Kosui v Lafui [2024] SBHC 8; HCSI-CC 304 of 2018 (21 February 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kosui v Lafui
Citation:
Date of decision:	21 February 2024
Parties:	Henry Kosui, Dr Paul Orotaloa and Francis Kiriau v Francis Lafui, David Olifooa, Nimrod Ramo, Ronald Fufui & Marlon Kidi, Attorney General
Date of hearing:	3 August 2023
Court file number(s):	304 of 2018
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. Order that the application for assessment of cost on indemnity basis granted. 2. Orders that indemnity cost assessment as per invoice for legal and professional service attached to the sworn statement of Mr. Afeau filed on 23rd May 2023, be paid by the Claimant to the 1st Defendants forthwith. 3. The Costs of this hearing be paid by the Claimants to the 1st Defendants on standard basis if not agreed upon forthwith as well.
Representation:	Mr Kwana for the Claimants Mr P Afeau for the 1st Defendant No one for the 2nd Defendants
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Fountain Selected Meats Pty Ltd v International Produce Merchants Pty Ltd [1988] 81 ALR, Preston v Preston [1982] 1 ALL ER 41, Andrews v Barnes [1888] UKLawRpCh 112; [1887] 39 Ch. D 133,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 304 of 2018

BETWEEN

HENRY KOSUI, DR PAUL OROTALOA AND FRANCIS KIRIAU
Claimants

AND:

FRANCIS LAFUI, DAVID OLIFOOA, NIMROD RAMO, RONALD FUFUI & MARLON KIDI
First Defendants

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Lands and Registrar of Titles)
Second Defendants

Date of Hearing: 3 August 2023
Date of Ruling: 21 February

Mr Kwana for the Claimants
Mr P Afeau for the 1^st Defendants
No one for the 2^nd Defendants

RULING ON APPLICATION FOR ASSESSMENT OF COSTS

Faukona (DCJ).

1. The application to assess costs on indemnity basis was filed on 23^rd of May 2023.
2. From the Court records the Claimants had failed to file response to the application, though on two occasions, on 14h April 2023 and 19^th June 2023, the Court had ordered so to do. It was never filed until hearing of this issue of costs.

Background facts.

3. A claim was filed by the Claimants on 28^th August 2018. There was no sworn statement filed with the claim according to the court records.
4. On 23^rd October 2018, service of the claim and documents (not a sworn statement) were served on 5^th named first defendant, Mr. Kidi, personally at White River, West Honiara.
5. On 30^th October 2018, the claim and relevant documents (sworn statement not included) were served on the 1^st and 2^nd named first defendants personally at Fasileta village, East Fataleka.
6. After service was effected by Mr. Reginald Taroga who filed proof of service sworn statement, and there was no defence filed within the legal period, hence prompted an application for default judgment which was orally done on 15^th November 2019.
7. The default judgment was granted on the same date and formally perfected on 20^th November 2019.
8. On 15^th July 2022 an application to set aside the default figment was filed. On 24^th November 2022, the Counsel for the Claimants informed the court that his clients will not object to the application to set aside the default judgment. Instantly the Counsel for the 1^st Defendants sought cost on indemnity basis, hence filed this application – pursuant to rules 24.9 – 24.12.
9. The grounds the 1^st Defendants rely on which support this application is that the claim was not served on all the 1^st defendants who are the trustees of the land. Further they did not receive a copy of the default judgment as well. However they received a copy from Dr. Wairiu of Windrock International in early December 2021, about two (2 years later.
10. It is shown that the claim was not served upon all the 1^st Defendants and the default judgment as well. A further explanation will accorded later in this ruling.
11. Secondly, by not complying with the civil rules, the defendant’s case is that the claimants are intentionally delaying and prolonging the proceedings, therefore actually abusing the Court process.
12. Because there was no effective service of the claim and default judgment upon the 1^st Defendants, they have to incur extra costs to inspect the Court file and paid for copies of the necessary documents.
13. The Claimants have denied any wrong doing, specifically on the relevant rules applicable to indemnity costs, that is rule 24.11 and rule 24.12.
14. The relevant rule 24.12 (a) states that other party deliberately or without good cause prolonged the proceedings.
15. Rule 24.12 (b) the other party brought the proceeding in circumstances or at a time that amounted to a misuse of the litigation process, and
16. Rule 24.12 (c) the other party otherwise deliberately or without good cause engaged in conduct resulted in increased costs.
17. Rule 24.10 vested discretionary power on the Court to award cost on indemnity basis but must be based on circumstances outline in Rules 24.11 and 24.12. I have identified three relevant circumstances in paragraphs 14-16 above.
18. In this case of Fountain Selected Meats Pty Ltd V International Produce Merchants Pty Ltd^[1] the court define the principle that indemnity costs can be awarded where there was special or unusual feature to justify the Court exercising its discretion – see also Preston V Preston^[2].
19. On the outset it ought to be noted that I am dealing with the application for indemnity costs. Whilst that may, I do not intend to venture into the substantive issue of the claim which centered on fraud and or mistake affecting a registered land.
20. The issue of fraud is not a stand out one specified in rules 24.11.and 24.12. However in the Fountain case above, the extend of circumstances is broad enough to include some special or unusual features, which in my opinion covers fraud. The Court concluded that costs could be awarded where charges of fraud had been made and not sustained. Clearly and visibly fraud in that case was an issue in the substantive hearing but was not sustained, however provided circumstance where indemnity cost can be awarded.
21. In the case of Reef Pacific Trading Limited V Price Waterhouse, Kabui J. found that the allegation of fraud made by the plaintiff against the defendant was without basis, false and bound to fail hence ordered indemnity costs against it.
22. The question is whether particular facts and circumstances of this case warrant making of an order for payment of costs other than on party and party basis?
23. The Court can only depart from cost on party and party basis where circumstances of the case warrant. The test for such departure is as and when the justice of the case is required – Andrews V Barnes^[3].
24. The special circumstances or the unusual feature which the defendants alleged is that service of the claim and other relevant documents were not served on Mr. Ronal Fugue and Mr. Mahlon Kide – see their respective sworn statements filed on 15/7/22 and 11/8/22.
25. On the service record book only two of the 1^st Defendants appeared as being served and signed. However Mr. Kidi denied in his evidence signing any document and deny the signature on the service record book as hes.
26. I tend to belief Mr. Kidi. Other documents contain his signature appeared different from the one on the service book. Mr. Fugui has not signed any service record book at all. I must therefore belief his sworn statement.
27. Mr. David Olifoóa had not signed the service record book. If he was served together with Mr. Francis Lafuia at Fasileta village, East Fataleka he would have signed the book in the recipient column. There was none.
28. Evidence has proved that only one of 1^st Defendants was served with the claim and not the rest. Despite multiple individual defendants they ought to be served individually and personally. It does not happen in this case.
29. With the conduct of the Claimants and the purported poof of service statement filed by Mr. Taroga on 24^th May 2019, that conduct tantamount to an abuse of court process, of course with no excuses and doubt.
30. Worst still, with the knowledge of not effecting service fully and personally the Claimants came to Court with an application for default judgment and obtained it. Is that not a further abuse of Court process where the Court had to be misled and subsequently granted the default judgment. That is barely an abuse of Court process at its best.
31. After the grant of default judgment which was perfected on 20^th November 2019, it was not served upon the 1^st Defendants immediately. However it was given to the 1^st Defendants in early December 2021, by Dr. Wairiu of Winrock International, about two (2) years later.
32. After receiving a copy of the default judgment, the current Counsel for the 1^st Defendants filed an application to set aside the default judgment on 15^th July 2022. However, this was done after search of the file in the Registry and copies of all the documents were extracted and paid.
33. The question to pause is, why the default judgment orders was not served upon the 1^st Defendants? What was the reason for none service and delay. Is that not an abuse of Court process with intention to carry out some mischievous agendas? One reason suggested by the 1^st Defendants is the delay was intentionally conducted to articulate their supremacy as owners of the land.
34. The facts employed by the Claimants was to deliberately delay and without good cause prolonged the proceeding to their own advantage. This conduct fall squarely on R. 24.12. (a).
35. Acknowledging the impurities of legal shortfalls, the application to set aside the default judgment was consented by the Counsel for the Claimants.
36. It is not a matter to set off the costs in granting of default judgment. One process must be dealt with separately. The same can be said in relation to costs incur in each proceeding.
37. In conclusion, I have narrated the reasons plainly and where the conclusion is expected to fall. This case is one of the purest conduct assimilated to gain benefit and hidden agenda or an ulterior motive. In the end the making is purely an abuse of Court process and a deliberate delay and not complying with the rules guiding service of documents.
38. I find the grounds relied on by the 1^st defendants are special circumstances which require this court to exercise discretion and grant the applications for indemnity costs as the justice of the case require.

Orders:

1. Order that the application for assessment of cost on indemnity basis granted.
2. Orders that indemnity cost assessment as per invoice for legal and professional service attached to the sworn statement of Mr. Afeau filed on 23^rd May 2023, be paid by the Claimant to the 1^st Defendants forthwith.
3. The Costs of this hearing be paid by the Claimants to the 1^st Defendants on standard basis if not agreed upon forthwith as well.

The Court.
Rex Faukona.
DEPUTY CHIEF JUSTICE.

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^[1] [1988] 81 ALR.
^[2] [1982] 1 All ER 41.
^[3] [1887] 39 Ch. D 133.
[1888] UK Law Rp CH 112.