Hudson & Co v Greater Pacific Computers [1997] VUSC 17; Civil Case 007 of 1997 (2 July 1997)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 7 of 1997

BETWEEN:

HUDSON & CO

Plaintiff

AND:

GREATER PACIFIC COMPUTERan>

Defendant

Coram: Mr Justice Oliver A. SAKSAK

Mrrt SUGDEN for the Plaintiff

Mr John MALCOLM for the Defendant

JUDGMENT

This matter was dealt with in Chambers held in Open Court on 26th June 1997.

The DefenApplicant sought orders by way of a Summons dated 27th March 1997 in accordance with with Order 57 Rule 1 of the High Court (Civil Procedure) Rules, 1964 that:

a)  p; &nsp;&nThe note of Costs sub submitted by the Plaintiff dated the 13th day of December 1.996 for an amount of VT 2,107, 121 be ; andn>

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class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> b) &nbssp; The Defendant provide an invoice in taxable form.

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The brief facts of the case are that on or about the 3rd September, 1996 the DefenDefendant/Applicant had instructed the Plaintiff, a firm of Barristers and Solicitors to provide legal services to the Defendant/Applicant on its normal terms and conditions; These were that the Defendant/Applicant being the client was to pay VT 20, 000 per hour for all time spent by a legal practitioner working on the client's matter or matters and further that the client was also to pay for all expenses and out of pockets incurred by the Plaintiff in relation to the clients matters. It is claimed that the Plaintiff provided legal services to the Defendant up to 13th February 1997 when the Plaintiff filed a Writ of Summons claiming for the outstanding sum against the Defendant. It is claimed that at the Defendant's request, monthly bills were delivered and as at 13th December 1996 the total account including all outstanding bills amounted to VT 2,107,121.

In support of the application for taxation Counsel for the Defendant intended to rely on the Affidavit of Mr Jan Mark Pozdena, the Managing Director of the Defendant company. Mr Malcolm served the Plaintiff and the Court with a copy each of the said Affidavit. The affidavit was not filed and no notice of intention to use the affidavit was given to Mr Sugden. Notice is required under Order 40, Rule 21. In my opinion that affidavit could not be admitted into evidence and I so rule.

In his submission Mr Malcolm urged the Court to consider the matter as a matter for taxation. He told the Court that the matter started on 12th February 1997 and not on the date on which the Bills were sent. As such the matter is still within the 12 months rule. Mr Malcolm did not refer any provisions to the Court relating to this. He further argued that if the Courts refuses taxation, Mr Pozdena would be left without remedy to challenge. He argued that taxation is the only avenue for a client to challenge a solicitor's account. Further, that solicitors as officers of the Court must do an honest job and deliver an honest bill. Mr Malcolm told the Court that he did not dispute that the Plaintiff is entitled to a judgement but opposed any judgement given at this stage before the case for taxation is heard. If Judgement were given, that it be stayed. Finally Mr Malcolm told the Court that there must be some sureness as to who owns what and how much and that justice required that the matter be taxed.

Mr. Sugden in response said that was no evidence of the note of costs or invoice before thee the Court. Secondly Counsel referred the Court to the Orders of this Honourable Court dated the 27th Day of May 1997 and told the Court that pursuant to paragraphs 6 and 7 of the said Order, Counsel had written to the Chief Registrar asking for the matter to be listed for hearing. Mr Malcolm conceded and told the Court that the letter should be determined and judgement be entered.

Mr Sugden further agued that here was no note of costs before the Court. He submitted that if the Court gave judgejudgement it could not be stayed as there was also no application for stay before the Court. He further argued that the Court would be clogged if every solicitor's bill was brought for taxation.

Mr Sugden relied on his own affidavit dated 23rd May 1997. Mr Sugden read relevarts of his affidavit avit and Counsel for the Defendant/Applicant agreed that the unread parts should be taken as read. This is the only admissible documentary evidence before this Court on which the Court bases its judgement.

Mr Malcolm er objected to paragraph 7 of Mr Sugden’s affidavit on the grounds that it was hearsaearsay. I am bound to accept that and accordingly rule that part of the affidavit is inadmissible as evidence.

The issue I have to decide is whethenot the sum of VT 2, 107, 121 claimed by the Plaintiff as as outstanding from the Defendant/Applicant should be taxed. In answering that issue I have to ask myself also the question:

Does the Defendant/Applicant hav right to clam for taxation of costs?

No rules or legislation in Vanuatu has been referred to me and I find none. Thee I have had to resorresort to the law in England. Section 68 of the Solicitors Act 1957 states:

"(1) &nnbsp; Subjectbject to the viprovisions of this Act, no action shall be brought to recover any costs due to a solicitor until one month after a bill thereof has beenvered dance with thth the requirements set out in the nthe next fext following subsection: By this provision the answer to my question would be in the affirmative. However that is a limited or restricted right in the sense that it can and should be exercised only within one month. One month here means one calendar month. If the Defendant has failed to apply for Taxation within that time and the Plaintiff has clearly established that he did deliver his bills, that right is lost.

From the evidence before me, Mr Sugden has deposed to the fact thatelivered monthly bills to M to Mr Pozdena as often as he could. (See paragraph 13 of his Affidavit).

In paragraph 21 Mr Susays:

"I then drew bills to date in all matters and forwarded a letter with the bills, a copy of which is annexed and marked "F””

He then referred the Court to the correspondences that ensured ove following days annexed aned and marked "G", "H"; "I" and "J" respectively.

I fint what is said at paragraph 13 is not consistent with what is said at paragraph 21.

The Bills referred to in paph 21 are:

le class="Mss="MsoNormalTable" border="0" cellspacing="0" cellpadding="0" width="638" style="width: 478.8pt; border-collapse: collapse; margin-left: 36.0pt">

a) 14th October 1996

VT ">VT 365, 168

b) 16th October 1996

VT 158, 430

c) 22^nd October 1996

VT 117, 280

d)28th October 1996

VT 360, 770

e) 31st October 1996

VT 228, 247

f) 19th November 1996

VT 330, 250

g) 19th November 1996

VT 101, 122

h) 19th November 1996

VT 192, 164

i) 20th November 1996

VT 174, 006

k) 13 December 1996

VT 72, 620

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l) 13th December 1996

VT 110, 414

m) 13th December 1996

VT 57, 102

Int">In a letter dated 12th February 1997 referenced "LEGAL MATTERS" which is referred to in the affidavit as Annexure "F", Mr Sugden says this at the first paragraph:

"We refer to recent communications and enclose bills in respect of all matters in which we act for you until such times as you dismiss us (by Notice to the Court in matters involving Court Proceedings)”.

From this I draw the conclusion sion that all bills as listed above from a) to m) were only enclosed in the letter of the 12th February 1997 to the Defendant company and that they were not sent to the Defendant company earlier. I find no evidence to suggest that bills were sent earlier by the Plaintiff.

Furthermore, the second paragraph of Mr Sugden’s letter reads:

"If these bills are not paid in full within 30 days we will issue process to recover these sums as well” (emphasis, mine)

The Defendant fant faxed the Plaintiff on the same day saying at second paragraph of Annexure "G":

"Again we have come up with a different figure as per advises and again I still contest the full amount of close 2, 5 million vatu.”

span lang="EN-GB" style="font-size:12.0pt">Already by this this statement the Plaintiff was aware that the Defendant was disputing the amount being claimed. The defendant acknowledged receipt of the letter of 12th February 1997 together with copies of the bills by letter dated 13th February 1997. The letter is Annexure "I".

However, contrary to whao what the Plaintiff stated in their second paragraph to their letter of 12th February 1997, they issued a Writ of Summons dated and filed the 13th day of February 1997.

In my judy judgment, clearly the Plaintiff was bound to abide by his undertaking to afford the Defendant 30 days to pay. When the Plaintiff filed a Writ of Summons on 13th February 1997, clearly he did so without regard to the Defendant's right to have the bills taxed. The Defendant/Applicant applied by way of a Summons for Orders to have the bills taxed which was filed on 27th March 1997. The Defendant/Applicant was in my judgement within the one month requirement.

Finally, therefore as to the issue of whether or not the Defendant had a right to have the amount of VT 2,107,121 taxed is answered in the affirmative.

Therefore, the the following Orders are granted.

1) & p;&nssp; THAT>THAT the note of costs submitted by the Plaintiff dated 13th Day of December 1996 for an mountT 2,11 be taxed.

2) ;&nbssp; THAT>THAT the Plaintiff provide an Invoice in taxable form.

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3) &nnbsp;;&nspp; THAT>THAT the Writ of Summons issued by the Plaintiff dated the 13th day of February 1997 is adjourned sine die.

4) &nbssp;&nnsp;& THAT>THAT any or all subsequent actions by the Plaintiff in connection with or incidental to rit omons tayed pending the Taxation.

5)  p; &nTHAT the Plaintiff pays the Defendant's costs of the summons to be taxed if not agreed.

2 July 1997.

BY THE COURT

OLIVER A. SAKSAK

JUDGE