Tierney v Hastings Deering (SI) Ltd [1990] SBHC 104; [1990] SILR 171 (9 August 1990)

[1990] SILR 171

IN THE HIGH COURT OF SOLOMON ISLANDS]

Civil Case No. 36 of 1990

TIERNEY

v

HASTINGS DEERING (SI) LIMITED

High Court of Solomon Islands
(Ward CJ)
Civil Case No 36 of 1990

Hearing: 5th July 1990
Judgment: 9 August 1990

Security for costs - Plaintiff resident outside jurisdiction - costs against the Plaintiff-appeal against Registrar's order.

Facts:

The Defendant applied for security for costs on the ground that the Plaintiff resided outside the jurisdiction. The Plaintiff did not admit he resided outside the jurisdiction, although counsel for the Plaintiff knew as a fact that his client resided abroad, and put the Defendant to strict proof, resulting in the application being adjourned. At the adjourned hearing the Registrar ordered that the costs be paid by the Plaintiff. The Plaintiff appealed on the question of costs.

Held:

1. The decision to award costs in this case was discretionary and on the evidence before the Registrar, he was entitled to make the award against the Plaintiff. The court would only interfere if such decision was wrong or was not based on evidence.

2. The Plaintiffs conduct in requiring proof in the present case resulted in an unnecessary adjournment since the matter he sought to be proved was in his hands. He should therefore bear the costs.

Cases referred to:

None

Legislations referred to:

None

F. Waleilia for Plaintiff
J. Corrin for Defendant

WARD CJ: This is an appeal against a ruling of the learned Registrar that the plaintiff should pay the costs on an application by the defence for security for costs made because the plaintiff resided outside the jurisdiction.

It appears that the original writ of summons mis-stated the address of the plaintiff. When the parties came to court for the application for security for costs, Mr. Waleilia for the plaintiff, did not admit his client lived outside the jurisdiction and put the defendant to strict proof. Miss Corrin had no evidence available at the time and had to seek an adjournment in order to obtain affidavits.

The question of costs was reserved and when the Registrar finally made an order he awarded all the costs up to that time to the defendants.

Mr. Waleilia has filed a number of grounds and at the hearing explained his appeal is confined to the costs of that adjourned hearing. He states that a party is always entitled to put the other side to proof, the burden was on the applicant to prove the plaintiff resided outside the jurisdiction and she was not ready to do so. Thus that hearing was adjourned because of her default.

I accept the first two propositions and it is clear that Miss Corrin should have been prepared to present evidence to support her application. She suggested however that, had Mr. Waleilia admitted what he must have known was a fact i.e. that the plaintiff resided abroad, the application need not have been adjourned.

The learned Registrar took the view that, in those circumstances, the matter was in the hands of the plaintiff and he should bear the costs.

In considering the award of costs, the Registrar has a discretion. He is entitled to weigh up the overall effect of the actions of both parties. If, having done so, he rules on the matter, this court will normally only interfere if the decision is wrong or was not based on the evidence before the Registrar.

I accept that Miss Corrin should have been prepared to support her application with evidence. That she failed to do so would normally be penalised with costs. Equally the plaintiff is always entitled to demand strict proof. However, where the matter he seeks to be proved is clearly against him, he must realise he may be ordered to pay the costs thus incurred. The learned Registrar felt that the plaintiff's conduct by seeking proof resulted in an unnecessary adjournment. When reaching his decision, he also considered the failure of the defence to be ready with affidavits in support.

There is support for the suggestion in such a case, that the costs of that hearing should be costs in the cause but the Registrar is entitled to consider all the relevant matters and balance them. In exercise of his discretion he felt the plaintiff should pay the costs rather than to award them against the defendant or make them costs in the cause. He had grounds for making such a decision and I will not interfere.

Appeal dismissed.