Vunimoli Sawmill Ltd v Sen [2015] FJHC 744; HBC25.2004 (18 September 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
NORTHERN DIVISION
CIVIL JURISDICTION

Civil Action No: HBC 25 of 2004

BETWEEN :

VUNIMOLI SAWMILL LIMITED a limited
liability company having its registered office at Navakamasisuasua, Nasea, Labasa.
1ST PLAINTIFF

BASIR KHAN of Navakamasisuasua, Labasa,
Managing Director of Vunimoli Sawmill
Limited
2ND PLAINTIFF

AND:

AMRIT SEN Barrister & Solicitor, trading as
Maqbool & Co of Nanuku Street, Labasa.
1ST DEFENDANT

MOHAMMED YASIN of Viti Vanua Holdings
Limited, Vunimoli, Labasa, Businessman
2ND DEFENDANT

YU SHIN HO of Dreketi, Macuata,
Businessman trading as Taiwan Timber, Fiji Limited.
3RD DEFENDANT

Appearances : Mr. Bashir Khan appearing in person for the plaintiffs
Mr. Sen of Maqbool & Co for the Defendants

TAXATION OF COSTS

Background

1. Before I proceed to the taxation of the costs in this matter it appears prudent in the circumstances to provide a general outline of the background of the matter.

2. The action was filed on the 11 May 2004 and further amended on the 21 May. After numerous interlocutory applications the matter was set down for trial on the 10th July 2008. The trial did not proceed on the plaintiff's application. The adjournment was allowed with costs against the defendant for $2350:00. The matter was then put before the Master on the 20th August 2008 where a further hearing date of 18th and 19th of September was set.

3. On the 28 August 2008 the plaintiff made an application to amend the claim. This was heard by the Master on the 3 September and a decision delivered on the 5 September which denied the application on a technical ground.

4. A further application was then made by summons dated the 11 September 2008 and the matter was before the same judge who heard the application for adjournment on the 18 September. Meanwhile the plaintiff had changed his counsel three times during the period. The judge then made certain orders in relation to an application that the matter is res-judicata. There apparently was another similar matter filed in the Magistrates Court in Labasa. In this action the plaintiff had called witnesses tendered document but somehow withdrew the action. The matter was then struck out with costs.

5. By the time the application to amend the writ was heard on the 15 March 2012 the plaintiff had changed his solicitor again. The period from 19 September 2008 to the hearing of the application on the 15 March 2012 there does not appear to be any movement at all with the file.

6. On the 26 September 2012 the judge made a ruling which further denied the plaintiff's application to amend his claim. This ruling not only denied the plaintiff's application to amend but further struck out the claim altogether with costs to be taxed if not agreed.

7. The plaintiff then appealed against this decision to the Court of Appeal but made an application to extend the time to appeal in the High Court which was refused by Justice Kumar on the 10 June 2013. On the 23 August 2013 the matter came before The Hon Mr. Justice Calanchini in the Court of Appeal for an application to appeal out of time. This application was granted on the 20 December 2013 with a further order that the respondents be restrained from proceeding to the taxation of costs in the High Court action until the determination of the appeal. The Master was informed by the Counsel for the defendant that the appeal has been abandoned and that we can now proceed with the taxation of costs. We now have that in writing sent on Tuesday 14 September.

The Power of the Masters to Tax Costs

8. Before the establishment of the Master's Chambers, the High Court Rules, more specifically Order 62 thereof, authorised the Registrar or any officer authorised by the Chief Justice to act as the taxing officer. By Legal Notice number 16 of 16 June 2006 the Chief Justice in the exercise of the powers conferred upon Him pursuant to sections 21A and 25 of the High Court Act amended the High Court Rules include Order 59 to enable the Master to exercise certain judicial powers without limiting the powers already conferred by the Rules to the Judges of the High Court.

9. Order 59, rule 1 and in particular gave the Master the power to exercise jurisdiction over matters conferred on the Deputy Registrar. This rule states:-

"The jurisdiction conferred on the Registrar under this Rules may be exercised by the Master"

A "taxing officer" is interpreted under Order 62 as the Registrar or any officer for the time being authorised by the Chief Justice to act as a taxing officer. This meant that the Master now becomes a taxing officer for the purposes of Order 62.

Powers of Taxing Officers

10. Order 62 rule 12 sub-rule 1 allowed the taxing officer to have power to tax :-

(a) the costs of or arising out of any cause or matter in the High Court;

(b) the costs directed by an award made on a reference to arbitration under any Act or pursuant to an arbitration agreement to be paid; and

(c) any other costs the taxation of which is directed by an order.

11. The taxing officer also has the powers to tax any costs directed by an enactment to be taxed or settled by the High Court, (O.62, r 12 (2)).

12. The taxing officers also has supplementary powers to enable proper discharge of its functions by taking into account certain matters relevant including any dealings in money made in connection with the payment of costs; the protection of parties represented jointly in the proceedings to be separately represented on the taxation of costs; an examination of witnesses and to direct the production of documents if necessary.

13. This was a matter where the Court had ordered costs against the Plaintiff. The Defendant had not begun proceedings for taxation within the prescribed time pursuant to Order 62 rule 20(2) an application was the made by summons to extend the time under order 62 rule 15 (1), this was subsequently granted.

14. The taxation of the Defendant's Bill of Costs was completed taking into account the following matters:-

a) the complexity of the item or cause, or matters in which it arises

b) the staff, specified knowledge and responsibility required of and the time expected by the solicitor and counsel

c) the number of documents prepared

d) place and circumstances

e) the importance of the cause or matter to the client

f) where money is involved its amount or value.

15. The scale of costs available to the taxation officer to be used as a guideline was from Part 1 of Appendix 4 of the High Court Rules.

DEFENDANTS BILL OF COSTS FOR TAXATION AGAINST THE PLAINTIFF PURSUANT TO THE ORDER OF HONOURABLE JUSTICE HETTIARACHCHI DATED 26TH SEPTEEMBER 2012

ITEM	PARTICULARS	SCALE OF COSTS APPENDIX 4	COSTS	DISBURSEMENTS	AMOUNT ALLOWED BY TAXING OFFICER
1.	Receiving and perusing letter dated 3rd October 2003 from Vunimoli Sawmill to Fiji Law Society	40	$22.50		Nil
2.	Receiving and perusing letter Dated 13th October 2003 from Vunimoli Sawmill to Commissioner of Police Headquarters	40	$22.50		Nil
3.	Receiving and perusing a letter dated 5th November 2003 from Vunimoli Sawmills to Commissioner of Police	40	$22.50		Nil
4.	Receiving and perusing a Letter dated 9th January 2004 from Vunimoli Sawmill to Fiji Law Society	40	$22.50		Nil
5.	Perusing Writ of Summons and statement of claim date 11th May 2004	7	$750.00 ($250 x 3)		$200:00
6.	Receiving and perusing letter dated 13th May 2004 from Naipote Vere to divisional Commander Northern	40	$22.50		$22:50
7.	Receiving and perusing amended statement of claim dated 21st May 2004	7	$750.00 ($250 x 3)		$200:00
8.	Drafting letter to Naipote Vere dated 5th August 2004	40	$62.50		$45:00
9.	Preparing and filing acknowledgement of service dated 8th September 2004	40	$150.00 ($50 x 3)	$11.00	$45:00
10.	Preparing and filing summons dated 6th October 2004	24(a)	$900.00 ($300 x3)	$56.25	$100:00
11.	Receiving and perusing letter dated 7th October 2004 from Naipote Vere	40	$22.50		$22:50
12.	Preparing and filing affidavit of service dated 13th October 2004	40	$150.00 ($50 x 3)		$22:50
13.	Preparing and filing order dated 29th November 2004	40	$150.00 ($50 x 3)	$11.25	$50:00
14.	Receiving and perusing further and better particulars dated 22nd February 2005	7	$750.00 ($250 x 3)		$50:00
15.	Receiving and perusing order dated 28th April 2005	40	$150.00 ($50 x 3)		$50:00
16.	Preparing and filing statement of defence dated 11th May 2005	7	$750.00 ($250 x 3)	$56.25	$200:00
17.	Drafting letter to Naipote Vere dated 17th May 2005	40	$62.50		$50:00
18.	Receiving and perusing letter dated 18th May 2005 from Naipote Vere	40	$22.50		$22:50
19.	Preparing and filing search and default judgment dated 4th August 2005	40	$150.00 ($50 x 3)		$50:00
20.	Preparing and filing search and default judgment dated 4th August 2005	24	$900.00 ($300 x 3)	$11.25 $56.25	$150:00
21.	Receiving and perusing Notice of Motion and affidavit dated 28th August 2005	40	$300.00 ($100 x 3)		Nil
22.	Receiving and perusing Notice of Motion and affidavit dated 29th August 2005	40	$300.00 ($100 x 3)		$150:00
23.	Receiving and perusing plaintiffs reply to statement of defence and counter-claim	40	$300.00 ($100 x 3)		$150:00
24.	Receiving and perusing letter dated 12th October 2005 from Naipote Vere to Commissioner of Police	40	$22.50		$22:50
25.	Receiving and perusing affidavit verifying plaintiffs list of documents dated 13th October 2005	40	$45.00		$45:00
26.	Receiving and perusing summons for direction dated 2nd November 2005	40	$100.00		$100:00
27.	Drafting letter to Naipote Vere dated 6th December 2005	40	$22.50		$22:50
28.	Receiving and perusing letter dated 6th December 2005 from Naipote Vere	40	$22.50		$22:50
29.	Receiving and perusing affidavit of Bashir Khan dated 26th April 2006	40	$100.00		$50:00
30.	Receiving and perusing affidavit verifying plaintiffs list of documents dated 5th June 2006	40	$45.00		$45:00
31.	Preparing and filing defendants list of documents dated 9th August 2006	10(a)	$450.00 ($150 x 3)		$100:00
32.	Receiving and perusing order darted 4th December 2006	40	$22.50		$22:50
33.	Receiving and perusing letter dated 12th February 2007 with draft minutes of pre-trial conference	40	$45.00		$45:00
34.	Receiving and perusing minutes of supplementary list of documents dated 15th march 2007	40	$45.00		$45:00
35.	Receiving and perusing plaintiffs supplementary list of documents dated 15th March 2007	40	$45.00		$45:00
36.	Preparing and filing amended statement of defence dated 10th September 2007	7	$750.00 ($260 x 3)	$56.25	$150:00
37.	Receiving and perusing notice of change of solicitors dated 25th June 2008	40	$12.50		$12:50
38.	Preparing and filing minutes of pre-trial conference dated 3rd July 2008	40	$62.50		$62:50
39.	Preparing and filing notice to Produce dated 7th July 2008	40	$125.00	$22.50	$62:50
40.	Preparing and filing order dated 4th August 2008	40	$50.00	$11.25	$50:00
41.	Receiving and perusing notice of change of solicitors dated 19th August 2008	40	$12.50		$12:00
42.	Receiving and perusing notice of motion and affidavit dated 28th August 2008	40	$100.00		$100:00
43.	Preparing and filing affidavit in protest dated 3rd September 2008	24(a)	$900.00 ($300 x 3)	$56.25	$150:00
44.	Perusing and receiving submissions of the plaintiff dated 3rd September 2008	40	$100.00		$100:00
45.	Receiving and perusing ruling dated 5th September 2008	40	$45.00		$45:00
46.	Receiving and perusing summons and affidavit dated 11th September 2008	18(a)	$100.00		$100:00
47.	Preparing and filing affidavit in opposition dated 16th September 2008	24(a)	$900.00 ($300 x 3)	$56.25	$150:00
48.	Receiving and perusing submissions dated 18th September 208	40	$100.00		$100:00
49.	Receiving and perusing change of solicitors dated 2nd October 2008	40	$12.50		$12:50
50.	Preparing and filing affidavit of Uday Pratap in support dated 1st October 2008	24(a)	$900.00 ($300 x 3)	$56.25	$150:00
51.	Receiving and perusing affidavit in reply dated 20th October 2008	40	$100.00		$50:00
52.	Preparing and filing submissions dated 4th November 2008	19	$300.00		$300:00
53.	Receiving and perusing plaintiffs submissions dated 18th November 2008	40	$100.00		$100:00
54.	Preparing and filing submissions dated 8th December 2008	19	$900.00 ($300x 3)		$150:00
55.	Receiving and perusing notice of change of solicitors dated 9th December 2010	40	$12.50		$12:50
56.	Receiving and perusing ruling of Pradeep Hettiarachchi	40	$45.00		$45:00
57	Preparing and filing order dated 5th October 2012	40	$45.00	$11.25	$45:00

TOTAL $6,544.75 $472.25 $4,104.50 $4,576.75

Total costs claimed $6,544.75 x 4 defendants)	$13,370.00
Plus Disbursements	$ 472.25
Appearance (45 x $50 x (3 defendants)	$ 6,750.00
Vat (15%)	$ 3,088.84
TOTAL	$23,681.10

In respect of Court appearances as appeared in the bill of costs I have taken into account that the 1st Defendant appeared not only for himself but for both the 2nd and 3rd defendants during each Court appearances and have considered that costs of $50:00 per Court appearance in the High Court as being on the low end of the scale and have substituted the amount to $75.00 as per paragraph 24 of appendix 4. However I am of the view that this figure should not be multiplied by 3 as claimed but by the number of Court appearances only which gives a total figure of $3,375.00.

CERTIFICATE

16. I certify that the Defendant's Bill of Costs was taxed pursuant to Order 62 of the High Court Rules.

17. The taxed costs were calculated using the fees prescribed under Part 1 of Appendix 4 of the High Court Rules.

Costs taxed and allowed at: $4,104.50.
Disbursements $472.25
Court appearances : $3,375:00

TOTAL : $7,951:75 plus vat.

..........................................
H A Robinson
MASTER
High Court, Labasa

18 September 2015