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Tupou v Saulala [2004] TongaLawRp 55; [2004] Tonga LR 166 (17 November 2004)

IN THE SUPREME COURT OF TONGA

Tupou

v

Saulala anors

Supreme Court, Nuku'alofa
Ford J
CV 220/2001 and CV 272/2001

30 September 2004; 17 November 2004

Costs – taxation of costs – overseas counsel – not necessary

See Tupou v Saulala anors [2004] Tonga LR 158 where the facts are set out.

Costs were awarded in favour of the successful defendants in a sum which was to either be agreed or taxed. Agreement was not possible, however, and the matter was referred back to the Court for taxation of the defendants' bill of costs.

Held:

1. It was true that the plaintiff instructed senior counsel from abroad to appear and act on the interlocutory matter but that did not necessarily mean that it was reasonably necessary or proper for the defendants to follow suit. The Court found that it was not reasonably necessary or proper for the defendants to retain overseas counsel. The only costs the Court was prepared to allow were those recognised in the scale of charges prescribed in the Practice Direction.

2. The Court considered it appropriate and just to allow costs to the defendants' two counsel at the rate set out in the new scale. That saw an increase in the hourly rate allowed to Mr Stanton, as senior counsel, from $150 to $210 and, in the case of Mr Edwards, as counsel, from $100 to $140.

3. Of the total amount claimed by the defendants in the bill of costs before the court, the sum allowed upon taxation was fixed at $4,484.

4. The plaintiff succeeded in this interlocutory motion and was entitled to an award of costs in his own right. To save the parties facing a repeat taxation exercise, the Court fixed the plaintiff's costs entitlement in the sum of $1,250. The plaintiff was required to pay to the defendants' counsel the net figure of $3,234.

Cases considered:

Edwards v Kingdom of Tonga [1994] Tonga LR 62

Glaister v Amalgamated Davies Ltd [2004] 2 NZLR 606 (CA)

Hurley v Law Council of the Republic of Vanuatu [2000] VUCA 10 Jordan v Edwards [1979] PNGLR 420

Lali Media Group Ltd anors v 'Utoikamanu (unreported) C.V. 124/2003, Ward C.J. (judgment dated 19 April 2004)

OG Sanft & Sons & anor v Johnson & ors [1991] Tonga LR 1 Polynesian Airlines v Kingdom of Tonga (unreported) C. 126/97, Finnigan J. (judgment dated 19 May 2000)

Practice Direction 02/1992

Practice Direction 04/2003

Practice Direction 05/2004

Reid Minty v Taylor [2002] 2 All ER 150

Secretary of Fisheries v Lavinia [1999] Tonga LR 179 (CA)

Taimi 'o Tonga- Ruling on Costs (unreported) No. C.V. 124/03 - C.V. 219/03, judgment dated 24 May 2004 (Ward C.J.)

Tonga Development Bank v Niu (unreported) C. 231/92, judgment dated 6 November 1992