IN THE COURT OF APPEAL OF SAMOA
Stevenson v Apia Construction & Engineering Ltd [2018] WSCA 6

Case name: 	Stevenson v Apia Construction & Engineering Ltd	
		
Citation: 	[2018] WSCA 6	
		
Decision date: 	25 October 2018	
		
Parties: 	TREVOR WAYNE STEVENSON (Appellant) and APIA CONSTRUCTION & ENGINEERING LIMITED (Respondent)	
		
Hearing date(s): 	16 October 2018	
		
File number(s): 	CA 13/17	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Court of Appeal of Samoa, Mulinuu	
		
Judge(s): 	Honourable Justice Fisher
Honourable Justice Harrison
Honourable Justice Tuatagaloa	
		
On appeal from:	Supreme Court 	
		
Order:	The appellant is ordered to pay the respondent $8,350.00 in costs.	
		
Representation: 	Charlie Vaai for Appellant 
Travis Lamb for Respondent	
		
Catchwords: 	Indemnity costs	
		
Words and phrases:		
		
Legislation cited:	NZ High Court Rules r 14.6(4).	
		
Cases cited:	OF Nelson Properties v Sia’Aga [2010] WSSC 54; Letele v Filia [2011] WSCA 2.	
		
Summary of decision:		

CA 13/17

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

TREVOR WAYNE STEVENSON
Appellant

AND:

APIA CONSTRUCTION &
ENGINEERING LIMITED
Respondent

Coram:	Honourable Justice Fisher
		Honourable Justice Harrison
		Honourable Justice Tuatagaloa

Hearing: 	16 October 2018

Counsel:	Charlie Vaai for Appellant 
		Travis Lamb for Respondent

Judgment:	25 October 2018

JUDGMENT OF THE COURT
Introduction
1.	The respondent applies for indemnity costs following the dismissal of this appeal for want of prosecution. We have concluded that indemnity costs are justified. 
The background
2.	The respondent was successful in a long-running dispute over a construction project it had contracted for with Samoa National Provident Fund (“SNPF”). The appellant had acted as solicitor for the respondent throughout the litigation. Mr Jason Goodall of the New Zealand bar had appeared for the appellant. This Court upheld an arbitration award in favour of the respondent. The result was that SNPF was required to pay the respondent about $2.8 million including costs. 
3.	SNPF paid the required sum to the appellant. The appellant held the funds in trust for the respondent. A dispute then arose between the respondent and the appellant over the use to which the appellant put the funds. The respondent’s complaints were expressed by Mr Lamb as follows:
(a) 	The Appellant deducting his own personal debt (circa $491,000) to SNPF from the judgment sum that was paid by SNPF without the Respondent's knowledge;
(b) 	The Appellant deciding unilaterally to pay the Respondent $750,000 from the total judgment sum;
(c) 	The Appellant transferring the balance of circa $1.6 million from his firm's trust account to a newly created private account in a different bank.
4.	To prevent the appellant from dissipating the funds the respondent obtained a Mareva Injunction from the Supreme Court on 15 and 16 November 2017.
5.	The appellant filed an application to set aside the Mareva Injunction on 23 November 2017. The application was dismissed by the Honourable Chief Justice Sapolu on 29 November 2017.
6.	The appellant filed this appeal on 4 December 2018. It was an appeal against the decision of the Chief Justice to dismiss his application to set aside the Mareva Injunction.
7.	Having filed his notice of appeal, the appellant declined to file a statement of defence to the substantive proceedings in the Supreme Court. The reason given was that he would wait until the appeal to this Court was resolved. We can see no justification for that.  It was always going to be necessary to resolve the substantive proceedings. Only then could one know how the fund received from SNFP was to be apportioned between the parties. 
8.	Adding unnecessarily to the delay was the appellant’s decision to engage Mr Goodall to represent him in the dispute with the respondent. Understandably, the respondent applied to have Mr Goodall recused as counsel. We are surprised that it was ever suggested that Mr Goodall could represent Mr Stevenson in a dispute with their own former client. Although costs as between solicitor and client was a different aspect of the case, the fact is that Mr Goodall had formerly been acting for that client in the same case. 
9.	The appeal was due to be heard in the session commencing 9 April 2018. By March 2018 the recusal application was still unresolved. The respondent took the pragmatic approach of withdrawing the recusal objection rather than delay the appeal. The appellant was advised of this on 15 March 2018. The appellant’s response was that by that stage he could not be ready in time to conduct the appeal.  His application for an adjournment was granted by the Chief Justice over the objections of the respondent. 
10.	Coincidentally the appellant had failed to file a proper record on appeal within the time required by the Court of Appeal Rules. 
11.	On 22 August 2018 the Registrar advised the parties that the appeal was to be heard at the Court of Appeal session due to commence on 16 October 2018. In accordance with normal practice, the Registrar provided counsel with a copy of the Court of Appeal Practice Note. The Practice Note required the appellant to file his synopsis of submissions and chronology by 24 September 2018. 
12.	The appellant failed to file a synopsis of submissions and chronology. 
13.	On 26 September 2018 the appellant’s counsel wrote to the Court seeking an adjournment on essentially four grounds: 
(a) 	The medical difficulties of the appellant. No medical certificate was produced. But without doubting the appellant’s continuing ill health, he was represented by counsel in what would certainly have been an appeal conducted on the papers alone.  
(b) 	The recusal application. But this should not have been advanced as a reason for an adjournment. The appellant knew perfectly well that the respondent had withdrawn its opposition to Mr Goodall’s appearance in the Court of Appeal, whatever the position may have been in the Supreme Court. 
(c) 	The complaint to the Samoan Law Society. The respondent had made a complaint to the Society. But this had nothing to do with the hearing of the appeal.
(d) 	The appellant’s desire for a settlement conference. Following an unsuccessful mediation the appellant sought a judicial settlement conference to resolve the substantive issue. But the prospect of voluntary negotiation, with or without the assistance of a third party neutral, is never a reason for slackening expedition in formal proceedings. Pursuing formal proceedings at maximum speed encourages parties to settle, not the reverse. The two should always be run in tandem. 
14.	We refused the adjournment application. 
15.	On 15 October 2018, the day before the appeal was due to be heard, the appellant advised that he intended to abandon the appeal. When it was called before us on 16 October 2018 we dismissed the appeal on the respondent’s application. The respondent applied for indemnity costs. 
The application for indemnity costs
16.	Whether to award of costs is always discretionary but they normally follow the event. In other words, a losing party normally pays the successful party. In this case the respondent is the successful party. It is undoubtedly entitled to costs. 
17.	Quantum is also discretionary. Each case is to be considered individually but indemnity costs are normally awarded only where there is some special feature. Qualifying special features can include:
(a) 	That a party has acted unreasonably in pursuing a wholly unmeritorious or hopeless claim or defence;
(b) 	That a case has been commenced or pursued for an ulterior motive; 
(c) 	That a party has shown a wilful disregard of the known facts or clearly established law; or
(d) 	Irresponsible conduct of the proceedings in a way which needlessly prolongs the proceedings or needlessly increases their cost.
18.	In this case we are satisfied that the appellant has been using this appeal as an instrument of delay in the expectation that the respondent would settle out of court. The appeal would never have resolved the real issue between the parties. It was confined to a side issue, namely the security of the fund pending the substantive outcome. Both parties have always had a legitimate claim on some part of the fund in dispute. If the appellant had been genuinely interested in having the dispute determined he would have progressed the substantive proceedings in the Supreme Court as quickly as possible. The same would have applied to the appeal to this Court. Instead he has used the appeal as an excuse to obstruct progress in the substantive proceedings. 
19.	Indemnity costs are appropriate. The appeal was brought with an ulterior motive. The proceedings have been needlessly prolonged. 
20.	As to quantum, the respondent has provided a detailed breakdown of its costs totalling $9,557.50. They appear reasonable. However, they include $1,207.50 in VAGST. The respondent is a commercial entity. As we have not been advised otherwise, we will assume that it is VAGST registered and therefore able to claim a refund of the VAGST. 
21.	The appellant is ordered to pay the respondent $8,350.00 in costs.

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE TUATAGALOA