Giesbrecht v Cross [2011] FJHC 328; HBC540.2007 (6 June 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HBC 540 of 2007

BETWEEN:

DIANA GIESBRECHT
PLAINTIFF

AND:

ROWENA GRACE CROSS AND DOUGLAS BAMLETT
DEFENDANTS

Appearances: Mr. Bukarau for the plaintiff.
Mr. I. Fa for the defendants.
Date/Place of Judgment: Monday, 06th June, 2011.
Judgment of: The Hon. Madam Justice Anjala Wati.

JUDGMENT

COSTS – The issue before the court is whether costs ordered against the plaintiff be deferred for payment until the final matter is determined-circumstances and facts of case justify that payment be deferred.

1. On the 18th day of January, 2010, the plaintiff filed an application for an order to amend the statement of claim.
   
2. The defendants counsel did not object to an amendment but wanted the plaintiff to pay the costs of $5,700 which was ordered by Justice Hickie on 17th day of March, 2009. On the day his Lordship had also ordered that "in the absence of a formal application filed with the Court and a subsequent hearing, the Court declines making an Order that the plaintiff not be allowed to proceed with her claim until the costs of the Summons are paid".
   
3. The plaintiff wants it amendment to be granted and that the issue of payment of costs be deferred until the case is finalized. The plaintiff also submitted that the defendants are being investigated for criminal charges of various offences committed against the plaintiff. The plaintiff's counsel further submitted that the principal claim is about the defendants having taken the money from the plaintiff for investment by fraud and therefore payment of the cost at this stage is unjustified as the defendants have committed a wrong against the plaintiff and if the plaintiff succeeds in its claim, the defendants can hardly be considered as falling in the category of people who would honour the judgment by payment..
   
4. The defendants counsel indicated that the court cannot deal with the issue of deferment of costs as the issue is res judicata and the court is now functus on the matter. The counsel insists that costs be paid in full otherwise the claim be struck out and the plaintiff not be allowed to proceed with its claim.
   
5. I need to determine the matter at hand.
   
6. The defendants counsel was ordered by Hickie, J to make a formal application for the issue to be tired and the issue was whether or not the plaintiff be allowed to proceed with the claim until the costs of the summons are paid. The defendant has failed to comply with that order and is raising that issue now when the application for amendment is made. This is improper as the initial orders of the courts stands. I can thus refuse the defendants application to allow an amendment only upon payment of the costs previously ordered.
   
7. Further, the issue of deferring the payment of costs is neither res nor is the court functus as the presiding judge had left it open for the issue to be tried but only upon filing of the formal application.
   
8. The plaintiff's application for an amendment is not objected and in any event the amendment seeks to particularize the initial allegations and does not prejudice the defendants in any way. It in fact only tidies up the pleadings which is necessary for a swift trial.
   
9. I also take notice that the plaintiff's complaint is that the defendants have defrauded her of money. In the circumstances, I am of the judgment that the nature of claim demands that the payment of costs be left until the matter is determined because if the plaintiff succeeds in its claim than the defendants will not have to be paid the costs and if the defendants succeed then the issue of costs can be enforced against the plaintiff.
   
10. Further, there is evidence that the defendants are being investigated for criminal proceedings on the same transaction forming the subject of the civil claim. It would therefore greatly disadvantage the plaintiff if the cost is ordered to paid now as recovery may become an issue if the defendants are being prosecuted. Recovery may also become an issue because the defendants are alleged to have left the country and not available in Fiji.
    
11. The defendants have sat on the order for payment of costs for so long without enforcing the debt. They are raising the issue of payment when the plaintiff is trying to expedite its claim by processing the preliminaries to go to trial. It is highly improper that due process of the matter be hindered when the defendants have slept on the order for so long. If the defendants were interested and keen on recovering the costs, an enforcement proceeding would or should have followed up till now.
    
12. It is more prejudicial if an order for payment of costs is made now.
    
13. For the above reasons I make the following orders:-
    
    1. The plaintiff is at liberty to file and serve its amended statement of claim within 14 from the date of the order.
       
    2. The defendant is at liberty to file its amended statement of defence within 14 days thereafter.
       
    100. Any reply to the amended statement of defence must be filed within 7 days thereafter.
         
    4. The payment of costs of $5,700 ordered to be paid by the plaintiff is to be deferred until the matter is finally determined.
       
    5. Thereafter the amended pleadings are in order, the matter to take its normal course.
       
    6. The costs of this application and the costs of the amendment shall be the costs in the cause.
       
    7. Orders accordingly.
       

Anjala Wati
Judge
06.06.2011

To:

1. Mr. Bukarau, counsel for the plaintiff.
2. Mr. I. Fa, counsel for the defendant.
3. File: HBC 540 of 2007.