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Metai v Drake - Addendum [2000] WSSC 55 (24 November 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

ALI'IMALEMANU IAO METAI
of 2 Craig Road, Milford, Auckland.
Plaintiff

AND

RUBY DRAKE AND MURRAY DRAKE,
Partners of Drake & Co., Barristers and Solicitors,
Level Two, Chandra House, Convent Street, Apia, Samoa.
Defendants

Counsel: O. Woodroffe for plaintiff
R. Drake for defendant

Judgment: 24 November 2000

ADDENDUM OF SAPOLU CJ TO JUDGMENT DELIVERED ON 2 NOVEMBER 2000

This is an addendum to my judgment delivered on 2 November 2000 on the defendant's application for security for costs under rule 30 of the Supreme Court (Civil Procedure) Rules 1980 in respect of the plaintiff's claim against them.

In my judgment of 2 November 2000, I expressed my views on the inability of the plaintiff to pay costs if his claim is unsuccessful, the unsatisfactory nature of the offer by the plaintiff's wife to pay costs on the plaintiff's behalf: the weakness in the merits of the plaintiff's claim, and the absence of material to show that it was the defendants alleged failure to act which caused the plaintiff's impecuniosity. I also mentioned in my judgment that the costs to the defendants for enforcing in New Zealand any judgment for costs against the plaintiff if his claim is unsuccessful, will be far from minimal or insignificant.

The plaintiff was then ordered to produce within 10 days to the Court copies of the medical reports on the treatments he received in New Zealand. The purpose for this is in order to see whether there is a causal connection between the alleged breaches of the duty of care in tort and in contract and the alleged breach of fiduciary duty by the defendants and the damage the plaintiff said he has suffered. The Court further indicated that if the medical reports are not produced as ordered, the Court will go ahead and make a decision on the defendants motion for security. No medical reports have been received from the plaintiff. I now give my final judgment.

The defendants gave an estimate of their costs if this case goes to trial to be about NZ$40,000 and sought security for NZ$20,000 or its equivalent in Samoan currency. In my judgment security in the sum of NZ$8,000 or its equivalent in Samoan currency would be appropriate.

I therefore make the following orders:

(a) The plaintiff is ordered to deposit with the Registrar of this Court the sum of NZ$8,000 or its equivalent in Samoan currency as security for costs.

(b) Proceedings are stayed until security for costs has been deposited with Registrar.

For the purpose of the application for security proceedings, I award to the defendant $750 costs.

CHIEF JUSTICE

Solicitors:
Woodroffe Law Partnership for plaintiff
Drake & Co., for defendants