Strickland v Teariki [2012] CKLC 7; Application 10.2010 (6 September 2012)

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

APPLICATION NO. 10/2010

IN THE MATTER of Section 390A of the Cook Islands Act 1915

AND

IN THE MATTER of the lands known as

1. AVARUA SEC. 190A1
2. AVARUA SEC. 190A2
3. TE TAORA SEC. 128D
4. TUTAKIMOA SEC. 14E
5. TAPATEA SEC. 107B1
6. TAPATEA SEC. 107B2
7. TAPATEA SEC. 223
8. PARAKO SEC. 134
AVARUA

AND

IN THE MATTER of an Application for the Chief Justice to investigate mistakes made by Chief Judge Morgan, in giving his judgment on the Emma Moetaua case on 29 May 1968 and upheld by the Appellate Court some time afterwards, no date in an appeal filed by Makeanui Teremoana Ariki

BETWEEN:

HOWARD TAIRIATA STRICKLAND, holding the title of Tairi-te-Rangi Rangatira, under Makeanui Ariki and the Tairi-te-Rangi family resident in the Cook Islands, Tahiti and New Zealand
(Applicants)

AND

1. TAUPINI JOHN TEARIKI
2. OTENIERA JOHN TEARIKI
3. TEREEMI JOHN TEARIKI
4. RIMATUTOKO TERAI JOHN TEARIKI
5. JOHN JOHN TEARIKI
6. VAIORA JOHN TEARIKI
(Respondents)

Counsel: Mr George for Applicants

Mrs Browne for Respondents

Submissions: Various dates

Hearing: 27 August 2012

Judgment: 6 September 2012

JUDGMENT OF THE CHIEF JUSTICE AS TO COSTS

[1] On 28 August 2012 I released my judgment dismissing the applicant's s 390A application.

[2] The application had raised significant issues for the respondents and they have had to reply to a wide range of allegations. Fraud was alleged and moreover it was said that that fraud occurred as long ago as 1874. Some parts of the application were disorganised and not entirely easy to follow. However when closely examined it became clear that the application raised essentially the same issues as had been considered by this Court or the Court of Appeal previously. Those allegations had been rejected on past occasions.

[3] The judgment concluded at paragraph 45 as follows:

[45] The respondents, having prevailed, are entitled to costs. In the circumstances, I indicate a readiness to entertain indemnity costs. I invite counsel to address on that basis. Mrs Browne shfile her submissioissions within fourteen days of receipt of this Judgment and Mr George fourteen days thereafter. Such submissions should be limited to no more than five pages. Anything beyont will not be read.

[4] Mrs Browne filed a memorandum of counsel on behalf of the respondents on 31 August. In that memorandum she sought indemnity costs in the sum of $3,898.13. As a matter of first impressions that appears to be an entirely modest claim in respect of what was quite a body of work. No doubt counsel for the respondents has been able to handle the matter efficiently due to previous encounters with the subject matter of this application.

[5] Mrs Browne emphasised:

• Mr George had previously recognised that an application under s 390A would be difficult to sustain.
  
• That in earlier rounds in this litigation I had warned that the s 390A application would probably fail but the applicant had persisted nonetheless.
  
• That there had been multiple failed challenges in the past and this application did not raise any new issues.
  
• Overall the application was wholly without merit.
  

[6] Mr George responded.

[7] Indemnity costs are only awarded rarely. There are a range of instances that will act as a trigger. A failed fraud application can be such a trigger. Moreover, if an application wholly lacks merit that may justify indemnity costs. There is no one rule that covers all instances. Nevertheless, an application for indemnity costs faces a high threshold.

[8] I believe this is a case where indemnity costs are justified. I have been influenced in that view by the fact that the total costs claimed are modest out of proportion to the significant work required in relation to the application.

[9] I award costs in favour of the respondent of $3,898.13.

___________________________
Tom Weston
Chief Justice

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