Levers Solomon Ltd v Van Vlymen [2023] SBHC 130; HCSI-CC 287 of 2018 (21 December 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Levers Solomon Ltd v Johan Willem Van Vlymen
Citation:
Date of decision:	21 December 2023
Parties:	Levers Solomon Limited, Russel Islands Planation Limited v Johan Willem Van Vlymen
Date of hearing:	23 June 2023 by Defendant, 19 July 2023 by the Claimant
Court file number(s):	287 of 2018
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1 The application by the Defendant/Applicant on 11th May 2023 is hereby dismissed. 2 Order that the total amount in the Bills of Costs be paid to the Claimant/Respondents forthwith. 3 That cost of this hearing be also paid by the Defendant/Applicant to the Claimants forthwith on indemnity basis.
Representation:	Ms A S Willy for the 1st and 2nd Claimants/Respondent Mr B Upwe for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon islands Courts (civil Procedure) Rule 2007 r 7.5
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 287 of 2018

BETWEEN

LEVERS SOLOMON LIMITED
First Claimant

AND:

RUSSEL SOLOMONS PLANATION LIMITED
Second Claimant

AND:

JOHAN WILLEM VAN VLYMEN
Defendant

Date of Hearing: 23 June 2023 by Defendant, 19 July by the Claimants
Date of Ruling: 21 December 2023

Ms A S Willy for the 1^st and 2^nd Claimants/Respondents
Mr B Upwe for the Defendant/Applicant

RULING ON APPLICATION AS TO ASSESSMENT OF COSTS ORDERS

Faukona DCJ.

1. This is an application filed by the Defendant on 11^th May 2023, to dismiss an order that the assessment of the Claimants costs of the proceedings in accordance to paragraph 2 of the order made by the Court on 4^th March 2019, which the Court ordered the Defendant to pay indemnity costs.
2. The application is expressed premise on the Court of Appeal decision in Civil Case No. 18 of 2019, which the Court of Appeal, had allowed the appeal and each party to pay its own costs.
3. The view of the Defendant is that since the appeal was allowed, it followed all the orders including the Cost order in this application should also go as well, otherwise it will cause prejudice to the Defendant.
4. Further view as expressed by the Applicant is whenever the Court of Appeal overturned a judgment, orders delivered with it can no longer be in effect.
5. The Claimants case is absolutely different. They state that there are two different costs orders for assessment by this Court.
6. The first refers to the case decided on 4^th March 2019 where the Court ordered the Defendant to pay indemnity costs.
7. The second and separately was on 18^th October 2019, when the Court of Appeal made orders, including an order that the Defendant pay the Costs of the Claimants on the application it heard. The application for leave was heard on 7^th October 2019, and perfected on 30^th June 2020 from which costs orders were also derived.
8. One of the orders in the application for leave is order 3, which read, the Applicant shall pay to the Respondents their costs of and incidental to the application to be assessed if not agreed including certification for overseas Counsel. That is an exercise of discretion in full manifestation.
9. The current Application only addresses one costs order, that of 4^th March 2019 but not the cost order on 30^th June 2020.
10. The Respondents argue that the Applicant is relying on the principle of “whenever the Court of Appeal overturned a judgment, orders delivered with it can no longer be in effect.
11. I noted the submissions by the Applicant that there was no authority quoted to support his view, however, it is only proper in such circumstances to affirm there is no such principle of law exist.
12. When the Court of Appeal heard the Appeal on 29^th October 2020, it noted the costs were discretionary.
13. On 1^st February 2021, the Court of appeal decided the appeal after parties filed submissions and addressed the issue of costs order on 4^th March 2019.
14. The court of Appeal decided not to vacate or set aside the costs order made on 4^th March 2019, whilst allowing the appeal.
15. The Court of Appeal also consider application for leave to appeal out of time, and on 18^th October 2019 made order for costs against the Defendant. These costs order is subject to present costs assessment.
16. I noted the current Counsel for the Applicant in his submissions and sworn statement made reference to the sworn statement of Mr. Rodney Kingmele filed on 20^th August 2020.
17. Mr Kingmele’s sworn statement was filed in support of an application to stay Claimants assessment on costs derived from costs order on 4^th March 2019, pending Court of Appeal determination.
18. At paragraph (2) of the Mr. Kingmele’s sworn statement, as appears from notice of appeal seeks inter alia, in addition to setting aside the order on 4^th March 2019, which awarded indemnity costs.
19. The Court of Appeal had heard the appeal but the Court orders on 4^th March 2019 was not set aside, but ordered parties to meet their costs. That is cost on hearing of the appeal proceedings. If the Court order was unjust or prejudicial to the Applicant, it could or would have set it aside. Therefore the court order on 4^th March 2019 remains in full force and effect.
20. Apparently, it would seem the current application is attempting to appeal against costs orders on 4^th March 2019. The appeal has already been run, the submissions were made and the Court of Appeal decline to change the court order on 4^th March 2019.
21. The Applicant is concerned with one cots order only, which is of 4th March 2019, but not the other one, hence he must be liable to pay the cost orders of 30^th June 2020 forthwith.

Assessment of costs not supported by a sworn statement.

22. The Applicant also raise the issue that the application for assessment of costs had not been supported by any sworn statement pursuant to rule 7.5 of S.I Court Rules to justify all the items listed in the Bill of costs.
23. On the contrary the Respondent submit, there is no evidence, nor in the submissions from the Applicant disputing the amount sought by the Claimants, nor any singular item listed in the Bill of Costs was disputed.
24. The sworn statement of Ms. Alice Willy filed on 5^th June 2023 confirms that the Bills of Costs for each of the court Orders were filed on 25^th November 2019 (for the Court Orders made on 18^th October 2019 by the Court of Appeal ) and on 27^th January 2020 (for court orders of 4^th March 2019).
25. The Claimants further submit the amount sought by them are reasonable for the reasons within the sworn statement of Mr. Alice Willy at paragraphs 7 to 17.
26. From arguments before this Court, I find the current application has no merit. It is an abuse of Court process, and has no reasonable basis for success but has the effect of delaying the assessment process.
27. I must therefore assess the claim in the amount submitted in the evidence of the Claimants.
28. The Applicant is relying on principle of law which do not exist, and claim there was no sworn statement in support of the application for assessment. In fact the sworn statements of Ms. A. Willy filed on 5^th June 2023 and 27^th January 2020 were in support of the application for assessment.
29. The Applicant was aware of the application for assessment of cost filed on 27^th January 2020, pursuant to paragraph 10 of Mr. Kingmele’s sworn statement filed on 29^th August 2020. Since then the Applicant has never filed a reply contesting all or some of the items in the Bills of Costs.
30. As I have mention in paragraph (26) above that I must assess the costs orders. In doing so I have gone through each items of the Bill of Costs thoroughly. I am satisfied on the balance of probability that each item in the Bills Cost are true. And those costs were supported by sworn statements. Therefore it is only prudent to award the total amount in the Bills of Costs to the Claimants.

Orders:

1. The application by the Defendant/Applicant on 11^th May 2023 is hereby dismissed.
2. Order that the total amount in the Bills of Costs be paid to the Claimant/Respondents forthwith.
3. That cost of this hearing be also paid by the Defendant/Applicant to the Claimants forthwith on indemnity basis.

The Court.
Rex Faukona.
DEPUTY CHIEF JUSTICE.