Sigatoka Electric Ltd v Vimal Investments (Fiji) Ltd [2011] FJHC 596; HBE46.2010L (23 September 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

WINDING UP Action No: HBE 46 of 2010L

BETWEEN:

SIGATOKA ELECTRIC LIMITED
Petitioner

AND:

VIMAL INVESTMENTS (FIJI) LIMITED
Respondent

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr D Naidu (Petitioner)
Mr F Khan (Respondent)

Solicitors: Pillai Naidu & Assocs (Petitioner)
Faiz Khan Lawyers (Respondent)

Dates of Hearing: 15 September 2011

Date of Judgment: 23 September 2011

INTRODUCTION

[1] On 12 May 2011, Master Tuilevuka ordered that this winding up petition be taken off the list and awarded costs of $600 to the respondent because when the petition was called on that day, Mr Naidu, counsel for the petitioner did not appear. Mr Naidu had taken ill on the day before but his clerk did not notify counsel for the respondent, Mr Khan, and Mr Khan did not receive a letter from Mr Naidu's office together with a copy of a medical certificate asking for an adjournment until a few minutes before the fixture and after Mr Khan had done all his preparations on the case the night before.

[2] Mr Naidu filed an application on 16 June 2011 to have the Master's costs order set aside supported by an affidavit from his clerk. The application is made pursuant to O 59 r 2(f) of the High Court Rules 1988 and the court's inherent jurisdiction. The application was referred to me for ruling because the Master was not sure whether he could set aside his own costs order. This is my ruling on that application.

THE RULING

[3] I do not think I need to decide whether the Master can set aside his own costs order now that the application is before me, although I think that he can because he has the same powers as a Judge in chamber matters and no doubt a Judge can revisit his own costs order when it is not an order made after hearing both parties, as the costs order in this case was: see Wati v Western Division Drainage Board [2009] FJHC 165; HBC332.2001L (18 August 2009) and Chandra v Chand [2009] FJHC 201; HBC50.2007L (10 September 2009).

[4] I note that, according to the Master's handwritten notes, the matter was "Adjourn to 12/05/11". It is not clear whether it was for hearing or mention, although both solicitors appear to have proceeded on the basis that it was for hearing on 12 May 2011 at 11.00am.

[5] Mr Khan had done his preparations before he was informed of Mr Naidu's illness. Mr Khan could have been informed the day before. It was the fault of Mr Naidu's office for not doing so. In the circumstances I think the Master exercised his discretion correctly in granting costs. I also think the amount is reasonable for costs thrown away.

[6] This application is simply one to vacate the $600 costs order because the Master did not strike the matter out; he simply took it off the list. I will therefore restore it to the list and refer it back to him to hear the substantive application.

ORDERS

[7] I therefore order that:

• (a) The Master's costs order of 12 May 2011 is affirmed.
  
• (b) The petition is restored to the list to be mentioned on a date convenient to the Master.
  
• (c) I make no order for costs for this application.
  

Sosefo Inoke
Judge