General Machinery Hire Ltd v Himalaya Auto Company Ltd [2012] FJHC 914; HBC145.2011L (7 March 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 145 of 2011L

BETWEEN:

GENERAL MACHINERY HIRE LIMITED
Plaintiff

AND:

HIMALAYA AUTO COMPANY LIMITED
Defendant

JUDGMENT

Judgment of: Ms Dias Wickramasinghe J.

Counsel: Mr V Sharma for the plaintiff
Ms Q Vokanavanua for the defendant.

Solicitors: Vijay Naidu & Associates for the plaintiff
Iqbal Khan & Associates for the defendant

Date of Judgment: 7 March 2012

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Keywords: costs vis a vis legal fees; Order 62 of the High Court Rules

INTRODUCTION

[1] The plaintiff by his writ of summons sought an injunction restraining the defendants from presenting or proceeding with a winding up petition against it, until further orders of the Court.

[2] The application was made ex parte. However, on a consideration of the application, I ordered the matter to be listed inter partes.

[3] Subsequently, the parties settled the matter and the terms of settlement were filed in court on 16 February 2012. However, the parties disagreed on the costs of the action and sought specific orders from the Court relating to costs. I then ordered the parties to file an affidavit in support of their respective costs and to file written submissions.

[4] The plaintiff filed the affidavit of Alvin Singh dated 2 March 2012, opposing the award of costs. The defendant in its written submissions relied on the affidavit of Moshin Infraan Ali dated 4 October 2011 in support of its costs. Both parties filed written submissions.

[5] Ms Vokanavanua, the counsel for the defendant is seeking costs in a sum of $1000.00.

LEGAL MATRIX

[6] Ms Vokanavanua, in her written submissions submits that both parties were represented by the legal counsel. It appears that the plaintiff had paid its debt directly to the defendant without the knowledge of the defendant's counsel. Ms Vokanavanua thus submits that the plaintiff deprived her of recovering her costs due to the direct payment to her client. She therefore moves for $1000.00 to be paid by the plaintiff to the counsel of the defendants.

[7] Order 62 of the High Court Rules, 1988 regulates the powers of the Court in awarding costs. Costs are paid to the clients and not legal representatives ( O.62 r. 3 of the High Court Rules). Legal fees between clients and counsel are matters between them and not against opposing or third parties.

[8] The plaintiff is not seeking costs against the defendant and states that the parties agreed to settle the High Court action without any conditions, including costs.

[9] An e-mail dated 19 December 2011, originated to the defendant's counsel by Mr Gambhir (on behalf of the defendant) and copied to the plaintiff was marked Annexure C and attached to the affidavit by Alvin Singh dated 2 March 2012. The said email is sufficient proof that the defendant had instructed its solicitors to withdraw the case unconditionally.

[10] Since giving instructions to settle this matter by the defendant on 19 December 2011, the cause came before me on four occasions i.e, 30 January 2012, 10 February 2012, 13 February 2012 and 22 February 2012. On all four occasions, further time was sought with the court being informed that the parties were attempting settlement and the parties' disagree relating to costs. I then informed both parties that I would assess costs. It was my understanding then that the cost related to the clients and not some unsettled legal fees.

[11] If the defendant had not paid the legal fees of his counsel, Ms Vokanavanua must pursue it with her client, the defendant and not the plaintiff.

[12] In the circumstances, I dismiss her application for $1000.00.

D. Dias Wickramasinghe
Judge