Fund Management Ltd v Fifita [2001] TOLC 6; L 0011-17 2000 (26 June 2001)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

NO. L. 11–17/2000

BETWEEN:

1. FUND MANAGEMENT LIMITED
2. TOURIST SERVICES HA'APAI LIMITED
Plaintiffs

AND:

TEVITA MISA FIFITA & OTHERS
Defendants

BEFORE THE HON MR JUSTICE FORD (In Chambers)

Counsel : Mrs Tupou for the plaintiff
Mr Niu for the defendant

Date of Taxation: 25 June 2001
Date of Ruling: 26 June 2001

RULING ON TAXATION OF COSTS

These seven actions are all similar and relate to the same piece of land. The plaintiffs changed solicitors and a dispute arose as to the first solicitor's entitlement to costs. Both counsel very sensibly agreed to an arrangement which allowed for the files to be handed over on the basis that the bulk of the costs were paid directly to the solicitor and a sum covering the amount in dispute was then paid into court.

On taxation, two principal issues required consideration. First, whether the charge for attending a chamber's hearing on 30 June 2000 had been duplicated and, secondly, whether the plaintiffs' solicitor was entitled to charge for work done in connection with obtaining judgment by way of formal proof.

In connection with the duplication issue, I am satisfied that there has been duplication. The chamber's attendance on 30 June 2000 involved a total of one hour of time and counsel was entitled to charge for that time at her normal hourly rate of $125. It appears, however, that, in respect of the seven cases, the $125 figure has been charged five times and $62.50 has been charged in respect of each of the other two cases. The $125 charge for action L.16/00 purports to be a fee for service of the application for injunction but that is clearly incorrect because the court records show that the application for injunction was not served until 5 July 2000. I have, therefore, proceeded on the basis that the charge made was, in fact, for the chambers attendance in question.

In view of the obvious duplication, I have deducted the sum of $625 from the solicitor's bill of costs.

The second issue is more complicated. It was accepted that no statement of defence had been filed at the time of the formal proof hearing when judgment was entered for the plaintiffs but it was argued that the plaintiffs were, nevertheless, still required under section 154 of the Land Act (CAP. 132) to give notice to the defendants of the court sitting and they had failed to do so.

Section 154 states:

"The sittings of the Court shall be held in the Supreme Court Nuku'alofa but sittings of the Court may be held elsewhere:

Provided always that reasonable notice of the time and place of such sitting has been given to the parties and the various witnesses concerned in the cases that are to be heard at such sitting."

I do not interpret that provision as imposing a requirement on the plaintiff to give notice of the sitting time and place. If that was the intention than it could and should have been clearly stated. One can compare Order VII Rule 2, for example, of the former Supreme Court Rules which set out very specific requirements for the plaintiff to give notice of trial to the defendant or defendants. That same explicit language does not appear in section 154.

In my view, the notice of sitting requirement in section 154 of the Land Act is to be given, not by the plaintiff, but by the court itself and such notice is usually given in the form of the weekly "Case List" which is circulated by the court to all practitioners.

Unfortunately, it appears that because of the urgency of these particular cases, the fixture for the day of the formal proof hearing was allocated by the court during the week of the actual hearing on 8 September 2000 and, therefore, it did not show in the Case List that had earlier been circulated for that week.

For present purposes, however, it is sufficient for me to confirm that the omission to give notice, should notice have to be given under section 154 to a defendant that has not filed a defence (and I make no decision on that matter), was not the fault of the plaintiffs and, indeed, as I have already said, there was no onus on the plaintiffs to give such notice.

I do not propose, therefore, to make any deductions from the bill of costs for costs incurred by the plaintiffs' original solicitor in obtaining judgment. A certificate of taxation will now be issued allowing for the duplication point which I have ruled on and also for a reduction I have made to the fee charged for a letter to the registrar dated 1 September 2000 seeking an urgent fixture. I will make a separate order for dispersing the proceeds of the funds paid into court.

NUKU'ALOFA: 26 JUNE 2001.

JUDGE