Monfort Brothers of St Gabriel v Jaimi Associates [1998] TOSC 1; C 0586 1995 (30 April 1998)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

NO.C.586/95

BETWEEN:

MONFORT BROTHERS OF ST. GABRIEL
Plaintiff

AND:

JAIMI ASSOCIATES
Defendant

BEFORE THE HON. MR. JUSTICE LEWIS IN CHAMBERS

COUNSEL: Mr Appleby for the Plaintiff
Mrs Tonga for the Defendant

Date of Hearing:
Date of Judgement: 30 April 1998

JUDGMENT

The successful Defendant in this action claims costs. The costs are claimed in respect of work done subsequent to the Judgment of Hampton CJ dated 28 August 1997. The Bill is a for the one. It relates to the collection of the Judgment and first costs Order.

Without protracting this matter it is sufficient to say that after Judgment a figure of $137,000.00 was arrived at by consent. The unsuccessful Plaintiff did not pay immediately. The Judgment Creditor claims that it was necessary to take a number of enforcement steps to recover the Judgment sum. That is not in dispute.

The Judgment creditor claims that the issue is whether it s an appropriate case for this Court to make an award of costs on an indemnity basis that is an award in the nature of the one considered in EMI RECORDS LIMITED –V- IAN CAMERON WALLACE LTD AND ANOR. [1982] CH. D. 980. That principle appears to be that costs which are ordered on an indemnity basis take effect as costs on the 'solicitor and own client basis that all costs incurred were to be allowed except those unreasonably incurred or were of an unreasonable amount. In deciding whether any costs were unreasonable the receiving party was to be given the benefit of nay doubt.

The notion of indemnity basis costs springs from the (English) RSC O.62. Hampton CJ ordered 'indemnity costs' in his Order of 14 August 1997. I am asked to extend that Order to cover the present situation for enforcement of Judgment and costs on earlier Orders for Judgment and costs.

The Application for the costs set out in the Bill is opposed. Counsel for the claiming party on a reconsideration of the total of the Bill of costs concedes that a sum of $2413.75 should be deducted from the total amount claimed of $6380.15 – leaving $3966.40.

Having considered the objections of the Paying party and the submissions of Counsel I am of the opinion that the Order of Hampton CJ should persist. The costs claimed were neither unreasonable in quantum nor unreasonably incurred on the material before me.

I allow the costs in the reduced amount of $3966.40

IT IS ORDERED THAT:-

Costs of the Receiving Party be Certified against the Paying Party in the sum of $3966.40

NUKU'ALOFA, 30 APRIL, 1998

CHIEF JUSTICE