In re the Estate of Victor Eoaeo [1999] SBHC 65; HC-CC 130 of 1996 (17 June 1999)

HIGH COURT OF SOLOMON ISLANDS
HC-CC No: 130/96

IN THE ESTATE OF AND APPLICATION FOON FOR
LETTERS OF ADMINISTRATION
OF THE ESTATES OF VICTOR EOAEO (DECEASED) INTESTATE

HEARING: 8TH JUNE 1999
JUDGMENT: 17TH JUNE 1999

<

SOL-LAW FOR THE ADMINISTRATRIX
A. TALASASA FOR LUCY IKA (OKA (OBJECTOR)

PALMER J: This is an application by Notice of Motion filed 14th May 1999 on behalf of the Applicant (the Administratrix) for the following orders:

1. & p;&nssp&nbsp Fip; Final judgment be ed ered in this matter for the Adminstratrix, Maria Eiyedada Eoaeo.

2. &bsp; The ord the Chief Justice tice made herein on 11 November, 1996 be permanently stayed.

3. &nbsp &nbbp;&nThp; nterim injunctjunctions granted by Mr Justice Palmer on 19 December, 1996 that:-

class="MsoNoMsoNormal" style="text-indent: -34.35pt; margin-left: 106.35pt; margin-top: 0; margin-bottom: 0"> a) nbsp; Philip Ttgavoe , btrained ined until further order from administering the estate of the deceased; and

(b) ;&nbssp; Luc; Luc; Lucy Ikay Ika, be restrained until further order from selling or otherwise dealing with parcel numbers 191-001-50, 191-001-60, and 191-035-53; and

(c) &nnbsp; Ikcy be , be restraestrained until further order from dealing with the shares in Kukum Development Company Limited o of tsets e company;

are pert.

4. ;&nbssp; &nsp;&nsp; Lucy Ika pay thts of the sthe said Maria Eiyedada Eoaeo of and in connection with this actncluding any reserved costs and costs in connection with this motion on an indemnity nity basis.

5.  p;&nbbsp; bsp; bsp; Such further orrother orders to this Honourable Court may seem meet.

Learned Counsel, Mr Talasasa for the Objector does not take obje objection to orders sought in paragraphs 1 to 3. The Orders sought in respect of paragraphs 1 to 3 accordingly must be granted.

Objection is raised only in respect of paragraph 4; the question of costs on indemnity basis. It must be borne in mind however, the question of costs had already been determined in the Order of Kabui J. issued on 26th April 1999, which order states as follows:

"Costs of and incidental to this Application be paid by Lucy Lucy Ika, the Objector."

The issue before this Court accordingly is not to determine the issue of costs but whether costs against Lucy Ika should be paid on an indemnity basis. The submission therefore by learned Counsel, Mr Talasasa for the Objector that costs should be varied by this Court to be costs in the estate of the deceased is not relevant. This Court does not have jurisdiction to vary the order for costs made by his Lordship Kabui J. Even if it was an interlocutory order, the order made for costs was a final order in respect of that application. Accordingly if the Objector disagrees, the only option available is by way of appeal. The cases Re Mills Estate: Ex parte Commissioner of Work and Building [1886] UKLawRpCh 209; (1886) 34 Ch. D. 24 and Nolk v. Austin (1918) 25 CLR 519, relied on by learned Counsel for the Objector thus do not apply in the circumstances of this case.

It is important to appreciate that the order for costs issued by Kabui J. pertained to the application for grant of letters of administration and any other matter incidental to that application in which no order for costs had been issued. This would include reserved costs. Interlocutory applications however in which no order for costs had been issued by this Court are to be excluded. For instance, the order made in respect of costs in the Summons filed by Lucy Ika on 28th September 1998, in which his Lordship Kabui J. ordered that no costs were to be paid, should be excluded (see copy of the judgment delivered on 8th February 1999 annexed to the affidavit of John George Katahanas filed 14th May 1999 and marked "JK1")

The only outstanding issue before this Court accordingly is whether ther costs should be awarded on an indemnity basis as submitted by learned Counsel Mr McQuire, or on another basis. That this Court has power to order costs on indemnity basis is not in dispute (see Order 65 Rule 1 of the High Court (Civil Procedure) Rules, 1964).

COSTS ON INDEMNITY BASIS.

Learned Counsel for the Applicant relies on the case of EMI Records Ltd -v- Ian Cameron Wallace Ltd & Another (1982) 3 WLR 245 for the submission that the Court should award costs on an indemnity basis. Unfortunately that case does not address the issue pertinent to this case, under what circumstances costs on indemnity basis may be awarded against the defendant. All that was determined in EMI Records Ltd (ibid.) pertained inter alia, to the question whether the court had power to order a defeated litigant to pay costs to the winner on an indemnity basis. It was held inter alia, in that case that the Court had jurisdiction in contentious proceedings to order the unsuccessful party to pay the successful party's costs on an indemnity basis. The issue of jurisdiction however is not disputed in this case. The case relied on by the Applicant accordingly is also not directly on the point.

An award of costs on an indemnity basis can be granted only where special circumstances warrant (see case of Re Talk Finance and Insurance Services Pty Ltd [1994] 1 QdR 558, 559-560). The issue for consideration thus is whether special circumstances exist here to justify an award of costs on an indemnity basis. What special circumstances therefore are relied on here?

p class="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0"> Respectfully, I find two grounds relied on in the submissions of learnedarned Counsel for the Applicant. The first pertained to the judgment of Kabui J. delivered on 8th February 1999 in Civil Case 29 of 1997 and the issue of an order granting letters of administration on 26th April 1999. Following that a letter was written by Sol-Law (Solicitors for the Applicant) to Mr Talasasa dated 30 April 1999 enclosing a draft consent order (see annexure "JK3" to affidavit of John George Katahanas filed 14 May 1999). That letter pointed out that the application of the Objector in Civil Case number 130/96 was bound to fail and that they felt it was only proper in the circumstances for a consent order to be considered and signed. They pointed out also that if an application were to be made to court for orders, they would claim costs on an indemnity basis. Respectfully, I do not agree that amounts to a special circumstance. The fact the Respondent has not co-operated or refused to sign the consent order does not necessarily mean she should be penalised by costs on an indemnity basis. It has always been open to the Applicant to bring an application to court for the necessary orders in the event the Objector refuses or for any reason declines to sign the consent order. It would be unfair and unjust in the circumstances, for this Court to impose costs on an indemnity basis which would have the effect of punishing the Respondent merely because she had not signed the consent order (see Gundry v. Sainsbury [1910] UKLawRpKQB 32; (1910) 1 KB 645). Mr Talasasa pointed out he could not provide a reply as his client did not respond to the letter within the time requested. I am not satisfied the failure by the Respondent in the circumstances of this case warranted an award of costs on an indemnity basis.

The d ground relied on appears to have been based on the submisubmission that the application was without basis right from the beginning. Unfortunately, that is not entirely correct. There is evidence before this court which showed that the grant of letters of administration to Philip Tegavota in Civil Case Number 130 of 1997 was justifiable in the circumstances. See judgment of Awich J. delivered on 8th August 1997 in Civil Case Number 29 of 1997 at page 8. His Lordship states:

"When the case came back tot, it was listed before anoe another judge who, in my view, properly granted the administration of the estate to Mr Tegavota on 8.11.1996. Mr Tegavota had produced a copy of a letter, dated 27.4.1989, said to have been written by Mr Lui Eoaeo, the son of Victor Eaoea, renouncing all claims over the parcels of land and in the company, Kukum Development Limited, in favour of Mr Ika. He also had produced a copy of a letter dated 15.10.1978, said to have been written by Eoaeo to Ika, acknowledging that the parcels of land and shares in the company had been bought by Ika. There was prima facie evidence to clear off the spouse and relatives of the deceased, Eoaeo and to pass over them."

lass="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0"> When the matter came before his Lordship Awich J. on 28th July 1997, he found that the widow, Maria Eoaeo was not aware of the application and did not consent to Mr Tegavota been granted letters of administration. The grant of letters of administration to Philip Tegavota accordingly were revoked. The matter next came before his Lordship Kabui J. in respect of a Summons filed by the Objector (Lucy Ika) on 28th September 1998. Her Summons however was dismissed by Kabui J. in his judgment delivered on 8th February 1999. From what has been stated above, I am not satisfied Mrs Ika's objection can simply be written off as frivolous, ludicrous and without any basis in law. I am not satisfied this ground can also support the application for costs on an indemnity basis.

In applications for costs, it is more common to bring the matter before the same Judge who had previously dealt with the application as he would be in a better position to appreciate the nature and scope of the application and whether a higher scale of costs is warranted. On what has been presented before me I am satisfied costs should be based on a party and party basis against Lucy Ika.

ORDERS OF THE COURT:

1. nbsp; p; &nbp; Final judgment tered in thin this matter for the Administratrix, Maria Eiyedada Eoaeo.

b>

2. The order of the Chuef Je tice made on 11 November 1996, be permanently stayed.

>

3. &nbssp;&nnbsp;&nsp; Tsp; The interim injons grns granted by Mr Justice Palmer on 19 December 1996 that:-

(b) (b) Lucy Ika, be restrained uftil further order from selling or otherwise dealing with parcel numbers 191-001-50, 191-001-60, and 191-035-53; and<

(c) &(c) Lucy Ika, be restrained until further order from dealing with the shares in Kukum Development Company Limited or any of the assets of the company;

are permanent.

4. &&nsp;; Cspts ase granted ated against Lucy Ika on party and party basis.

&an"> nbsp;

THE COURTspan>