Bank of Kiribati v Corbett [2004] KIHC 48; Civil Case 04 of 1999 (18 March 2004)

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

Civil Case 4 of 1999

Between:

BANK OF KIRIBATI
Plaintiff

And:

CHARLES FREDERICK CORBETT
Defendant

For the Plaintiff: Mr Daniel Gorman
For the Defendant: Mr Banuera Berina

Date of Hearing: 18 March 2004

MEMORANDUM

The taxation of costs in this action had been fixed for this morning.

When I read the papers preparatory to going into court to act as taxing master, I found that Mr Gorman, now acting for the plaintiff Bank, was to apply for leave to appeal against my Order of 23^rd May 2001, allowing the defendant his costs to 24^th May 2001 on the party and party scale, in any event.

Mr Gorman had accompanied his application with lengthy, well researched submissions, supported by many authorities. The gravaman of these submissions was that I had wrongly exercised my discretion in making the Order.

The answer to the submissions lies in the Minutes of Settlement dated 6^th June 2001 agreed by the parties, exhibited to Mr Gorman's affidavit in support of his application:-

Therefore it is agreed:

......C The present rights of the parties to Costs as ordered in any proceedings in this action up to and including 24 May 2001 are not affected hereby, and barring resolution to those Costs, the processes of taxation remain alive; ......

It would be monstrous to think that the then Solicitor General, Mr David James, for the Bank, if he had known of the authorities which Mr Gorman cited (which Mr Gorman asserted Mr James did not) had had some secret reservation about the agreement: if Mr James had said to himself, "Ha! Ha! Although I appear to have accepted the Costs Order made on 23^rd May, nevertheless, despite this agreement I know I can go ahead and appeal against it". I am quite sure that Mr James would never have entertained such a thought. The meaning of clause C (perhaps it could have been more felicitously worded) was that the defendant would have his costs up to the 24^th May, either to be agreed or taxed. The plaintiff is bound by that agreement.

I refused the application for leave to appeal and proceeded to tax the defendant's bill. Mr Berina conceded that his client was not entitled to any costs for setting aside the default judgment. After that concession I taxed the bill, item by item, allowing it at $11,629.50.

Dated the 18^th day of March 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice