|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATUCIVIL JURISDICTION
CIVIL CASE No. 151 OF 1996
ALIGN="CENTER">BETW>BETWEEN:
Mr NICK RUSSO and Mrs CAROL RUSSO
of 37 Studley Road, Iv Victoria, Australia.
Plaintiffs/Defendants in the Counter-ClaimAND:
INTERNATIONAL FINANCE TRUST COMPANY LIMITED
of C/- Moore Stephens, Moore Stephens House, Kumul Highway, Port Vila,
Efate in the Republic of Vanuatu.
Defendant/Plaintiff in the Counter-Claimp ALIGN="CENTER">JER">JUDGMENT AS TO COSTS
The Defendants have been successful in the action. The only remaininge to be determined is that of costs.
Mr. Hurley tendered a Written offer ffer "without prejudice except as to costs" (a Calderbank letter type) dated 13th November 1996. The written offer was made by the Defendants Mr & Mrs Russo via their solicitor the then Garry Blake of George Vasaris & Co. In the offer, they advise the Plaintiff that they are prepared to pay the total sum of A$3,000 in respect of two fee notes in question, in full and final settlement of all claims between IFTCL and themselves. They also reserve their rights to tender a copy of this letter to the Court at the conclusion of the hearing on the subject of costs.
On that basis, it is submitted the Defendants are entitled to costs including travel expenses and foreign counsels expenses and that the costs be calculated on indemnity basis.
Further it is requested that an amount of US$7,500 paid into Court for security for costs on 6th December 1996 be released.
Mr Ozols contended for the Plaintiff Company that the Calderbank offer is not relevant since it was made prior to the commencement of the action. Further he stressed that this litigation is commenced by the Defendants Russo and not by IFTCL.
As to costs, he submits there is no reason why the usual order as to costs cannot be made and be taxed or agreed.
It is argued for the Plaintiff/IFTCL that there is nothing exceptional for the Russo’s solicitors costs when they are the one who started the action. Any claim by Russo must be properly claimed with a proper course of action disclosed. Mr Ozols submitted he would ask that no order be made as to costs for a period of 7 days so that he could obtain further instructions.
He also opposes an award of costs for the Defendants travel expenses.
This is a case in which the Defendants Russo by a written offer of 13 November 1996 to the Plaintiff, desire to avoid the payment of costs at the trial of the counterclaim action should they be unsuccessful. The offer in the form of Calderbank letter "without prejudice except as to costs" have been made before the action commenced, with regards to the payments of costs in the sum of A$3,000 which is substantial and covers the substantial part of the costs to which the Plaintiff may be entitled to at the trial.
The Plaintiff refuses the offer and insists on proceedings with his action after the Defendants have, before the Writ issued, offered all that could be obtained on such an action.
In the circumstance of this case, I form the view that the offer has been proper for acceptance and it is refused.
The Defendants will be relieved from payment of costs incurred after the date of the offer, that is as from 13 November 1996.
As to the amount of US$7,500 paid into Court for security for costs, it would also be released but be stayed for few days.
ORDER
The formal order of the Court is as follows:
1. The Plaintiff/IFTCL shall pay to the Defendants costs incurred to toceedings after 13 November 1996.
2. T>2. The Plaintiff/IFTCL shall pay the Defendants travel expenses incurred in respect to the action.
3. The costs shall be calculated on indemnity basis.
4. The amount of US$7,500 paid into Court on 6th December 1996 for security for costs be released.
5. That order 4 be stayed for 10 days as from today, 30th September 1998.
Dated at Port Virt Vila, this 30th day of September 1998.
Vincent LUNABEK
A Chief Justice
PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/vu/cases/VUSC/1998/61.html