ANZ Bank (Kiribati) Ltd v Akamatang [2013] KICA 8; Civil Appeal 08.2013 (23 August 2013)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Civil Appeal No. 8 of 2013

BETWEEN

ANZ BANK (KIRIBATI) LTD
APPELLANT

AND

AKINETI AKAMATANG FOR HERSELF AND FOR BROTHERS AND SISTER SUING AS BENEFICIARIES OF THE DECEASED FUNDS
1ST RESPONDENT

AND

THE KIRIBATI PROVIDENT FUND
2ND RESPONDENT

Before: Paterson JA
Blanchard JA Handley JA
Counsel: Kiata Kabure for appellant Batitea Tekanito for 1st respondent
Banuera Berina for 2nd respondent
Date of Hearing: 19 August 2013
Date of Judgment: 23 August 2013

JUDGMENT OF THE COURT

1. The appellant appeals an order made by the Chief Justice Sir John Muria on the 23rd May 2013, ordering the appellant to pay $3,347.09 together with costs of $250 to the first respondents.
   
2. When the matter was called before this Court on 19 August 2013, Counsel for the first respondent conceded that the appeal should succeed but sought costs of $750.
   
3. The reason for the concession by the first respondent was that the Chief Justice's order was made without the appellant appearing at the May hearing. He was entitled to make the order in the absence of the appellant because he had before him an affidavit of service which on the face of it proved service of the notice of hearing on the appellant.
   
4. In fact it now emerges that service had been effected on a security guard for a branch of the appellant and not on an officer of the appellant. The respondents correctly conceded that this service was defective and the appeal should be allowed.
   
5. The claim for costs was made because the appellant's counsel was advised only on the day before the hearing in this Court that the concession would be made, notwithstanding that the first respondents had been aware for several days of the defective service. Counsel for the appellant prepared submissions for the hearing and attended the hearing.
   
6. This is an appropriate case for costs. Costs incurred by the appellant would have been and should have been avoided by the first respondents advising the appellant's counsel before the submissions were prepared that it would make the concession.
   
7. In the circumstances the appellant is awarded costs of $350 payable by the first respondents.
   
8. Accordingly the appeal is allowed and the matter is remitted back to the High Court to be heard on its merits.
   
9. The first respondents are ordered to pay costs of $350 to the appellants. These costs are to be paid from the sum held by the Court for security for costs and the balance is to be refunded to the appellant.
   

Paterson JA

Blanchard JA

Handley JA