Ex-tempore Ruling – costs awarded against Defendants for excessive delays - in amount of $350 to be paid by 21/09/2007)
[16] Despite there have been 27 appearances as well as the preparatory work in filing the claim, an Amended Statement of claim, Pre-Trial Conference and Minutes, as well as many documents filed in listing the matter for the hearing and the preparation for hearing, Counsel for the Plaintiff is only seeking 23 hours professional work in total. In addition, Counsel is only charging on a party-party basis of $275.00 per hour not his full professional hourly fee.
[17] I further note that there were the following days of Hearing (as well as a mention on 4 August 2008):
[18] Counsel for the Plaintiff is only seeking four hearing days, rather than five hearing days and a mention. In addition, Counsel is only charging on a party-party basis of $2,500.00 per day instead of his full professional daily rate of $3,500.00.
[19] I also note that there is a fee of $2,000 on the written submissions which @ $275 per hour on a party-party basis equates to approximately 7.5 hours which also is reasonable. In addition, there was a Court attendance on the question of costs, the filing of submissions on the issue and the short hearing on 6 March 2009 for which there appears to have been no charge.
[20] Thus, if the matter went to a full taxation, Counsel for the Plaintiff would be entitled to argue (even on a conservative basis without considering much of the additional documentation on file which was necessary to have the matter proceed to final hearing) that his client is entitled to the following:
| = $1,100.00 |
| = $500.00 |
| = $7,700.00 |
| = $725.00 |
| = $500.00 |
| = $2,500.00 |
| = $12,500.00 |
| = $2,000.00 |
| = $500.00 |
| = $28,025.00 |
[21] Thus, the Court agrees that Counsel for the Plaintiff should not be put to further expense of preparing a full itemised bill and what has been provided is sufficient for the Court to allow a reasonable award of costs in the amount of $18,500.00 as sought.
3. Orders
[22] Taking into account the above, the Court orders as follows:
Thomas V Hickie
Judge
Solicitors:
Muaror & Co, Barristers & Solicitors, Suva, for the Plaintiff
Fa & Company, Barristers & Solicitors, Suva, for the Defendants
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URL: http://www.paclii.org/fj/cases/FJHC/2009/88.html