Fund Management Ltd v Fifita [2001] TOLC 7; L 0011-17 2001 (7 August 2001)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

NO. L. 11-17/2001

BETWEEN:

1. FUND MANAGEMENT LTD.
2. TOURIST SERVICES HA'APAI LTD.
Plaintiff

AND:

TEVITA MISA FIFITA & OTHERS
Defendants

BEFORE THE HON. MR JUSTICE FORD (In Chambers)

COUNSEL: Mrs Tupou for the plaintiff and
Mr Niu for the defendant.

Date of submissions: 10 and 12 July 2001.
Date of decision on Review: 7 August 2001.

DECISION ON REVIEW OF TAXATION

The writs in these 7 proceedings were issued in June 2000. The firm of solicitors then acting for the two plaintiffs was Garrett & Associates. In September 2000 the plaintiffs changed solicitors to Laki M Niu. Garrett & Associates duly rendered a bill of costs covering attendances during the period that they had been acting for the plaintiffs. The plaintiffs disputed the sum claimed and I ordered taxation. On 26 June 2001 I issued a formal Ruling dealing with the two principal issues that had arisen on taxation. The plaintiffs now, pursuant to Order 29 Rule 3 (7) (i), seek a review of one aspect of my Ruling. It relates to whether Garrett & Associates were entitled to charge for attendances in connection with a so-called formal proof hearing on 8 September 2000 whereby the plaintiffs obtained judgment against the defendants who had failed to file a defence or appear at the hearing.

The judgments were later set aside upon the application of the defendants but each defendant was ordered to pay costs on the application and a strict timetable was imposed for the filing of defences and for the trial of the actions.

In support of his review request, Mr Niu posed the rhetorical question that the formal proof hearing "was of no value, absolutely, to the plaintiffs so why should (they) have to pay their counsel for it?" He submitted that the only reason the court had had jurisdiction to set the judgments aside was because the plaintiffs' counsel had failed to ensure that the defendants had received notice of the hearing as required by section 154 of the Land Act (CAP. 132). The point Mr Niu made and developed in his submissions under this head was that the failure to give the defendants notice under section 154 invalidated the formal proof hearing or, as he put it, if counsel for the plaintiff "had insured that section 154 had been complied with before the hearing, then the court would not have had any jurisdiction or authority to set aside the orders which were made."

If that submission constituted a correct analysis of the legal position then there may have been some substance to the review application. The reality, however, is that section 154 of the Land Act played no part in the decision of the court to set aside the judgments entered against the defendants on 8 September 2000. At the lengthy Chambers hearing on 15 September 2000 the defendants' counsel quite frankly accepted at the outset that the failure to file the statements of defence had been solely an oversight on his part and non-compliance with section 154 was not one of the grounds put forward by the defendants for having the judgments set aside.

At that same Chambers hearing, Mr Garrett for the plaintiffs argued forcefully that the judgments should stand but in the end, after careful consideration of all the submissions, the court was persuaded that there were issues to be tried and, in the exercise of its discretion under Order 23 Rule 4 (1) (iii), it allowed the defendants' application and set aside the judgments.

As recently as 27 July 2001, the Court of Appeal in Kelepi Piukala v Bank of Tonga Appeal No. CA. 14/2000 reaffirmed that, "A jurisdiction to set aside its orders is inherent in every court unless displaced by statute." p.6.

The present review application, therefore, has proceeded on an incorrect assumption. I see no need to reconsider the observations I made in my Ruling of 26 June 2001 regarding the application of section 154 of the Land Act. The outcome of the present review is that my Ruling continues to stand.

In passing, I note that on 24 May 2001 the plaintiffs' new solicitor filed bills of costs for taxation in the 4 actions in this group of proceedings which had not gone on appeal. The file will now be referred to the Registrar to fix a date for taxation of those accounts. I draw the Registrar's attention, however, to my Ruling of 26 June 2001 on the duplication issue. I upheld Mr Niu's objection to the duplication of the charge made for a Chambers attendance on 30 June 2000 because the correct charge of $125 should have been split between all seven defendants instead of being charged as a separate item against each defendant. I note, however, that the same duplication seems to have been repeated in the bills of costs now awaiting taxation. There may also be other instances where similar duplications will need to be identified.

NUKU'ALOFA: 7 August, 2001.

JUDGE