Chand v Hussein [2009] FJHC 286; Civil Action 17.2007 (14 October 2009)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No: 17 of 2007

BETWEEN:

DAVENDRA CHAND
son of Branna of Waiqili, Labasa.
PLAINTIFF

AND:

JAKIR HUSSEIN
of Fiji Sugar Corporation,
Labasa, Electrician.
1st DEFENDANT

AND:

FIJI SUGAR CORPORATION
a limited liability company having its registered office
at Western House, Lautoka.
2nd DEFENDANT.

Before: Master Robinson. H.

Counsel: Mr. A Ram for the Defendant and
Mr. S Prasad for the Plaintiff.

Date of Hearing: 30 September 2009.
Date of Decision: 14 October 2009.

DECISION

INTRODUCTION

I have before me an application for Security for Costs by the Defendant filed in accordance with Order 23 rule 1 of the High Court Rules. The Defendants through their counsel seeks the sum of $5,000:00 as security for costs. The application is based upon Order 23 rule 1 (1) (a), (c) and (d) of the High Court Rules.

CONSIDERATION OF THE APPLICATION.

Order 23 rule 1 (1) (a), (c) and (d) states:-

1). "Where, on the application of a defendant to an action or other proceeding in the High Court, it appears to the Court-

(a) that the plaintiff is ordinarily resident out of the jurisdiction, or

(b. ....

(c) subject to paragraph (2) that the Plaintiff’s address is not stated in the writ or other originating process or is incorrectly stated therein, or

(d). that the Plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of the litigation

then if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the plaintiff to give such security for the defendant's costs of the action or other proceeding as it thinks just".

Paragraph (2) of Order 23 rule 1 states;-

2). "The Court shall not require the Plaintiff to give such security by reason only of paragraph 1(c) if he satisfies the Court that the failure to state his address or misstatement thereof was made innocently and without intention to deceive".

In support of his summons the defendant filed an affidavit sworn on the 29 January 2009. The Plaintiff counsel in opposition to the application filed an affidavit by one of its clerks, which was sworn on the 27 February 2009. I do not wish to delve into the possible implications of solicitor’s clerks swearing affidavits on behalf of clients except as to say that personal knowledge of the facts by the deponent is a necessary ingredient.

The Defendant states that when the course of action began the Plaintiff was then residing at Waiqili in Labasa. He was then employed by the 2nd Defendant. He resigned sometimes in January 2008 and now resides in New Zealand. The affidavit in support states that enquiries made confirm that the Plaintiff’s family, also reside in New Zealand. The actual address in New Zealand is not known and has not been changed in any of the Court documents filed since. This fact is further confirmed by the affidavit in reply, in particular paragraph 6 which confirms that the Plaintiff is currently on a work permit and lives there with his family. The Defendant further submits that although the affidavit in reply stating that he has a fixed and proper address in New Zealand (paragraph11), none was provided. Not even the Counsel for the Plaintiff was able to enlighten the court of the actual address of his client.

The Defendant’s concern is that if they succeed in defending the matter and are awarded costs, then the costs of recovering it would exceed the ordered cost itself.

In relation to whether the Plaintiff has any assets in this jurisdiction the Defendants submits that there are no indications from the affidavit in reply that the Plaintiff has any assets such as to enable an order for costs to be attached or to be realized from. Paragraph 12 of the affidavit in reply simply says that they have no knowledge whether the Plaintiff has any asset in Fiji or not but that he is a citizen of Fiji and that his relative including his parents live in Fiji.

In relation to whether or not the Plaintiff is evading the consequences of the litigation, the Defendant’s counsel submits that the affidavit in reply is evasive about the Plaintiff’s address

The Defendants are of the view that the sum of $5,000:00 is sufficient amount of security for costs.

In reply Mr. Prasad stated that he has filed an affidavit and that he relies on it. He confirms that he does not know whether the Plaintiff has any assets in Fiji and that in any event he feels that if any security for costs be given it should not be more than $2,000:00.

The early common law practice is not to order security for costs against a Plaintiff ordinarily resident outside of the jurisdiction because the view then was that to grant security in such a case would clog the course of justice; Bosewell v Irish (1767) 4 Burr 2105. Within a short period of time this view changed and the court started to award security in cases where the Plaintiff was ordinarily resident outside of the jurisdiction; Pray- v – Eddie (1786)1. Term Rep 267. The Defendant has no choice but to defend an action against him and the law regards him more favourably but as the "white book" says "only slightly". Hence the Court’s discretionary power to order a plaintiff to give security for his/her opponent’s costs is not at large and an application for security for costs should not be used as a sword.

The first thing to determine is whether it appears to the Court that the Plaintiff is ordinarily resident outside of the jurisdiction, sufficient to satisfy the requirement of Order 23 rule 1 (1) (a).

The onus is on the Defendant to prove that the Plaintiff is "ordinarily resident" outside of the jurisdiction and the issue is one of fact and degree. The 1999 edition of the White Book, paragraph 23/3/4 page 430 states:-

"...The question is one of fact and degree, it does not depend on the duration of the residence, but upon the way in which a man’s life is usually ordered, and it contrasts with occasional or temporary resident (see Levene –v- I.R.C. [1928] UKHL 1; (1928) A.C. 217 and Lysaght –v- I.R.C. (1928) A.C. 234) ...

In R. v. London Borough of Barnet, ex p. Shah (1983) 2 A.C. 309; (1983) 1 All E.R. 226, HL, it was held that in the context of the Education Acts, the phrase "ordinarily resident" should be construed according to its ordinary and natural meaning, and that a person is ordinarily resident in a place if he habitually resides lawfully in such place from choice and for a settled purpose, apart from temporary or occasional absences, even if his permanent residence or "real home" is elsewhere." (emphasis added)

It is not in dispute that the Plaintiff now resides in New Zealand and that he left Fiji after the action commenced. The Plaintiff’s affidavit in opposition (paras. 6, 7 & 8) confirms the Defendant’s submission that the Plaintiff resides in New Zealand. Further that such residence was from choice and for a settled purpose, in this instance for employment purposes.

The Defendant further submits that under Order 23 rule 1 (1) (c) where the Plaintiff’s address is not stated on the writ or other originating process or is incorrectly stated therein an order for security for costs can be made.

At the commencement of the proceedings the Plaintiff’s address was stated as "Waiqili, Labasa". After resigning from work he moved to New Zealand and despite having contacted his Solicitors did not provide them with an address for contact purposes. The Court can safely assume that the address is now incorrectly stated on the writ. Can the Plaintiff then be saved by the proviso in paragraph (b) that the failure to provide his address or misstatement thereof was made innocently without intention to deceive? No evidence was provided by the Plaintiff to enlighten the Court in this regard. The onus is on the plaintiff to prove that this was the case. The fact that the Plaintiff could not provide his solicitors with his address in spite of being away for over twelve months may make the Court arrive at that conclusion. However, the only conclusion that the Court could make is that the address is incorrectly stated on the writ. This, together with the fact that the Plaintiff now resides outside of the jurisdiction is sufficient for the Court to make an order for security for costs under order 23.

No evidence was put forward by the Plaintiff to enable the Court to determine whether he has realizable assets within the jurisdiction sufficient for the Court can conclude that no order for security for costs should be granted. The Defendants submission is that as the Plaintiff did not disclose any assets here, let alone realisable assets which can be made subject to the process of the court, and therefore order for security for costs should be given. The Defendant referred to the case of Babu Bhai Patel –v- Manohan Aluminium Glass Fiji Limited Suva High Court Civil Action No:. HBC 19/19 (14 November 1997) in which Justice Fatiaki in referring to the general principle, and citing from Reddro v. Chaytor (1879) 40 LT 97 said that:-

"...If a Plaintiff, who is permanently residence out of the jurisdiction, has property within jurisdiction which can be made subject to the process of the court, in such a case the reason of the rule being drawn, the rule given away, and the court will not order security to be given..."

Having assets in itself is insufficient to exclude an order for security for costs, assets has to be readily converted to pay for the costs. At the other end of the scale, insolvency and poverty is no ground for security for costs; (Cowell –v- Taylor [1885] UKLawRpCh 237; (1885) 31 Ch.D. 34), neither should an application for security for costs be used oppressively so as to stifle a genuine claim.

I am satisfied from the submissions made by the Defendant’s counsel and what could be adduced from the Plaintiff’s counsel’s submission that security for costs should be awarded.

The amount to be paid as security for costs is at the discretion of the Court which will fix such sum as it thinks just. The Defendant submits that the sum of $5000:00 should be sufficient to cover his costs and the Plaintiff submits that $2000:00 would be more realistic. Halsbury’s Law of England (4th Edition) vol. 37 para. 307 states in part:-

"It is not the practice to order security for cost on a full party and party, still less on an indemnity basis. In the case of a Plaintiff resident out of the jurisdiction the more conventional approach is to fix the sum at about two thirds of the estimated party and party costs up to the stage of the proceedings for which security is ordered, but there is no hard fast rule".

The proceedings is at the stage where upon filing and issue of the copy of pleadings the matter can be set down for hearing, so it is at the very late stage and close to finality.

CONCLUSION

Having considered all the matters raised by both counsels, I conclude that the application for security for costs should be allowed. Whilst the Plaintiff is entitled to pursue his claim and may at the end be successful the Defendant is equally entitled to security for costs under the circumstances. Given the stage of the proceedings and the formulae set out above I fix and order the Plaintiff to pay security for costs to the sum of $2000:00, which is to be deposited in court within 28 days. That upon the payment of the said security for costs, the matter will be put before me to fix a hearing date and for which purpose this action is adjourned to 16 November 2009.

Accordingly so ordered.

H.A. ROBINSON
MASTER