AD Enterprises Ltd v Zafar [2010] FJHC 311; Civil Action 219.2009 (13 August 2010)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 219 of 2009

BETWEEN:

A.D ENTERPRISES LIMITED
a limited liability company having its registered office at
5 Eden Street, Toorak, Suva.
Plaintiff

AND:

USHA LAL ZAFAR
(f/n Kanti Lal) of Lot 18, Nayala Subdivision, Vunimono, Nausori trading as
ISHWAR INDUSTRIES having its place of business at
59 – 63 Ratu Mara Road, Samabula, Suva.
Defendant

Before: Master Anare Tuilevuka

Counsels: Neel Shivam Lawyers for the Plaintiff
R. Patel & Company for the Defendant

Date of Hearing: 15th July 2010
Date of Ruling: 13th August 2010

RULING

INTRODUCTION

[1]. Before me is a Motion filed by the plaintiff seeking the following orders:

• (i) that the plaintiff is entitled to costs incurred in instituting proceedings against the Defendant and all matters incidental thereof on a full indemnity basis.
  
• (ii) that the plaintiff files its taxation application.
  
• (iii) that the defendant pays to the plaintiff the costs of this application.
  

[2]. The application is filed pursuant to Order 62 Rule 3(2) of the High Court Rules which states as follows:

Entitlement to Costs

When costs to follow the even (O.62, r.3)

3.-(1) Subject to the following provisions of this Order, no party shall be entitled to recover any costs of or incidental to any proceedings from any other party to the proceedings except under an order of the Court.

(2) If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings, the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.

[3]. By way of background, the substantive matter between the parties involved a dispute about a certain trademark. The plaintiff had all along alleged that it has exclusive rights to the trademark.

[4]. The plaintiff had also alleged that the defendant infringed the plaintiff’s exclusive right to that trademark. That alleged infringement by the defendant was what prompted the plaintiff to institute the substantive proceedings in this matter in July 2009 followed by the filing of an application seeking various injunctive reliefs.

[5]. At some point, there appeared to have been a breakthrough in the relationship between the parties when the defendant on 14th August 2009 wrote a letter to the plaintiff saying that she was prepared to give an undertaking to stop importing the brand of footwear which was the subject of the infringement-of-trademark claim - although she maintained that her brand of footwear did not infringe the plaintiffs rights to the trademark in question. It appears that despite that undertaking, settlement did not take place immediately as the defendant’s solicitors were not properly instructed on the defendant’s stand. The defendant deposes in her affidavit that the reason for that was because she was in India and that she had left it to her son to attend to matters with her lawyers. She also appears to say that her lawyers were fully aware of her stand and should have acted accordingly.

[6]. I note that after 14th of August 2009, the date when the defendant gave the undertaking to the plaintiff by letter, the case was called in Court six (6) times between 18th August 2009 to 02nd December 2009.

[7]. In 2010, it was called four (4) times between 20th January 2010 to 17th February 2010 when the Notice of Motion for an Order as to Costs was filed. Then between 03rd March 2010 to 15th July 2010, the matter was adjourned six (6) times when it was finally heard on the latter date before me.

[8]. Hence, altogether, the case was adjourned 16 times from the time the defendant gave that undertaking which the plaintiff appeared to be comfortable with to the time the application was finally heard.

[9]. It is because of that delay that the plaintiff seeks costs.

[10]. Yuvraj Hansji deposes that a good part of the delay was caused by the defendant in filing an affidavit in reply on 10th September 2010 which gave the impression that the defendant was then recanting on their undertaking and commitment to settlement. That triggered the filing of an affidavit in answer by the plaintiff in September 2009 and further adjournments.

[11]. However, from 21st October 2009, it was clear beyond doubt that the defendant was committed to settlement. All adjournments thereafter was simply the result of lawyers not being able to see eye to eye on the issue of costs. I do not think that either of them should have to pay for the costs for that period and parties should bear their own costs for that period accordingly.

[12]. After taking all into account, I am of the view that the plaintiff is entitled to costs which I summarily assess at $500-00 (five hundred dollars only). That cost will have to be shared equally between the defendant and her solicitors and should be settled within 21 days of the date of this ruling.

Anare Tuilevuka
Master

At Suva
Dated this 13th day of August 2010.