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B. D. Lakshman & Sons Properties Ltd v Winstone Aggregates (Fiji) Ltd [2015] FJHC 248; HBC296.2013 (15 April 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No.: HBC 296 of 2013

BETWEEN:

B. D. LAKSHMAN & SONS PROPERTIES LTD a limited company having its registered office at Deuba, Fiji
PLAINTIFF

AND:

WINSTONE AGGREGATES (FIJI) LTD a limited liability company having its registered office in Suva, Fiji
1st DEFENDANT

AND:

PASTORAL COMPANY (FIJI) LTD a limited liability company having its registered office at Raiwaqa, Navua
2nd DEFENDANT

Counsel : Mr. Vinit Singh for the Plaintiff
Mr. P. Sharma for the Second Defendant

Date of Hearing : 28th of October, 2014,
Date of Ruling : 15th of April 2015,

RULING

Introduction.

1. The Second Defendant (hereinafter referred as the Defendant) filed this application for taxation of cost pursuant to the order made by Justice Mutunayagam on 29th of November 2013.
   

Background

2. The Plaintiff instituted this action by way of a writ of summons against the first and second defendants. However, on 29th of November 2013, the Plaintiff withdrew their claim against the 2nd Defendant. Justice Mutunayagam ordered the cost against the Plaintiff. His lordship further directed that the cost to be taxed if not agreed upon by the parties. Having failed to reach to an agreement for cost, the Defendant filed this application for taxation of cost.
   
3. Having satisfied that the Defendant filed this application within the stipulated time under order 62 r 29 (1), the court issued notice to the Plaintiff and set this application for hearing on the 28th of October 2014. The learned counsel for the Defendant and the Plaintiff made their respective oral submissions during the cause of the hearing. The counsel of the Defendant tendered his written submissions at the conclusion of the hearing. Having considered the bill of cost and respective submissions of the parties, I now proceed with my ruling as follows.
   
4. The learned counsel for the Defendant submitted in his submissions that the Defendant is entitled for indemnity cost as the Plaintiff was informed at the beginning of the proceedings that they have sued a wrong party. The learned counsel for the Plaintiff objected the bill of cost filed by the Defendant on the ground of excessiveness.
   
5. Order 62 rule 3 states that;
   

" Where the court makes an order for costs without indicating the basis of taxation or an order that costs be taxed on basis other than the standard basis or the indemnity basis, the costs shall be taxed on the standard basis".

6. It appears that the order of Justice Mutunayagam made on 29th of November 2013 has not specified the basis of the taxation of cost. Hence the basis of taxation of this application is the standard basis.
   
7. Order 62 r 12 (1) has provided the basis for taxation, where it states that;
   

" On a taxation of costs on the standard basis there shall be allowed a reasonable amount in respect of all costs reasonably incurred and any doubts which the taxing officer may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved in favour of the paying party; and in these rules the term " the standard basis" in relation to the taxation of costs shall be construed accordingly".

8. Having considered Order 62 r 13 and the submissions of the parties, I award following cost in respect of the bill of cost filed by the 2nd Defendant.
   

9. In my conclusion, I award sum of $ 1,735 as taxed cost to be paid by the Plaintiff to the Defendant within 21 days of this Ruling.
   

Dated at Suva this 15th day of April, 2015.

R.D.R. Thushara Rajasinghe
Master of High Court, Suva