Prasad v Prasad [2016] FJHC 597; HPP50.2013 (5 July 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVILJURISDICTION

Civil Action No.HPP 50 of 2013

IN THE ESTATE of RAM ASRE late of 10 Yasi Road, Delainavesi, Retired Farmer, Deceased, Testate.

BETWEEN : DEVI PRASAD and PREETHI PRASAD both of 10 Yasi Road, Delainavesi, Retired and Accounts Clerk respectively as executors of the Estate of RAM ASRE late of 10 Yasi Road, Delainavesi, Retired Farmer, Deceased, Testate.

PLAINTIFFS

AND : MANI PRASAD of 10 Yasi Road, Delainavesi, Retired.

DEFENDANT

COUNSEL: Mr. O Driscoll for the Plaintiff (Applicant)

Mr. Vakaloloma for the Defendant

Mr. Vananalagi for the Defendant (as incoming Lawyer)

BEFORE: Master Vishwa Datt Sharma

Date of Hearing: 02^nd September, 2015

Date of Ruling: 05^th July, 2016

RULING
[Costs to dispense with PTC minutes and wasted attendances to procedural
matters and hearing pursuant to Order 62 of the High Court Rules, 1988]

1. INTRODUCTION
   

1. The Plaintiff is seeking costs against the Defendant at the discretion of the Master for having made an application to dispense with Pre-Trial Conference Minutes and several wasted attendances to the procedural mentions and a hearing between 16^th October, 2015 and 24^th April, 2015.
   
2. Three (3) separate written submissions were received from the Plaintiff’s Counsel Mr. Driscoll and two (2) Defence Counsels Mr. Vakaloloma and incoming Counsel Mr. Vananalagi respectively. It will be noted that Mr. Vakaloloma is yet to be granted leave to withdraw as Defence Counsel until this court has made a determination on the costs issue.
   

The Plaintiff’s Counsel had submitted that the Plaintiff is entitles to costs as sought for in his written submissions whereas, Defence Counsel Mr. Vakaloloma is of the submissions that Court to exercise its unfettered discretion and find that any order of cost must be between the Plaintiff and the Defendant and its present Counsel, Mr. Vananalagi. Mr. Vananalgi is of the submissions that whatever costs is ordered by the court to be paid by Vakaloloma & Associates.

2. LEGAL PRINCIPLES
   

3. O. 62, r.3 (1) of the High Court Rules 1988 provides that no party shall be entitled to recover any costs of or incidental to any proceedings from any other party to the proceedings except under an order of the Court.
   
4. In determining whether costs should be awarded a Court exercises its discretion, a discretion seemingly enfettered but which of course must be exercised judicially. It is therefore possible to make some general observations about how the discretion is likely to be exercised in the ordinary run of cases. The two most general propositions being:
   
   • (a) Costs normally “follow the event” so that an unsuccessful party must pay costs to a successful party.
   • (b) Costs are usually awarded on a “party and party” basis, rather than a “solicitor client basis” or “indemnity basis”. Except in rare cases, a successful party can only expect to receive a contribution towards the actual legal expenses incurred.
     

(ORDER FOR COSTS)

5. O. 62, r.4 (1) of the High Court Rules 1988 provides that costs may be dealt with by the Court at any stage of the proceedings or after the conclusion of the proceedings.
   
6. Accordingly, this Court has the power to hear this application for costs. The Court’s power is found in O. 62, r.4 (1) of the High Court Rules 1988, and Wilson (supra) further supports this application.
   

ANALYSIS AND DETERMINATION

7. I have perused my court record together with written submissions received from the various counsels representing the Plaintiff and the Defendant accordingly on the issueof costs on standard basis.
   
8. There is ample provision in The High Court Rules 1988 under Order 62 for the award of costs. The Court must be satisfied that costs actually incurred and the costs were reasonable in nature
   
9. The Plaintiff’s written submissions addresses me as to what transpired from the 04^th September, 2014 when this Court ordered that a Pre-Trial Conference be conducted by the parties to the proceedings.
   
10. Reference is made to the Plaintiff Counsel’s written submissions at paragraph 15 and 16 and his contention is that he is entitled to costs as follows-
    
    1. 10 wasted mentions at $300 per mention = $3000;
    2. 1 wasted hearing at $600 per hearing = $600;
    100. Preparation of application $300 = $300; and
    4. Disbursements incurred $57.50.

Total cost being $3957.50 on the higher scale. On the lower scale as set out the costs in a, b and c would be reduced by 50% and therefore the total would be $2007.50.

11. However, the chronological events of this case from04^th September, 2014 to 12^th May, 2015 are as follows-
    
    • 04.09.14 - Plaintiff sought time to conduct PTC;
    • 16.10.14 - PTC conducted and seeking instructions to settle;
    • 12.11.14 - Plaintiff sought 2 weeks to file PTC minutes;
    • 27.11.14 - Plaintiff sought time to file PTC;
    • 11.12.14 - Plaintiff informed Court will file Application for Dispensation of PTC minutes;
    • 23.01.15 - Plaintiff sought ext. of time to file application for dispensation.
    • 09.02.15 - Plaintiff filed motion but not served;
    • 16.02.15 - PTC held, motion for dispensation served but no affidavit of service filed;
    • 19.02.15 - Plaintiff sought Hg date on motion for dispensation;
      
    • 05.03.15 - Defendant sought adjournment to take instruction whether PTC minutes to be signed and adopted or Hg. on motion for dispensation. Deft serving term of imprisonment. Plaintiff sought costs for his present and previous appearances, 5 months taken for PTC formalization etc. Sought $1,000 costs. Deferred to 13.3.15;
      
    • 13.03.15 - Plaintiff asking Court to make a decision on previous costs issue. Deft. Sought time to seek full instructions on PTC. Court ordered for written submissions on costs issue;
      
    • 07.04.2015 - Plaintiff sought orders on motion for dispensation of PTC- Deferred. Sought costs for the day. Costs of today in cause;
      
    • 24.04.15 - Defence Counsel misleads Court that PTC minutes with court registry when no PTC minutes filed. Orders made on motion for dispensation filed on 3/2/15;
      
    • 12.05.15 - Order 34 Summons filed. Granted for SCO to take necessary action in allocating case to a Judge and inform all parties accordingly.
      
12. Upon a careful perusal of the court file and bearing in mind the aforesaid chronology of events, it is apparent that the Plaintiff Counsel at no stage of the proceedings right from 04^th September, 2014 till 19th February, 2015 seek any costs either for wasted mentions or hearing.
    
13. The record shows that the Plaintiff in fact raised the costs issue on 05^th March, 2015 only when he sought for costs for his appearance on 05^th March, 2015 and for previous occasions since the Pre- Trial Conference was yet to be formalized by the parties to the proceedings.
    
14. To be specific, the Plaintiff Counsel did not seek any costs prior to the 05^th March, 2015 on the following dates as reflected herein above in the chronology of events. Therefore he is not entitled to any costs at this stage of the proceedings for these dates. He may if so wishes to file an appropriate application once the Substantive matter has been dealt with by the High Court Judge-
    
    • O4th September, 16^th October, 12^th November, 27^th November and 11^th December, 2014 and
    • 23^rd January, 09th, 16^th and 19^th February, 2015.
      
15. Plaintiff Counsel is entitle to his wastage hearing costs of $600 for 05^th March, 2015 because it was the Defence Counsel who made an application to vacate the hearing date, as he wanted to take further instructions from the Defendant on the Adoption and Dispensation of Pre-Trial Conference minutes.
    
16. Costs sought for 07^th April, 2015 was awarded as costs in the cause and the Plaintiff counsel will have to wait for the conclusion of the substantive hearing of the matter before the High Court Judge and thereafter make an appropriate application in terms of the High Court Rules, accordingly.
    
17. Finally, this court will allow $300 for wasted mention and appearance on 24^th April, 2015.
    
18. In summary, the Plaintiff is entitled to the costs for the following dates accordingly-
    
    • (a) 05^th March, 2015 - Wastage Hearing - $600.
    • (b) 07^th April, 2015 - Costs in the Cause, and
    • (c) 24^th April, 2015 - Wastage Mention - $300.
      

TOTAL COSTS PAYABLE - $900.

ORDERS

(i) Plaintiff is entitled to a total sum of $900 as costs from the Defendant as per paragraph 18 hereinabove.

(ii) Costs to be paid by the Defendant within 28 days.

Dated at Suva this 05^th Day of July, 2016

.........................................

VISHWA DATT SHARMA

Master of the High Court

Suva

cc: O’ Driscoll & Co, Suva.
Vakaloloma & Associates, Suva.
R. Vananalagi & Associates, Suva.