Segum v Villarosa [2009] PGNC 147; N3755 (1 October 2009)

N3755

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 788 OF 2008

BETWEEN:

JONES SEGUM
Plaintiff

AND:

NOEL VILLAROSA
First Defendant

AND:

HENTEK LIMITED
Second Defendant

Waigani: Paliau, AJ
2009: 21st September & 01st October

Practice and Procedure – Discovery – Parties obligation to comply with Notice for Discovery – Order 9 rr 2, 15 of National Court Rules – Court has power to strike out defence or strike out Writ of Summons for non-compliance.

Practice and Procedure – Discovery – Costs on indemnity basis – Party forewarned – Default on obligation for discovery repeated and chronic – Application ill-conceived and abuse of process – Party in default continually advised of its obligation – Party in default breached Court Orders to comply with obligations – Significant costs incurred as a result of non-compliance.

Cases cited:

Papua New Guinea cases
Public Officers Superannuation Fund Board v. Sailas Imanakuan (2001) SC677
Aisip Duwa v. Ronald Moyo Senge [1995] PNGLR 140
Credit Corporation (PNG) Limited v. Gerald Jee [1988-89] PNGLR 11
Ace Guard Dog Security Services Ltd v. Lindsay Lailai (2003) N2459
PNG Waterboard v. Gabriel Kama (2005) SC821
Umbu Waink v. MVIT [1997] PNGLR 390
Peter Yama v. Privation Commission & 2 Ors; WS 250 of 2002
Don Pomb P. Polye v. Jimson Sauk Papaki and Electoral Commission of PNG – SC651

Overseas case
Donaldson v. Harric [1973] 4 SASR 299

Counsels:
C. Narokobi, for the Plaintiff
J. Brooks, for the Defendants

RULING

1st October, 2009

1. PALIAU, AJ: There are two Notices of Motion filed in this proceeding. One is by the Plaintiff and the other by the Defendants. The parties consented to have the Plaintiffs Notice of Motion dealt with first. However, in the process of arguments, both counsels touched on issues relative to both Notices of Motions. I outlined hereunder the Notice of Motions.

Plaintiffs Notice of Motion

2. The Notice of Motion filed by the Plaintiff on 4th September 2009 seeks to strike out the Defence of the Defendants for failure to produce documents pursuant to a Notice to Produce.

Defendant’s Notice of Motion

3. The Notice of Motion filed by the Defendants on 15th September 2009 seeks to strike out the Plaintiffs claim for failure to give discovery.

EVIDENCE

4. For both these Motions the Plaintiff rely on:

(1) Notice to produce documents filed on 29th May 2009; and

(2) Affidavit of Camillus S. N. Narokobi filed on 4th September 2009; and

(3) Letter from Gadens Lawyers of 29th June 2009 and 17th July 2009; and

(4) Two letters from IPA (Annexures D and E).

5. For both these Motions the Defendants rely on:

(1) The affidavit of Nick Pitoi sworn on 9th September 2009 and filed 15th September 2009; and

(2) The affidavit of service of Peter Rauka Oa sworn on 17th September 2009.

BACKGROUND FACTS

6. On 24th April 1994 the Plaintiff and the First Defendant formed an Electrical Company namely Hentek Limited (the Second Defendant) which was incorporated and registered on 25th July 1994.

7. Both the Plaintiff and the First Defendant were directors of the Second Defendant. The Plaintiff held 80% shares, the Second Defendant held 10% and 10% allocated to another person.

8. On 30th June 1997, the Plaintiff was removed as a shareholder and director of the Second Defendant.

9. In these proceedings the Plaintiff claims that the First Defendant never disclosed that the Plaintiff was removed as a director.

10. The claim against the First Defendant is essentially based on unlawful and illegal removal of the Plaintiff as a shareholder and director of the Second Defendant as there was no meeting of shareholders and there was no consent by the Plaintiff to forego his shares.

11. The Plaintiff claim damages and or loss against the Second Defendant for fraud for removing him as a director and assigning his shares to another person.

12. On 9th July 2008, the Plaintiff filed a Writ of Summons seeking relief against the Defendants.

13. Notice of Intention to Defend and Defence of the Defendants were filed and served on the Plaintiff respectively.

14. A chronology of events that followed after the Notice of Intention to Defend and Defence of the Defendants are well set out in the Defendants’ Submission which I adopt and reproduce.

15. Prior to the matter coming to Court, the defendants wrote to the plaintiff on 1st December 2008 enclosing certain documents showing that the plaintiff had resigned as a director of the second defendant on 2nd June 1997 and transferred his shares in the second defendant on 9th June 1997.

16. The letter stated that the claim was barred by the operation of the Frauds and Limitations Act 1998 and put the plaintiff on notice of the intention to seek to dismiss the claim and seek indemnity costs – see annexure "NP 11" to the affidavit of Mr. Pitoi.

17. The Plaintiff rejected the matters put by the defendants and the matter has progressed.

Orders of Justice Kandakasi on 5th May 2009

18. On 5th May 2009, this matter was listed for direction before His Honour Justice Kandakasi. His Honour was particularly interested in how the plaintiff sought to explain the fact that his claim appeared time barred.

19. After hearing submissions from the parties, His Honour made the following Orders:

a. Plaintiff to file and serve List of Documents by 22nd May 2009, all relevant documents to be discovered.

b. Defendants to give discovery by List of Documents by 26th May 2009.

c. Registrar of Companies shall produce a certified copy of its records in relation to the second defendant company by or before 26th May 2009.

d. Parties to consider the effects of documents given by discovery with a view to settling this matter out of Court, failing which they are to identify meritorious issue for trial.

e. Plaintiff to consider the issue of time bar and come ready to argue position when matter next comes before the Court.

f. Matter is listed for directions on 11th June 2009 for mention and possible resolution.

20. Pursuant to the Orders made by His Honour Justice Kandakasi, the defendants filed and served a Notice of Discovery on the plaintiff, requiring that the plaintiff give verified discovery. The affidavit of service of that Notice of Discovery is annexed to the affidavit of Mr. Pitoi at "NP 1" and the Notice of Discovery appears as document no. 10 on the Court file.

Non-Compliance with Orders of 5th May 2009

21. On 21st May 2009, Gadens telephoned Mr. Narokobi to make enquiries about a copy of the sealed Orders as made by His Honour Justice Kandakasi on 5th May 2009. Mr. Narokobi advised that he had not filed the formal Orders made by Justice Kandakasi on 5th May 2009.

22. Mr. Narokobi also acknowledged that he had received the Notice for Discovery served on his office. Mr. Narokobi was advised that the parties needed to comply with the Orders of His Honour Justice Kandakasi and Gadens asked Mr. Narokobi to take out those Orders and serve them.

Discovery by Defendants

23. On 25th May 2009, the plaintiff served a Notice for Discovery on Gadens Lawyers requiring the defendants to give verified discovery.

24. On 26th May 2009, one day after being served the Notice for Discovery, the defendants filed a verified List of Documents – see annexure "NP 2" to Mr. Pitoi’s affidavit.

Orders of Justice Kirriwom of 11th June 2009

25. On 11th June 2009, this matter was again listed for directions before His Honour Justice Kirriwom.

26. Following discussions between the parties and the Court, His Honour ascertained that the plaintiff had not filed or served a List of Documents. His Honour also noted that no formal Orders had been taken out with respect to the Orders of Justice Kandakasi previously made on 5th May 2009.

27. His Honour Justice Kirriwom made the following Orders:

a. Plaintiff to take out Orders of Justice Kandakasi as made on 5th May 2009 and serve them on the defendants and the Registrar of Companies within 7 days by 18th June 2009.

b. Plaintiff has 7 days to file and serve a List of Documents.

c. Parties shall then comply with directions of 5th May 2009, in particular Order 5 re discussions on settlement and identifying legal issues for trial.

d. Cost of today’s appearance to be paid by the Plaintiff to the Defendants.

28. A true copy of the Orders made by His Honour Justice Kirriwom is annexed hereto and marked "NP 4".

List of Documents Served by Plaintiff and Sealed orders of 5th May 2009

29. On 11th June 2009, Gadens Lawyers were served with a List of Documents on behalf of the Plaintiff, together with a sealed order as made on 5th May 2009 by Justice Kandakasi – see annexures "NP 5" and "NP 6" to Mr. Pitoi’s affidavit.

30. The Orders are dated as entered on 15th May 2009. This is despite the fact that on 21st May 2009, Mr. Narokobi advised Gadens that he had not taken out those Orders.

31. On 11th June 2009 this issue was ventilated before His Honour Justice Kirriwom. His Honour reviewed the court file and made orders directing that the plaintiff take out the previous Orders of His Honour Justice Kandakasi of 5th May 2009 and serve them on both the defendants and the Registrar of Companies.

32. Given the above two circumstances the defendants cannot understand how the orders are dated as entered on 15th May 2009. The date of the entry of the orders appears irregular.

33. The List of Documents served by the Plaintiff on 11th June 2009 states that the List had been filed on 29th May 2009. This is despite the fact that on 11th June 2009, His Honour Justice Kirriwom took some time to review the file and noted that no List of Documents had been filed by the Plaintiff, a matter eventually conceded by Mr. Narokobi when the parties were in Court.

34. Importantly, the List of Documents filed by the plaintiff had been verified by Camillus Narokobi as lawyer for the plaintiff. This is contrary to the National Court Rules, specifically Order 9 Rule 3 and order 9 Rule 8.

Notice to Produce & Continued Failure to Give Discovery by the Plaintiff

35. On 11th June 2009, Gadens Lawyers received a letter from Narokobi Lawyers requesting that the Registrar of Companies provide the certified records of Hentek Limited – see annexure "NP 7" to the affidavit of Mr. Pitoi.

36. On 11th June 2009, Gadens lawyers sent a facsimile to Narokobi Lawyers in relation to the List of Documents served on behalf of the plaintiff. The letter noted that the Notice of Discovery required that the List of Documents be verified by the Plaintiff in accordance with the National Court Rules.

37. The letter from Gadens requested that a List of Documents be appropriately verified and that the plaintiff comply with the previous Orders of His Honour Justice Kandakasi as made on 5th May 2009 and the further Orders made by His Honour Justice Kirriwom on 11th June 2009 – see annexure "NP 8" to the affidavit of Mr. Pitoi.

Response to Notice to Produce – Letter of 29th June 2009

38. On 26th June 2009, the plaintiff served a Notice to Produce documents on Gadens Lawyers – see annexure "NP 9" to the affidavit of Mr. Pitoi "NP 10."

39. On 29th June 2009, Gadens Lawyers sent a letter to Narokobi Lawyers in response to the Notice to Produce. The letter enclosed all documents in the possession of the defendants relevant to the Notice to Produce.

40. The letter from Gadens lawyers also noted that the plaintiff had still not filed and served an appropriately verified List of Documents in accordance with the two previous National Court Orders of 5th May 2009 and 11th June 2009 – see annexure "NP 10" to the affidavit of Mr. Pitoi.

41. This letter noted that the documents required by paragraph 4 of the Notice to Produce had already been sent to the Plaintiff under cover of letter dated 1st December 2008 – see annexure "NP 11" to the affidavit of Mr. Pitoi.

Plaintiff continually refuses to give Discovery

42. On 10th July 2009, Gadens Lawyers sent a further letter to Narokobi Lawyers. This letter noted that with respect to the Orders made on 5th May 2009, the Plaintiff was still in breach of those Orders and the subsequent Orders of 11 June 2009 because a List of Documents appropriately verified by the Plaintiff had still not been served – see annexure "NP 13) to the affidavit of Mr. Pitoi.

43. On 16th July 2009, Gadens lawyers received a further letter from Narokobi Lawyers dated 7th July 2009. The letter advised that the plaintiff would amend the List of Documents and file and serve the document on Gadens Lawyers – see annexure "NP 14" to the affidavit of Mr. Pitoi.

Plaintiff claims that Notice to Produce has been complied with

44. On 16th July 2009, Gadens lawyers received a further letter from Narokobi Lawyers dated 8 July 2009. This letter asserted that the defendants had 7 days to comply with the Notice to Produce previously served and that "with regard to our verified list you are free to attend at our office to excess documents" – see annexure "NP 15" to the affidavit of Mr. Pitoi.

45. On 16th July 2009, Gadens Lawyers received a further letter from Narokobi Lawyers dated 10th July 2009. This letter advised that Mr. Narokobi’s firm had checked with the IPA but had not located certain documents. The letter then stated that in the circumstances the defendants’ had not complied with the Notice to Produce – see annexure "NP 16" to the affidavit of Mr. Pitoi.

46. On 17th July 2009, Gadens lawyers wrote a letter to Narokobi Lawyers confirming the plaintiff should serve an appropriately verified List of Documents so the matter could proceed – see annexure "NP 17" to the affidavit of Mr. Pitoi.

Further Response to Notice to Produce – letter of 17th July 2009

47. On 17th July 2009, Gadens Lawyers sent a further letter to Narokobi Lawyers in relation to the Notice to Produce. This letter from Gadens noted that neither the defendants, nor Gadens Lawyers, could speak for whatever records were retained by the office of the Registrar of Companies.

48. The letter noted that the defendants had complied with the obligation of Discovery whereas the plaintiff had continually refused to comply with his obligations for discovery and the Orders of the National Court made by Justice Kandakasi on 5th May 2009 and then Justice Kirriwom on 11th June 2009.

49. In relation to the Notice to Produce, Gadens noted that all the relevant documents had been sent to Narokobi Lawyers under cover of letters dated 1st December 2008 and 29th June 2009 and sought to clarify once and for all that there were no other documents held by the defendants relevant to either the Notice to Produce or the defendants’ discovery obligations.

50. Importantly, the letter to Narokobi Lawyers advised that any originals of the relevant documents were not in the possession of the defendants as the documents had been lodged with the Office of the Registrar of Companies in 1997, and that the defendants had at no time alleged that there was a "resignation letter" or "letter" related to the transfer of shares."

51. Finally, the letter concluded that despite many efforts to get an appropriately verified List of Documents, the plaintiff had still not filed a List of Documents in accordance with the National Court Rules – see annexure "NP 19" to the affidavit of Mr. Pitoi.

Further Requests from the Plaintiffs

52. On 11th August 2009, Gadens Lawyers received a letter from Narokobi Lawyers dated 3rd August 2009 seeking details of remuneration, if any, for the alleged transfer of shares and the original form of share transfer – see annexure "NP 20" to the affidavit of Mr. Pitoi.

53. On 11th August 2009, Gadens Lawyers received further correspondence from Narokobi Lawyers dated 7th July 2009, again requesting details of remuneration, if any, for the alleged transfer of shares and the original form of share transfer. The letter from Narokobi Lawyers noted that the IPA did not hold documents as "you said they had" – see annexure "NP 21" to the affidavit of Mr. Pitoi.

Further Efforts by Defendants to Clarify Position

54. On 12th August 2009, Gadens Lawyers again wrote to Narokobi Lawyers. The letter addressed two issues as follows:

i) Remuneration for transfer of shares. The letter referred Mr. Narokobi to paragraph 11(e) of the Defence filed by the defendants.

ii) The originals of share transfer documents. Gadens Lawyers again repeated that the defendants did not have the original documents that had been lodged with the IPA. The letter noted that neither Gadens nor the defendants had ever told anybody that they had the originals of those documents and whatever records were retained by the IPA, was a matter for the IPA. The letter noted that the assertions made by Narokobi Lawyers in relation to these issues were tiresome and somewhat absurd. Finally, the letter noted that the company extract of Hentek in the possession of the plaintiff and the historical extract of Hentek discovered by the defendants both indicated that according to the IPA"s records, the plaintiff had ceased to be a Director and Shareholder of Hentek in June 1997.

55. Finally, the letter yet again stressed that the defendants had fully complied with their obligations for discovery and in relation to the Notice to Produce, whereas the plaintiff was continually in breach of the Court Orders of 5th May 2009 and 11th June 2009 and had still not filed and served an appropriately verified List of Documents – see annexure "NP 22" to the affidavit of Mr. Pitoi.

56. On 7th September 2009, Gadens Lawyers was served with a Notice of Motion seeking to strike out the Defence of the defendants due to non compliance with the Notice to Produce.

57. On 9th September 2009 Gadens sent yet another letter to Narokobi Lawyers in relation to the Notice to Produce. The letter once again stressed that the defendants had fully complied with the Notice to Produce, did not have any originals of documents lodged with the IPA and would seek indemnity costs if the plaintiff proceeded with his Notice of Motion.

58. The letter also noted the continued failure by the plaintiff to file and serve an appropriately verified List of Documents and again asked that the Plaintiff serve a List of Documents – see annexure "NP 23" to the affidavit of Mr. Pitoi.

59. The Plaintiffs Notice of Motion seeks to strike the Defence for failure to comply with the Notice to Produce. And the Defendants’ Notice of Motion seeks to strike out the Plaintiffs claim for failure to give discovery.

60. Both Motions rely on Order 9 Rule 15(1)(a) and (b) of the National Court Rules which is outlined below:

" 15. Default.

(1) Where a party makes default in filing or serving a list of documents or affidavit or other document, or in producing any document as required by or under this Division, the Court may make such orders as it thinks fit, including -

(a) if the party in default is a plaintiff – an order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceedings; or

(b) if the proceedings were commenced by Writ of Summons and the party in default is a defendant – an order that his defence be struck out and that judgment be entered accordingly.

61. The issues to be determined here are; -

(1) In relation to the plaintiffs Notice of Motion, whether the defence of the Defendants’ be struck out for failure to produce documents in accordance with the Notice to Produce by the Plaintiff.

(2) In relation to the Defendants Notice of Motion, whether the proceedings be dismissed or struck out for failure to give discovery.

(3) Whether costs shall be awarded to the Defendants on an indemnity basis.

62. First, I will deal with the issue in relation to the Plaintiffs Notice of Motion. The Plaintiff contends that the Defendants have failed to produce the originals of the letter of resignation by the Plaintiff as a director and the Plaintiffs share transfer document. The Plaintiff relied on the Notice to produce documents filed on 29th May 2009, affidavit of Camillus S. N. Narokobi filed on 4th September 2009, letters from Gadens Lawyers of 29th June 2009 and 17th July 2009 and letters from IPA.

63. The Defendants on the other hand contend that they have produced copies of the document together with other documents in response to the Plaintiffs Notice to Produce documents in their letters of 1st December 2008 and of 29th June 2009.

64. The Defendants further assert in their letter of 17th July 2009 that they have complied with the obligation for discovery as per paragraph 65 above and there were no other document held by the Defendants.

65. The Defendants also advised the Plaintiff that any originals of the relevant documents were not in their possession as they had been lodged with the Registrar of Companies (IPA) on 30th June 1997.

66. Even then the Defence of the Defendants does not refer to any letters at all. Paragraph 9(h) of the Defence only states that the Plaintiff voluntarily resigned as a director and voluntarily transferred his shares in the Second Defendant to Mr. Nigel Wesley.

67. The Defendants therefore do not have in their possession the originals of the relevant documents. Therefore they were unable to produce in compliance with their obligations under the Rules. It is as simple as that. They were unnecessarily subjected to produce originals of relevant documents which were no longer in their possession. Copies of the originals were already produced to the Plaintiff. The Plaintiff was constantly advised, told and reminded of this fact by the Defendants to no avail.

68. The Defendants in my view had produced all the documents they had with them and had complied with the Notice to Produce, thus fully complied with the Notice for Discovery.

69. It is also my view that a Notice to Produce must only be utilized when a document is referred to in a pleading or affidavit that has not been discovered. In the present case, the Notice to Produce seeks documents that have been discovered. The documents being sought are documents not referred to in any pleading or affidavit.

70. The Notice to Produce and the application by the Plaintiff to strike out the Defendants’ defence under Order 9 Rule 15(1) (b) are misconceived and I consider as an abuse of the Court’s process. In the circumstances I will refrain from exercising the Court’s discretion to strike out the Defendant’s defence.

71. I will now deal with the second issue in relation to the Defendants’ Notice of Motion. The Defendants’ Notice of Motion is to dismiss the Plaintiffs claim for failure to give discovery.

72. Under Order 9 Rule 2 of the National Court Rules, a party is required to give discovery of documents between that party and the party giving notice for discovery.

73. Order 9 Rule 15(1)(a) of the National Court Rules is in the following terms:

(1) Where a party makes default in filing or serving a list of documents or affidavit or other document, or in producing any document as required by or under this Division, the court may make such order as it thinks fit, including -

(a) If the party in default is the plaintiff – an order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceedings.

74. There is in existence ample authority that have interpreted the provisions of Order 9 Rule 15 of the National Court Rules. The leading case authority is the Supreme Court case of Public Officers Superannuation Fund Board v. Sailas Imanakuan (2001) SC 677. The Court here also considered other overseas and Papua New Guinean authorities which stressed the importance of discovery and the powers that the Court may exercise if a party does not comply with its obligation for discovery: See Aisip Duwa v. Ronald Moyo Senge [1995] PNGLR 140; Donaldson v. Harric [1973] 4 SASR 299; Credit Corporation (PNG) Limited v. Gerald Jee [1988-89] PNGLR 11.

75. The Supreme Court was of the view that under Order 9 Rule 15 of the National Court Rules, the Court has the power to order that a Writ of Summons or a Defence be struck out, where a party is in default.

76. It also held that:

"there is no pre-requisite that a party must first seek a Court Order to enforce discovery before the default provisions can be availed of..."

"in an action commenced by Wirt of Summons default action can be sought and there is no pre-condition that a court order must first be sought; the wording in the Rule is "as required by or under this division" and the words in the rule makes no reference to "as ordered."

77. It is evident from the chronology of events that the Plaintiff has defaulted to give verified discovery. Even after the National Court ordered to do so on the 5th May and 11th June 2009.

78. Not only did it failed to give verified discovery, but the list of documents was verified by Mr. Narokobi himself and not the Plaintiff. This is not in compliance with Order 9 Rule 8(1)(a) of the National Court Rules where it requires the party to verify not any other person. I therefore accept the submission by the Defendants that the Plaintiff has not given discovery at all.

79. In my view the Plaintiff has defaulted in complying with its obligation to give discovery, even after being reminded by the Defendants’ and not complying with two Court Orders. This is akin to repeated abuse and can be regarded as chronic: See Ace Guard Dog Security Services Ltd v. Lindsay Lailai (2003) N 2459.

80. In the circumstances, I will exercise the Court’s discretion under Order 9 Rule 15 of the National Court Rules and strike out the claim made by the Plaintiff.

81. The final matter for my determination is the issue of costs. It is trite law that awarding of costs is at the discretion of the Court. The Plaintiff submits that costs be in the course. Mr. Narokobi did not assist the Court at all in his submission.

82. The Defendants submit that costs not only be awarded to them but it be on an indemnity basis. The basic reasoning is that the Plaintiff has put the Defendants to incur unnecessary costs by prolonging to fast track its action in not complying with its obligation for discovery. The plaintiff was forewarned by the Defendants to claim costs on an indemnity basis if it continues to default in its obligation for discovery. The Plaintiff continued the default even after two Court Orders to give discovery. They rely on Order 22 Rules 35 and 65 of the National Court Rules.

83. It is very clear from the facts that the Defendants have forewarned the Plaintiff if it continues to default in not giving discovery. On that basis the Defendants are quite entitled to costs on an indemnity basis: See PNG Waterboard v. Gabriel Kama (2005) SC 821.

84. If costs incurred because the Solicitor is responsible, the Solicitor must be given an opportunity to be heard and for the Court to order in accordance with Order 22 Rule 65, it must be very sure that the Solicitor was at fault and negligent in the carriage of his client’s case: See Umbu Waink v. MVIT [1997] PNGLR 390.

85. Costs on an indemnity basis are ordered by the Court if the Defendants have been put to costs without lawful justification: See Peter Yama v. Privation Commission & 2 Ors; WS 250 of 2002.

86. As I have ruled that the application by the Plaintiff was an abuse of process, costs should be awarded on a Solicitor/Client basis: See Don Pomb Polye v. Jimson Sauk Papaki and Electoral Commission of PNG – SC 651.

87. I consider that all the above cases are relevant in the circumstances of this case and the Defendants are awarded costs on an indemnity basis. The circumstances are:

(1) The application by the Plaintiff is ill-conceived and an abuse of process.

(2) The defendants have done all they can to progress the matter, have fully complied with Discovery and the Notice to Produce.

(3) The defendants have continually pointed these matters out to the plaintiffs lawyer.

(4) The Plaintiff has ignored the two separate orders of the National Court and the repeated requests from the defendants.

(5) The defendants have done all they can to comply with their obligations and have patiently requested the plaintiff to comply.

(6) The defendants have forewarned the plaintiff of their intention to seek indemnity costs.

(7) The defendants have incurred significant costs in dealing with these matters, the result of continual non-compliance by the plaintiff;

(8) Significant costs have been incurred as a result of the unmeritorious application by the Plaintiff and the Plaintiffs continual failure to comply with is obligations for discovery.

88. As to whether Mr. Narokobi himself should be personally liable for the cost, I must give an opportunity to Mr. Narokobi to be heard before I am able to order in accordance with Order 22 Rule 65 of the National Court Rules. The defendants submit that Mr. Narokobi himself should pay indemnity costs as the Plaintiffs application has no merits at all. Mr. Narokobi has had these matters brought to his attention on many occasions and still brought this action before the Court.

89. Mr. Narokobi was given an opportunity to be heard and I am satisfied that he was not negligent in the carriage of this proceeding on behalf of his client. Mr. Narokobi is not personally liable to meet the costs of these proceedings.

90. In the circumstances I make the following orders; -

(a) The Notice of Motion dated 4th September 2009 by the Plaintiff pursuant to Order 9 Rule 15(1)(b) be struck-out, the Defendants defence is refused.

(b) The Notice of Motion dated 15th September 2009 by the Defendants pursuant to Order 9 Rule 15(1)(a) to struck out Writ of Summons is granted; and

(c) The Plaintiff is to pay the Defendants costs on an indemnity basis; and

(d) Cost to be paid on a Solicitor/Client basis and not to be met by Mr. Narokobi personally; and

(e) Parties are at liberty to apply giving each party two (2) days notice.

_____________________________

Narokobi Lawyers: Lawyers for the Plaintiff
Gadens Lawyers: Lawyers for the Defendants