Kuve v Ragoso [2001] SBHC 76; HC-CC 232 of 1999 (23 October 2001)

HIGH COURT OFMON ISLANDS

Civil Case Number 232 of 1999

MARLON KUVE

v

HERICK RAGOSO AND OTHERS

Before: Frank O. Kabui, J

Civil Case Number 232 of 1999

Hearing: 19^th October 2001

Ruling: 23^rd October 2001

Mrs. Mr. A. Nori for the Defendants

RULING

(Kabui, J): By Summons filed on 17^th October 2001, the Defendants sought the following orders -

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1. & p;There bere be abridabridgement of time for hearing of this application.

2. &nbbsp;Tm of SBD 14 14 14,080 be paid to Bridge Lawyers Solicitors out of the Joint Trust Account in the jopint names ofpartilicitbeing account number 4110077 held at the ANZ Bank.

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ass=lass="MsoNormal" style="text-indent: -28.5pt; margin-left: 64.5pt; margin-top: 1; margin-bottom: 1"> 3. & The ANZ ANZ Bank to effect thct the payment herein upon service on it of this order; and

langUS" s"font-sont-size: ize: 12.0p12.0pt">

4. & Costthistthis application to b to be paid by the Defendants from funds in the Joint Trust Account in a sum to be agreed if not to xed. class="MsoNormal" style="marg"margin-left: 36.0pt; margin-top: 1; margimargin-botn-bottom: tom: 1">

T Summons was subsequently superceded by a Notice of Motion filed on 19th October ober 2001 seeking the following orders - ote>

. &nbssp; &nsp;&nbp; The abringeme t of time fome for the hearing of this Notice of Motian;

2. &nbbsp;&&bsp;;TbspCoue turt turt to exercise its discretion to allow the legal costs of the defendants payable in pursuaf the Oof 10tober, 2001 to be based on Solicitor cl client ient scalescale;

3.  p;&nbbsp;&nsp; &nsp; The sum of SBD SBD 14,D 14,080 be paid to Bridge Lawyers, Solicitors, out of the Joint Trust Account in the joint names of the parties' Solicitors, being account number 4110077 held e ANZ in Honiara.

4. &&nsp;; Tsp ANZe Ban Bank to effect the payment herein upon service on it of this Order, and

5.  p; bsspan> The cost of the Defendants' application herein be paid by the Plaintiff in any event to be agreed, if not toaxed.n>

The Background

The trial in Civil Case No. 232/99 was to have taken place before me on Monday 8th October 2001 at 9:30 am in Court No. l. The notice of hearing was dated 3rd September 2001. All the witness on both sides was ready to give evidence at the trial. Just before the trial commenced, Counsel for the Plaintiff, Mrs. Tongarutu, informed the Registrar by letter dated 8^th October 2001 that she was in ill health and requested an adjournment of the trial to the next day, Tuesday 9th October 2001 at 10:00 am. Counsel for the Defendants, Mr. Nori, protested and said he would ask for costs for any adjournment. I adjourned the case for 9:30 am for Tuesday 9th October 2001 for mention. At 9:30 am the next day, the Plaintiff in person appeared in Court and sought further adjournment because his Counsel, Mrs. Tongarutu, was still unwell. He requested the adjournment for 9:30 am the next day, Wednesday 10th October 2001. I again adjourned the case for 9:30 am for the next day. At 9:30 am the next day, the Plaintiff again sought an adjournment for 9:30 am the next day, Thursday 11th October 2001. Counsel for the Defendants, Mr. Nori, objected. He suggested that the trial should be adjourned to a date to be fixed because the trial was fixed for 5 days and 3 days had already been wasted. He said he saw no point in commencing the trial and having to adjourn it again by Friday 5th October 2001. He said the other reason was that he would in Court in another case in the week following. He said the cost of the adjournment should be borne by the Plaintiffs. He said it meant having to send back the Defendants' 8 witnesses to the Western Province. He said his clients would incur more costs at the end of the day as a result of the adjournment. He therefore asked that costs for Monday to Wednesday be paid out of the joint trust fund. The Plaintiff did not oppose costs. I granted costs to the Defendants and adjourned the case for a date to be fixed. I signed the formal order on 11th October 2001. The Plaintiff has not paid Mr. Nori's bill of costs, which stands at $14,080.00. The Plaintiff had queried the cost of attendance at Court for 3 days and the relationship between this bill of costs and the sum of $15,000 allocated for the trial itself.

The tiffs Case

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The Plaintiffs case as put by his Counsel, Mrsarutu, is that the Plaintifintiff did not dispute the award of costs but rather the amount of costs. The reasons were set out in Mrs. Tongarutu's affidavit filed on 19th October 2001 and Exhibit "ANT 2" attached to her affidavit referred to above. In particular, the Plaintiff alleged that Court attendance on each day for 3 days was not more than 30 minutes and further sought clarification as to why the bill of costs was not deducted from the $15,000 already allocated for the trial.

The Defendant's Case

p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Counsel for the Defendants, Mr. Nori, responded by saying that the order for costs took effect on 10th October 2001. He also explained that the cost of court attendance was not for court hearing but for traveling from and to his office on Monday to Wednesday. He further explained that the rest of the items of costs were the cost of the adjournment not the cost of the trial. He therefore argued that the order he sought in the Notice of Motion should be granted.

The Trust Fund

Awich, J. on 6th July 1999 ordered that all monies received on connection with logging operation on Parcel Nos. 079 – 006 - 2 and 079 – 006 - 4 be paid into a joint interest earning account of the Solicitors for the parties. This order was superceded by a subsequent order of 16th August 1999 in the same terms. However, the amount to be deposited in the joint account was 7% of the gross proceeds of the 45% receivable by the Defendants. The current joint trust account was opened on 1^st December 2000 in the names of Bridge Lawyers and ANT Legal Services. The account is held in the ANZ Bank in Honiara. The account number is 411007. The opening balance was said to be $155,250.00. The actual transfer of funds held by Bridge Lawyers into the joint trust account was ordered by the Court on 20th July 2000. This then is basis of the joint trust account out of which expenses have been met in respect of this case.

The Issues

The first substantive issue is whether or not I should allow costs to beto be based upon Solicitor client scale. The second substantive issue is whether or not I should order that SBD 14,080.00 be paid to Bridge Lawyers out of the Joint Account Trust Fund in the joint names of the parties’ Solicitors.

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Determination of the Issues

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The or made on 11th October 2001 speaks for itself. Costs are to e to be paid out of the joint trust fund. The costs have been put at $12,800. The sales tax is $1,280.00. The total is $14,080.00. The Plaintiff, according to his Counsel, Mrs. Tongarutu, did not object to payment but did raise two queries which if explained satisfactorily by the Defendants, would not stand in the way of agreeing to the Defendants' sum being demanded by the Defendants. As pointed out by the Plaintiffs Counsel, Mrs. Tongarutu, she was yet to inform the Plaintiff of the answers to the Plaintiffs queries and so until that happened, she would not be in a position to sign the documents on behalf of the Plaintiff authorizing the ANZ Bank to pay out to Bridge Lawyers the sum of $14,080. 00. The Plaintiff’s position is borne out by Mrs Tongarutu's affidavit filed on 19th October 2001. There is a chance that the Plaintiff would not object to the payment of the sum of $14,080.00 given a little more time for the Plaintiff’s Solicitor to contact him on the matters he had queried before he left for his village in the Western Province. The Defendants however pressed for the orders sought in their Notice of Motion and nothing less. In support of their position, their Counsel, Mr. Nori cited John Kilatu v Kalena Timber Co Ltd. & Others (Civil Case No. 236/94) (unreported) [in which Muria, C.J. approved an increase in the scale of costs under item 43 in Appendix J in Legal Notice No. 22/75.] The Kilatu case appears to be the basis for the Defendants' present request for an order for costs to be paid on Solicitor client basis. The fact is that I had already granted costs of the adjournment as asked for by Counsel for the Defendants, Mr. Nori, on 10^th October 2001 and perfected on 11th October 2001. Counsel for the Defendants, Mr. Nori, did not really tell me why there should be an order for costs on Solicitor client basis other than to say that the Solicitor for the Plaintiff, Mrs. Tongarutu, refused to sign a letter of authority requested by himself on 10th October 2001. That is to say, Mr. Nori did not ask me to vary the order for costs I made on 11th October 2001 based on facts deposed to in an affidavit or affidavits whichever is the case. I do not see any basis for varying the order for costs which I made referred to above.

The further request by the Defendants for an order that the sum of $14,080.00 be paid to Bridge Lawyers and that the ANZ Bank effect such payment on being served with the Court Order is in my view tantamount to an order for recovery of costs. I do not think I can make orders for recovery of costs at this stage. The Plaintiff is still considering his position on the question of costs. The Plaintiff has not yet refused to allow costs to be paid out of the joint trust account. The Defendants therefore came to Court rather too early. I would dismiss the Defendants’ application. The application is refused.

F. O. Kabui

Judge