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Goundar v Naidu [2022] FJHC 19; HBC258.2020 (20 January 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 258 of 2020

BETWEEN:
SUBARMANI GOUNDAR of 506 Waimanu Road, Suva, Fiji, Businessman.
PLAINTIFF

AND:

SUBARMANI NAIDU as the administrator of the estate of YALLAMMA YOGA WATI NAIDU aka YALLAMMA YOGA WATI aka YOGA WATI YALLAMMA of Nadi, Fiji.
DEFENDANT

BEFORE:

Hon. Mr Justice Vishwa Datt Sharma

COUNSEL:
Mr.Naidu R. for the Plaintiff
No Appearance for the Defendant

Date of Ruling:
Thursday, 20^th January 2022 @ 9-30 am.

DECISION

[Indemnity Costs pursuant to Order 62 rule 7 (4) of the High Court Rules, 1988]

INTRODUCTION

[1] On the Plaintiff’s Ex-Parte notice of motion together with the Affidavit in Support filed on 09^th December 2020, the Plaintiff was granted amongst other Orders, costs on an indemnity basis.

[2] The Plaintiff now seeks to recover the costs from the Defendant that he had incurred in these proceedings. The Plaintiff furnished Court with written submissions.

Background Facts

[3] Judgment by consent was granted for the Plaintiff in the sum of $40,000 inclusive of costs and interest on 01^st February 2016, in the Magistrates Court Civil Action No. 223 of 2014.

[4] The above judgment sum remained wholly unsatisfied by the Defendant.

[5] The Plaintiff filed an Originating Summons in the High Court vide Civil Action No. 258 of 2020 and sought for the following orders:-

(i) An Order that the Consent Judgment in Civil Action No. 223 of 2014, in the Magistrates Court at Suva Entered and Sealed on the 26 day of February 2018 be removed into the High Court and that judgment be entered in the High Court for the sum of $40,000 due under the said judgment of the Magistrates Court.

(ii) An Order for costs against the defendant on an indemnity basis.

(iii) Further or other reliefs.

[6] Removal of the order for Consent Judgment awarded on 26 February 2018 in the Magistrates Court Civil Action No. 223 of 2014 into the High Court and in the sum of $40,000 due under the said judgment of the Magistrates Court.

[7] Costs against the Defendant on an indemnity basis.

On the Grounds:

[8] That the Plaintiff is a judgment creditor.

[9] The Judgment obtained in the Magistrates Court at Suva in Civil Action No. 223 of 2014 remains wholly unsatisfied.

[10] The Plaintiff seeks to remove the judgment into the High Court and enforce the judgment.

Determination

[11] The Plaintiff applied for an award of indemnity costs from the Defendant that he incurred in these proceedings.

[12] The Writ was issued against the Defendant, Yallama Yoga Wati Naidu (now deceased) on 22^nd December 2014.

[13] The deceased took demise on 26^th September 2015. On 16^th September 2016, Subarmani Naidu was substituted as the Defendant in these proceeding.

[14] The Plaintiff caused the judgment to be registered against the Certificate of Title No. 23094 twice on 31 October 2019 and 19 August 2020 respectively.

[15] A Writ of FIFA was filed against the Deceased’s estate on 20^th April 2020. However, the Sheriff returned with a Nulla Bona result.

[16] On 27^th August 2020, the Plaintiff filed the Originating Summons proceedings for an order to remove the Magistrates Court Judgment into the High Court for enforcement purposes. This application was made pursuant to the High Court (Removal of Judgments) Rules and Section 35 of the Magistrates Courts Act, Cap. 14. An order was made on the Originating Summons on 19^th October 2020.

[17] Thereafter, the Plaintiff filed an application for a charging order on 09^th December 2020. On 17^th December 2020, an order to show cause (amongst other orders) was granted against the defendant. An Order for costs was also made. Cost was granted on an indemnity basis.

[18] The Defendant then made 2 payments totalling $40,800. On 18^th January 2021, Naidu Lawyers received payment of $40,500 by a trust account cheque from Elite Law on behalf of the defendant. On 10^th February 2021, the defendant made a deposit of $300 into the trust account of Naidu Lawyers.

[19] The Plaintiff has been in Court since 2014 trying to recover the judgment sum entered by consent and to no avail, thereby incurring additional expenses.

[20] It will be noted from the file records that this Court granted the orders on the Plaintiff’s Ex-Parte Summons for Charging Order on the Land of the Deceased, Yallama Yoga Wati Naidu comprised in Certificate of Title No. 23094 being Lot 11 on DP 70 do stand charged with the payment of $40,800 due under the said Order.

[21] The Defendant was on the order of the court to appear before the High Court on 25^th February 2021 to show cause why the Deceased’s Estate of Yallama Yoga Wati Naidu was or has interests in the said land comprised in Certificate of Title No. 23094 should not be applied to satisfy the judgment debt together with indemnity costs.

[22] Still, the Defendant Subarmani Naidu failed to appear in Court and show cause as was required of him to do so. The general rule is that costs are awarded on a party and party basis.

[23] The award of costs is discretionary. The court has an absolute and unfettered discretion to award or not to award costs. That discretion is to be exercised with reason and justice. Factors that will justify an award of increased costs include the urgency and complexity of the matter and the conduct of the unsuccessful party.

[24] Although discretionary, costs must be necessarily awarded on principle. Judicial discretion is regulated by the principle of doing justice to the parties in each particular case, the court having regard to the particular circumstances including the evidence adduced, the parties conduct and the ultimate result.

[25] The courts have time and again said that justice and fairness and indeed established principle requires that, except in special cases, a wholly successful party receive his costs, for to deny such a party costs is to deny justice. Reference is made to Oshlack v Richmond River Council, [1998] HCA 11; (1998) 193 CLR 72 (at p.79) per McHugh J.

[26] The Plaintiff has furnished Court with evidence of the costs incurred by him in these proceedings in terms of the Bill of Costs and submitted the following-

‘This case has certainly cost the plaintiff considerable time and money. The plaintiff has incurred legal fee in the sum of $7,465.75 since 5 March 2018, i.e. after the consent judgment was obtained. We have not taken into consideration costs incurred by the plaintiff in legal fees prior to 5 March 2018 i.e. between 22 December 2014 to 1 February 2018. We attach bill of costs dated 3 November 2020, 4 November 2020 and 22 February 2021. We submit a discounted sum of $6,000.00 costs be awarded against the defendant after taking into consideration $800.00 which the defendant has already paid in costs.’

‘The plaintiff had to file various applications to compel the defendant to pay the judgment debt. The plaintiff has been put to additional and unnecessary expense for which the defendant is responsible. It is submitted that the fixing of a gross sum is just and appropriate in this case.’

[27] Order 62 rule 7 (4) of the High Court (Amendment) Rules, 1988 empowers a court to award a gross sum in lieu of taxed costs. The main purpose behind the power to award a gross sum instead is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation.

Reference is made to -In Frank R Eggers Junior v Blue Shield (Pacific) Insurance Ltd. Suva High Court Civil Action No. HBC 0094 of 1997L his Justice Gates (as he then was) discussed several cases where the court made an award of a gross sum in lieu of taxed costs.

[28] I am satisfied that in the given circumstances of these proceedings, including the unsatisfactory conduct of the Defendant as one of the major factor that demands that the Defendant pay a sum of $4,800 as indemnity costs to the Plaintiff forthwith.

[29] This will ensure and avoid any continued litigation between the parties on the issue of costs and expense respectively,

ORDERS

[1] The Defendant to pay the Plaintiff a sum of $4,800 as indemnity costs forthwith.

[2] A copy of this order to be remitted to the Senior Court Officer, Magistrate’s Court Civil for record purposes within Civil Cause No. 223 of 2014 accordingly.

Dated at Suva this Thursday 20^th January 2022.

VISHWA DATT SHARMA
JUDGE
SUVA

cc: Naidu Lawyers, Suva.
Subarmani Naidu, Nadi.