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Wakaya Ltd v Nusbaum [2013] FJMC 89; Civil Action 86.2011 (20 February 2013)

IN THE MAGISTRATE’S COURT
AT SUVA
CENTRAL DIVISION
FIJI ISLANDS

Civil Action No. 86 of 2011

Between :

Wakaya Limited
Plaintiff

And:

Marsha Nusbaum
Defendant

Before: Mr. Chaitanya Lakshman
Resident Magistrate

Appearance:
For the Plaintiff: Mr K. Singh (Jamnadas & Associates)
For the Defendant: Mr W. Hiuare (HM Lawyers)

Ruling – Indemnity Costs

1). Introduction
This Court on 10 September 2012 ruled that the Defendant is entitled to Indemnity costs. Parties were given to reach an agreement on costs. But none eventuated. This Court has now been tasked with deciding on costs.

2). The Law
In Prasad v Divisional Engineer Northern (No 2) [2008] FJHC 234; HBJ03.2007 (25 September 2008), Justice Scutt, cited the following:

“Principles governing the award of indemnity costs are set out in a number of authorities.

General principles include:

• A court has ‘absolute and unfettered’ discretion vis-à-vis the award of costs but discretion ‘must be exercised judicially’: Trade Practices Commission v. Nicholas Enterprises (1979) 28 ALR 201, at 207

• The question is always ‘whether the facts and circumstances of the case in question warrant making an order for payment of costs other than by reference to party and party’: Colgate-Palmolive Company v. Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225, at 234, per Sheppard, J. ........

• ‘... neither considerations of hardship to the successful party nor the over-optimism of an unsuccessful opponent would by themselves justify an award beyond party and party costs. But additional costs may be called for if there has been reprehensible conduct by the party liable’: State v. The Police Service Commission; Ex parte Beniamino Naviveli (Judicial Review 29/94; CA Appeal No. 52/95, 19 August 1996), at 6

• Usually, party/party costs are awarded, with indemnity costs awarded only ‘where there are exceptional reasons for doing so’: Colgate-Palmolive Co. v. Cussons Pty Ltd at 232-34; Bowen Jones v. Bowen Jones [1986] 3 All ER 163; Re Malley SM; Ex parte Gardner []2001] WASCA 83; SDS Corporation Ltd v. Pasonnay Pty Ltd & Anor [2004] WASC 26 (S2) (23 July 2004), at 16, per Roberts-Smith, J."

3). Analysis
Having noted the Law and concession by the Plaintiff that it had filed 2 similar actions before this current action was discontinued the Court had found that the Defendant was entitled to indemnity costs.

The Court had noted that the $3000.00 being claimed by the Defendant was a generalized sum and had not been itemized and had sought that the Defendant submit a proper bill for the work involved in this case to claim the indemnity costs. The Plaintiffs in their submission stated that $500.00 would be appropriate costs.

This Court has perused all the documents filed and the submissions made. The Defendant has submitted a Bill of Cost which has not provided a broken down list of each task performed and the costs. The Defendants Firm has provided a list of work stating it took 23 hours which is multiplied at the rate of $120/ hour and the disbursements cost of $240.00 which all add up to $3000.00.
This Court would like to highlight that in the absence full details and breakdowns of each task, the time it took for each task, and other related details it is very difficult for this Court to completely rely on the bill of cost provided.

The Court has noted the initiation date of the case, the date the Plaintiff's informed the Defendants of its intention to withdraw the case, together with the amount of work that would have ensued in the period and the Court attendances. This Court further notes that the Costs will ultimately be borne by the clients of the Legal Firms. For the foregoing reason it should be paramount that cases that can be resolved within a reasonable time do not drag on this long as it increases the clients costs and un-necessarily increase the financial burden.

Having perused all the issues this Court finds that an appropriate indemnity costs, which is now being determined by this Court in the absence of fully itemized bill of cost with breakdown of individual tasks and related cost would be $1450.00, which is broken down as $1250.00 ($120/ hour for about 10.4 hours) being fees and $200 as disbursements. This sum is to be paid by the Plaintiff within 14 days.

4). Orders

The Court Orders as follows:

(a) Plaintiff to pay the Defendant a sum of $1450.00 as Indemnity Costs with 14 days.

Chaitanya Lakshman
RESIDENT MAGISTRATE

20/02/2013