Family Hivoliliu v Tarihehe [2012] VUSC 217; Civil Case 121-08 (12 October 2012)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 121 of 2008

BETWEEN:

FAMILY HIVOLILIU represented by Chief Abel Nako
Claimant

AND:

JOHN ROLL TARIHEHE and LUCY KWEVIRALAE
First Defendants

AND:

TOKATAVA WEST AMBAE AREA LAND TRIBUNAL
Second Defendant

Coram: Justice D. V. Fatiaki
Counsels: Mr. F. T. Laumae for the Claimant
Mr. S. C. Hakwa for the First Defendants
Mr. A. F. Obed for the Tribunal

Date of Ruling: 12 October 2012

RULING

1. On 25 May 2010 the Master made the following award after a taxation of cost hearing convened at the request of counsel for the first defendant:
   

"After taking into account the factors referred to in paragraphs 10 – 12 herein, the submission of counsel for the first defendants and the Court file relating to this matter, it is the view of this Court that the appropriate sum of costs payable by the claimant to the first defendant pursuant to the cost ruling of Justice Dawson is the sum of VT192,800."

2. By letter dated 10 June 2012 addressed to the claimant's counsel, counsel for the first defendant sought payment of the Master's taxation award of VT192,800 within 28 days and, failing which, enforcement proceedings would be taken.
   
3. By letter dated 2 July 2010 to the Chief Registrar, the representative of the claimant family sought the re-enlistment of the claim (which had been summarily dismissed on 12 February 2010 in the claimant's absence by Dawson J) and a stay of the costs order until a proper hearing is done ( whatever that may mean).
   
4. In a Minute dated 4 November 2010, Dawson J. wrote:
   
   1. "Following receipt of a letter dated 2 July, 2010 from one of the claimants, Mr. F. Kabini as counsel for the claimants has been invited to make the appropriate application for the reinstatement of this matter, if that is his client's wish. No such application has been received by the Court.
      
   2. If an application is not received by the Court prior to 10 December 2010, the Court file will be closed".
      
5. On 12 November 2010 the first defendant filed an Application for an Enforcement Order with a view to enforcing the Master's taxation award. Thereafter nothing much happened until the Court file which was originally assigned to Dawson J. was reassigned due to his permanent departure for New Zealand.
   
6. After the reassignment of the case, the claimant instituted a fresh action in the Supreme Court on 21 December 2010, namely Civil Case No. 208 of 2010 which was an application for judicial review and this served to delay, confuse and complicate matters further.
   
7. Finally on 24 May 2012 the claimant's Enforcement Application was listed for hearing on 13 June 2012.
   
8. On 13 June 2012 I heard both counsels orally, on the claimant's enforcement application. Mr. Laumae for the claimant, whilst acknowledging the existence of the Master's taxation award in favour of the first defendant, nevertheless, opposed the application by reference to an order of 'security for costs' made by this Court in Civil Action 208/2010 and which was paid on 5 April 2012. Counsel submitted that:
   

"... the security for costs order was partly based on the existing costs order of the Master sought to be enforced now. We say the Masters' earlier costs order can be taken as secured by the security provided."

9. Counsel for the first defendant, for his part, in opposing the claimant's submission emphasizes the different case numbers which the Master's taxation award was made in (i.e. Civil Case No. 121/2008) and the pending claims in which the 'security for costs' order was made (i.e. Civil Case No. 208/2010), and counsel submits:
   

"... there is no relation between the 2 cases in that regard ( i.e concerning costs) and no basis or answer to this claim because it ( the payment of the Master's award) is the only outstanding issue left in Civil Case No.121/2008. Even if the security for costs order is available for 208/2010, it is doubtful that it secures the costs already ordered in Civil Case No. 121/2008. Claimant family has not appealed against the costs determination and (therefore) asks for enforcement order."

10. Neither counsel cited any authority for their respective submissions. Be that as it may, Rule 15 of the Civil Procedure Rules (CPR) gives the Court a discretion in deciding in any case, whether? and how? to award costs. As a general rule, the costs of a proceeding are payable by the party who is unsuccessful in the proceeding however there is nothing to prevent the parties to a proceeding agreeing to pay their own costs or agreeing the terms upon which costs will be paid in a proceeding.
    
11. The CPR also recognizes that costs are normally awarded on a standard basis ('party/party costs') and covers "all costs necessary for the proper conduct of the proceeding and proportionate to the matters involved in the proceeding."[see: Rules 15.5 (1) & (3)]
    
12. Finally Rule 15.8 sets out the "matters" that must be considered and taken into account in determining what is "a fair and reasonable amount of costs" in any particular case. Additionally, the Court must take into account any offer to settle that has been rejected and, lastly, the costs of determining the costs of a proceeding (i.e. in this instance the Master's hearing costs) form part of the total "costs of the proceeding".
    
13. In similar vein the CPR sets out in Part 15, Division 2, the Rules relevant to an order for "security for costs" which is only available to a defendant. More particularly, Rule 15.20 enumerates the different "matters" that a Court may consider in deciding whether to make an order for 'security for costs ' and Rule 15.22 sets out what is to happen if a 'security for costs' order is not given or fulfilled by the claimant as ordered.
    
14. A comparison of the "matters" enumerated in Rules 15.5 and 15.8 (in awarding costs of a proceeding) and those enumerated in Rule 15.20 (for an order for 'security for cost') clearly demonstrates that the purpose and function of the two orders are quite different as well as the time when the orders can be made and how each is enforced.
    
15. In the usual case, 'costs of a proceeding' are awarded to the successful party at the end of the proceeding and at the time of judgment. In the case of an order for 'security for costs' the order is normally made during a proceeding before judgment and, unless varied or set aside, is "discharged after the costs have been paid" [see: Rule 15.24 (a)]. This latter feature makes a clear distinction between an order for "security" and the actual "costs" which it secures.
    
16. I am fortified in my view by the definition of a "judgment debt" in Part 14 of the CPR dealing with the enforcement of judgments which reads:
    

"Judgment debt means the amount payable under a money order and the costs of gaining the order"

and a "money order" means "an order of the Court for the payment of an amount of money".

17. It is beyond argument that the Master's taxation award of VT192,800 is a "money order" granted to the first defendant ( as "judgment creditor") and constitutes a "judgment debt" enforceable by enforcement order and enforcement warrant against the claimant (the "judgment debtor").
    
18. In the light of the foregoing, I reject the submissions of their counsel and order the claimants to pay the judgment debt of VT192,800 by way of five (5) equal monthly installments of VT38,560 commencing on the 22 October 2012 until fully paid up.
    

DATED at Port Vila, this 12th day of October, 2012.

BY THE COURT

D. V. FATIAKI
Judge.