IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 214 of 2001L

BETWEEN :

CHUNG TAT SING oF Nadi, Businessman
Plaintiff

AND:

PRADUMAN RANIGA
father's name Mohan Lal of Nadi, Businessman.
1st Defendant

AND:

MOHAN LAL & COMPANY 
a limited liability company having its registered office at Sahu Khan Street, Nadi.
2nd Defendant

FINAL JUDGMENT

Judgment of : Ms. Dias Wickramasinghe J.

Counsel : Mr K. Vuataki for the Plaintiff
 Mr Hari Ram for the Defendants

Solicitors : Vuataki Laws for the Plaintiff
Rams Laws for the Defendants

Date of Judgment : 27 May 2011
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Keywords: Indemnity Costs	

INTRODUCTION

[1]	This is an application for costs by the plaintiff on indemnity basis. The plaintiff filed the Affidavit in Support for indemnity costs of Sitiveni Nukuse dated 13 May 2011. The first defendant filed his reply by affidavit dated 19 May 2011.

BACKGROUND FACTS

[2]	The parties settled the substantive action and on 30 September 2010, a Consent Order was sealed. (Consent Order). The Consent Order required the second defendant inter alia to execute a Memorandum of Easement for the right-of-way and register it after obtaining the consent of Native Land Trust Board (NLTB). The Memorandum of Easement had to be executed on or before 21 October 2010.

[3]	A letter was written by the plaintiff's counsel on 17 December 2010 requesting an update of the execution. Since there was no reply, a notice of intention to initiate court proceedings was sent on 19 January 2011.

[4]	When there was no response to either of the letters, the plaintiff filed committal papers on 17 February 2011. The defendant gave nine undertakings in the Consent Order. Considering that only the aforesaid undertaking was in issue, I ordered the motion to be served inter-parte. Accordingly, the matter was called before me on 24 February 2011, where the defendants' counsel Mr Ram informed that the Memorandum would be executed and handed over to Mr Vuataki that weekend. The case was thereafter called before me on 28 February 2011 and Mr Ram confirmed that the Memorandum was executed. Mr Vuataki informed court that he would await until the Memorandum was registered to take a decision on his committal application. The case was thereafter mentioned before me on three occasions. On 6 May 2011, the defendant informed Court that the Memorandum of Easement was registered on 18 April 2010 and the 'easement slip' was handed over to the plaintiff on 21 April 2011. The plaintiff informed court that he is not pursuing his application for committal but moved for costs on indemnity basis.

[5]	The plaintiff states that he had to unnecessarily incur legal and other expenses, which he assesses at $7000.00, merely because the second defendant failed to fulfill his undertakings, which were consented to by him. 

[6]	The plaintiff therefore moves for costs on an indemnity basis. I therefore ordered the parties to file their Costs by 13 May 2011 and written submissions by 20 May 2011, which was filed. 

[7]	The affidavit of the first defendant did not offer any reasons for non-compliance of the Consent Order within the agreed period or explained any difficulty that the second defendant had faced, if any, for the delay. The defendant simply states that he believed that the solicitors were in regular communication with each other. The defendants also states that the plaintiff's motion for a committal is defective as it failed to comply with the mandatory requirements stipulated in O. 52 of the High Court Rules, 1988.

LEGAL MATRIX

[8]	Order 62 r 37 of the High Court Rules empower Courts to award indemnity costs at its discretion.

[9]	In the case of Prasad v Divisional Engineer Northern [2008] FJHC 234, Scutt J examined various cases on payment of costs and held that costs are awarded at the discretion of a trial judge, generally on 'party and party' basis; court must consider whether the facts and circumstances of the case in hand justify costs to be paid other than on 'party and party basis'; even if particular facts and circumstances warrant an award for costs on an indemnity basis, it does not necessarily compel a trial judge to award such costs.

[10]	The plaintiff in his submissions drew the attention of the court to Lok v Singh [2010] FJHC 7 (20 January 2010), where I find that the aforesaid principles were upheld. 

[11]	Let me now examine whether the circumstances of the instant case warrant this Court to depart from the usual course and award costs on an indemnity basis. 

[12]	Had the defendant complied with their undertaking as consented to in the Consent Order, no doubt that the plaintiff would not have had to initiate committal proceedings. The consent order is an Order of the Court, thus a breach thereof is a serious matter and the court could not treat it lightly. 

[13]	I am also unable to accept the reasons given by the defendants that they believed that the solicitors of each other were in regular communication. If so, when the plaintiff wrote both letters, the defendants should have taken a more proactive role to ensure that the Memorandum of Easement was executed. I am also unable to accept that the plaintiff's motion for a committal is defective firstly, as the defendant never filed any documents in court, secondly, the matter was never argued or determined.

[14]	Due to the indolence of the defendant, even the court had to unnecessarily spare valuable time on an application, which could have been easily avoided. I am convinced that in the interests of justice require this Court to award costs on an indemnity basis against the defendant. 

[15]	The Plaintiff states that his claim for costs of $7000.00 includes legal fees of $5000.00 and his expenses of $2000.00 that the plaintiff claims to have incurred for travel between Nadi and Lautoka, loss of business management time, meeting and telephone calls with his counsel. The plaintiff had annexed to his affidavit a receipt of $2000 issued by Mr Vuataki's office and states that the balance sum of $3000 is now due after the lodgment of the Easement. The Easement was registered on 18 April 2011 and its slip was handed over on 21 April 2011. The affidavit in support for costs was filed only on 13 May 2011. The plaintiff had sufficient time to attach proof of the balance legal fees. Plaintiff does not attach any proof for his expenses of the claim of $2000. Having considered the plaintiff's documents filed before me and the fact that the case was called before me five times, I summarily assess the plaintiff costs as $1500. 

[16]	Accordingly, the defendants should pay a total sum of $3500.00 as Costs to the plaintiff on an indemnity basis. 

ORDERS

1.	The defendants to pay a total sum of $3500.00 as costs to the plaintiff on or before 7 June 2011. 

……………………………………………………
Ms Dilrukshi Dias Wickramasinghe
Judge