IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

Civil Action No 029 of 2011

BETWEEN:

CRAIG MUDGWAY
of 31 The Cove, Denarau Island.
Plaintiff

AND:

BRENDON HANNON
of the Anchorage Beach Resort, Vuda Point, Vuda.
Defendant

Before : Master Anare Tuilevuka
Appearances : Mr. Nemani Vakacakau of Lowing & Associates for the Plaintiff/Respondent.
Mr. Kamal Kumar of Young & Associates for the Defendant/Applicant.

Date of Ruling : Thursday 29 March 2012

RULING

INTRODUCTION

[1].	The defendant, Brendan Hannon, has filed a summons dated 15 December 2011 against the plaintiff, Craig Mudgway, pursuant to Order 23 Rule 1 of the High Court Rules 1988 seeking the following particular Orders:

[i].	that the plaintiff gives security for the defendant's costs and incidental to these proceedings.
[ii].	that the plaintiff's claim be stayed until such security is given.
[iii].	that the amount and form of such security is to be fixed by the court.
[iv].	such further orders as the court sees fit.
[v].	costs

[2].	The application was duly served on Mudgway's solicitors, Lowing & Associates.

HANNON'S POSITION

[3].	Hannon's affidavit sworn on 14 December 2011 is filed herein support of his application. He deposes that Mudgway now resides in New Zealand. Mudgway himself pleads in paragraph 1 of his statement of claim that he "is a resident of New Zealand and the owner of property known as 31 The Cove Denarau Island...".

[4].	Hannon also briefly outlines the nature of the dispute between him and Mudgway as one arising out of a sale and purchase agreement that they had entered into on 16 and 17 September 2010 and subsequently re-signed on 05 October. Mudgway apparently is questioning the manner in which the sale and purchase agreement was executed.

[5].	Hannon is aware that Mudgway used to own a property at 31 The Cove on Denarau Island comprised in Certificate of Title No. 34907. However, that property was under a mortgage pursuant to which the mortgagee, Scan System Investments Pty Limited, has taken possession and is in the process of selling it pursuant to the said mortgage. 

[6].	I am aware of the above - having dealt with two applications in December 2011 by Scan System's solicitor, Vasantika Patel, to remove certain caveats on the property so that Scan Systems can proceed with its proposed mortgagee-sale of the property.

[7].	Hannon outlines in his affidavit an estimate of the expenses and costs that he expects to incur to his solicitors, Young & Associates. That estimate of $24,750.00 in costs and legal fees is based on advice to him by Young & Associates which figure Hannon breaks down as follows: 

Young & Associates
(filing Reply to Defence to counterclaim and Pre-Trial matters		$ 5,000	
Young & Associates
(advised by Young & Associates that the hearing could take at least two days and Young & Associates' fees for related attendances i.e. preparations and conducting trial)		$15,000	
Witness
(Carol West – Real Estate Agent and staff of Professional West Realty who were party to the negotiations for the sale and purchase of the property in question).		$ 500	
Miscellaneous (Disbursements, photocopy and Out of Pocket Expenses)		$ 1,250	
VAT provisions		$ 3,000	
TOTAL	$24,750-00	

MUDGWAY'S POSITION

[8].	Mudgway has not filed any affidavit to oppose Hannon's application. However, on 23 December 2011, Lowing & Associates filed a Summons to Withdraw As Solicitors under Order 67 Rule 6 of the High Court Rules 1988. Since then, this matter has been called over in court on four occasions. When the matter was last called on 22 March 2012, I gave the plaintiff's solicitors time to file an affidavit in opposition by Monday 26 March 2012 and adjourned the case to today for ruling. Apparently, Lowing Nandan & Associates have not been able to serve their application on the plaintiff – hence leave is yet to be given to them to withdraw as counsel for the plaintiff.

[9].	The affidavit of Suzie Cheer which is filed in support of Lowing & Associates' Order 67 application deposes that Mudgway owes the firm an accumulated debt of $57, 454-90. The debt is owing in respect of Lowing & Associate's various attendances for Mudgway in this case.

[10].	Cheer exhibits to her affidavit copies of thirteen bills which the firm had sent to Mudgway between 01 July 2010 to 31 July 2011. The plaintiff has failed to settle any of the accounts.

RELEVANT LAW

[11].	The authority of the court to grant  security for costs  is provided for in Order 23, Rule 1(1)(a) of the High Court Rules 1988:

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

[12].	It is established in this case that Mudgway is a resident of New Zealand. The onus then shifts to him to convince the court that - having regard to all the circumstances of the case – an order for security for costs should not be granted. Mudgway may succeed in this regard by showing that he has property in Fiji which can be made subject to the process of the court (as per Fatiaki J in Babu Bhai Patel –v- Manohan Aluminium Glass Fiji Ltd Suva High Court Civil Action No. HBC 0019/19). 

[13].	But still, even if Mudgway is ordinarily resident overseas and has no assets in Fiji, he may still avoid having to pay security for costs if he is able to convince the court that such an order would be oppressive to him. 

[14].	By not filing any affidavit, Mudgway has simply failed to discharge the burden which the law places on him.

CONCLUSION

[15].	After having considered all, I order that Mudgway pays into court within 30 days of the date of this Ruling the sum of FJD$24,750 as security for costs. Unless he complies with this Order, his claim will be struck out with costs. 

Case adjourned to Wednesday 02 May 2012 at 8.30 a.m. for mention.

...................................
Anare Tuilevuka
Master

At Lautoka
29 March 2012.