Tandraiya v Mahadeo [1979] FJSC 86; Action 111 of 1973 (10 October 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
CIVIL JURISDICTION

Action No. 111 of 1973

BETWEEN

KRISHNA TANDRAIYA s/o Tandraiya
Plaintiff/Respondent

AND

MAHADEO s/o Tilak
1st Defendant/Appellant

DHARAM SINGH s/o Pratap Singh
2nd Defendant/Appellant

Mr. R.D. Patel, Counsel for the Plaintiff/Respondent.
Dr. M.S. Sahu Khan, Counsel for the 2nd Defendant/Appellant.

JUDGMENT

This is an appeal against the costs awarded by the Deputy Registrar in a running down action.

There were 2 defendants, Mahadeo (1st) and Dharam Singh (2nd) driving different motor vehicles.

No defence was filed by the 1st defendant and on 13/8/74 judgment was entered against the 1st defendant for damages to be assessed.

On 18/10/74 that judgment was, by consent, set aside and the first defendant agreed to pay $50.00 costs to the plaintiff.

On the hearing date 4/4/77 the plaintiff did not appear and judgment was given for each defendant with costs; the plaintiff's claim being dismissed.

On 29.4.77 that judgment was set aside on the plaintiff's application on condition that the plaintiff paid all costs of the proceedings up to and including the date of the application to set aside. It was also ordered that Mr. R.D. Patel the Plaintiff's advocate appear and show cause why he personally should not pay those costs.

On 6/3/78 following trial judgment was given for the plaintiff as against the 2nd defendant, the latter being held entirely to blame. He was ordered to pay the costs of the plaintiff and of the first defendant.

The plaintiff now claims costs as from the beginning of the action. He argues that this does not defeat the Judge's order of 29.4.77 when the judgment against the plaintiff was set aside because the defendants were paid their costs to that date by the plaintiff. However, once the final judgment after hearing had been delivered the plaintiff became entitled to his costs. There are defendant's costs and there are plaintiff's costs and an order that plaintiff should pay the defendant's costs for the first half of the proceedings is not an order which will deprive the plaintiff of his costs for the first half of the proceedings if the plaintiff eventually succeeds.

I do not, with respect, concur in the plaintiff's submissions. When the judge gave judgment against the plaintiff on 4.4.77 that was on the face of it an end to the proceedings and the defendants were entitled to their costs to-date.

On 29.4.77 when that judgment was set aside it also set aside the order for the costs which was part of the judgment. But the terms on which it was set aside were "that all costs of the action down to judgment and including this application be paid by the plaintiff". The order was not that the plaintiff pay the costs of the defendants to date but that he pay all costs. In other words the plaintiff is responsible for all parties' costs to the date of the order; such an order clearly includes the plaintiff's costs and purposely prevents him from saying at a later stage that he should have those costs.

The appeal is dismissed. The defendant (appellant) will pay the plaintiff/respondent's costs.

(Sgd.) J.T. Williams
JUDGE

LAUTOKA,
10th October, 1979.