Tatuava v Cook Islands Family Welfare Association [2012] CKHC 81; Plain27.10 (30 March 2012)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

PLAINT NO. 27/10

BETWEEN:

TEVAERANGI TATUAVA
of Tupapa, Rarotonga, Occupation Unknown
Plaintiff

AND:

COOK ISLANDS FAMILY WELFARE ASSOCIATION (CIFWA)
of Avarua, Rarotonga
Defendant

Hearing: 20 March 2012
Cl: Mrb> Mr Samuel and Mr George for Plaintiff
Ms Rokoika for Defendant

Date: 30 March 2012

JUDGMENT AS TO COSTS

[1] At the conclusion of my oral judgment I stated a preliminary view that the costs of the parties should lie where the fell. This followed from the fact that although the plaintiff’s claim has substantially failed, she had been successful in part in relation to the failure of the defendant to pay her wages during the period of her suspension. Although Ms Rokoika submits that this was unpleaded the fact of the matter was that this was a live issue during the course of the hearing.

[2] Following delivery of my oral judgment I asked counsel for the defendant whether she wished to seek costs despite my provisional view. She said she did and I subsequently received a memorandum from her. In that memorandum she said actual costs were $5,630 and she attached the invoice.

[3] Bearing in mind the work undertaken by her it seems to me that this is a reasonable fee. She sought an order for costs as to $3,753.33 being two-thirds of her client’s actual costs.

[4] Mr Samuel for the plaintiff then filed a submission. In this, he argued that because the plaintiff had been successful in part she was entitled to costs. He said that actual costs were $1,500 and $1,000 was sought.

[5] Both counsel referred to offers made as between them. There seems to be some dispute as to the form of those offers and I do not think I can usefully take those into account.

[6] Notwithstanding that the defendant was substantially successful, I hold to my original view that costs should lie where they fall. Costs are ultimately at the discretion of the Court although that discretion must be exercised on a principled basis. Normally costs will be awarded in favour of the successful party but not always. In the present case, there is an argument that the plaintiff has been successful although it was only in relation to a small and unpleaded part of her claim. I do not think it is useful to analyse the claim in this way.

[7] Standing back and looking at the entire circumstances of the claim, including how the parties handled the suspension and then the termination, it seems to me the better view is that costs should lie where they fall and I so order.

__________________________
Tom Weston
Chief Justice

Editorial Note: Derived from the Court's electronic records and believed to be correct and final.