Chow v Commissioner of Lands [2016] SBHC 174; HCSI-CC 144 of 2013 (11 October 2016)

IN THE HIGH COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN: CHARLIE CHOW - Claimant

AND: COMMISSIONER OF LANDS - 1^st Defendant

HONIARA CITY COUNCIL - 2^nd Defendant

Date of Hearing: 30 September 2016
Date of Judgment: 11 October 2016

Mr. A. Hou for claimant
Mr. S. Banuve, Solicitor General for the Attorney General

Application for assessment of costs on an indemnity basis

Brown J:

This is an application to have cost assessed on an indemnity basis in relation to the extant part of the application for contempt filed on the 14 May 2014, following a consent order by the court on the 29 August 2013 when originating proceedings were settled on terms, without mention of costs. As a consequence of the alleged breach of the consent orders, the applicant instituted the proceedings for contempt which by consent, were discontinued by order on the 31 March 2016 when no mention of costs in that order was recorded. The ultimate order was:-
“3. This matter is listed for mention on 16 April 2015 at 9:30am”

On that day Mr. Hou for the applicant foreshadowed the application for costs on an indemnity basis for reason of the defendant’s delay in relation to the original consent orders giving rise to the application for contempt. Since then there have been numerous mentions but now, on the submissions filed in relation to the claim for indemnity costs, the Court will make a ruling.

The delay by the defendants pleaded by the applicant, stems from the nature of the consent orders requiring the Commissioner of Lands and the City Council to evict the occupants of Parcel no. 191-035-249 and 191-035-250 from the lands of the applicant. From the term of the consent order, the implied authority may be presumed in the Commissioner of Lands since it is not apparent actual eviction proceedings necessarily in the name of the landowner, were taken. A demolition order of the City Council issued to the various occupants of the land in question was exhibited in evidence, but it seems not until mid-March 2015 were the occupants removed from the property. Then the contempt application was withdrawn on the 27 March 2015.

During the period to the date of withdrawal, the claimant was awaiting satisfactory resolution of the agreed term of the consent Order, for as was recited in the Order, delay by the claimant in complying with clause 6 of the land grant to him, was partially contributed to by the failure of the Town and Country Board of the City Council to consider the claimant’s Building Application. Since the grant by the Commissioner of Lands was conditional upon terms, including development of the land, and because development was dependent upon approval by the Town and Country Board, the parties Consent Order recognized the responsibility of the respective authorities to carry out their obligations, and time limits were agreed as evidenced by the terms of the Order. But those time limits were in hindsight quite unrealistic and breached.

The time limits had expired when the application for contempt was instituted. Whether contempt proceedings were available to the claimant as alleged is not in issue in the proceedings before me for after resolution of the obligation resting on the authorities in terms of the Consent Order, by satisfaction, the contempt proceedings were discontinued. The contempt proceedings were on foot from the 14 May 2014 until discontinuance in March 2015.

The claimant says that delay to comply with the terms of the Consent Order was through “wilfull ignorance, neglect and/or failure on the part of the First and Second Defendants/Respondents as deposed to by the Claimant/Applicant in his supporting Sworn statement filed on 16 July 015.”

For by R. 24.12 of the Civil Procedure Rules of Court
“The Court may also order some or all of a party’s cost be paid on an increased or indemnity basis if:

1. The other party deliberately or without good cause prolonged the proceedings, or
2. The other party brought the proceedings in circumstance or at a time that amounted to a misuse of the litigation process, or

100. The other party otherwise deliberately or without good & use engaged in conduct that resulted in increased cost
     

By sworn statement of the Commissioner of Lands, Nelson Naoapu, provided reasons going to an explanation for the delay and in answer to the statement of Charlies Chow, Mr. Nelson Naoapu, at paragraph 10 says: -

“ The issues that is central to the delay in full compliance with the consent orders is a human one, that being the difficulty in evicting recalcitrant squatters in a situation where they had been promised a right to standing properly dispute the land on which it stood being sold, a matter which the claimant was clearly aware of but was unable to do anything about, despite his responsibility as the registered owner of the subject land to do so, as it clear from the sworn statement he filed to support its application for judicial review on 14 May 2013”.

By clauses 4 & 5 of the Consent Order the defendants accepted the responsibility of evicting the “Squatters” on the land the subject of the sale to the claimant. Yet by annexure NN 3 to Mr. Naoapu’s statement, the occupiers of the land were labour line worker whose buildings were in situ when the land was sold to the claimant. By that letter, NN 3 the Chief Architect, for Permanent Secretary, Ministry of Infrastructure Development pointed out the buildings on site remained the property of the labour line, who it would seem, were dispossessed as a result of the sale of the land.

For by S. 114(g) of the land and Titles Act, persons in actual occupation of the land have rights recognized adverse to those of the owner and in this case, in accordance with the terms of the Consent Order, those rights were extinguished by their eviction in view of the better right to possession claimed by the owner of the registered interest in the land, the claimant in these proceedings, and recognized by the Commissioner by virtue of the Consent Order or perhaps the land was sold with vacant possession, laying the responsibility for eviction on the Commissioner.

In the circumstances of the difficulties occasioned by the need to deal fairly with the labour line, dispossessed by the sale of land, I am not satisfied any of the basis for indemnity cost have been made out. No deliberate act has prolonged the proceeding, for the eviction of the labour line in the circumstances of increasingly difficult residency about Honiara would have given great difficulty to the Commissioner with commensurate delay. No misuse of Court process has been shown or asserted.

No conduct has deliberately or without good cause, been shown to have increased cost, rather the optimistic terms of the consent Order with unrealistic time limitations has had this result, a possible result surely apparent to the claimant.

The Consent Order made no provision for costs to that time. It is not available now, to seek to alter the implied acceptance that each party meet their own costs to that time, in the absence of any expressed intention to the contrary in the Order..

The institution of proceedings seeking orders for contempt are fresh proceeding enlivening the courts power in relation to an award of cost. As I have shown the reasons in R 24.12 to allow an increase of costs or award on an indemnity basis, have not been made out. Costs in relation to the contempt proceeding shall be in accordance with R.24-10, on the standard basis, to be assessed, agreed or taxed.

__________________
BROWN J