Telecom Samoa Cellular Ltd v Sauaga [2003] WSDC 4 (15 April 2003)

IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

BETWEEN:

TELECOM SAMOA CELLULAR LIMITED
a duly incorporated company having its registered office at Apia.
Judgment Creditor

AND:

ASALEMO SAUAGA
of Vaiusu, Operations Manager, Samoa Port Authority.
Judgment Debtor

Counsel: R Drake of Drake & Co. for the Judgment Creditor
P Fepuleai of Fepuleai & Schuster for the Judgment Debtor

Date of hearing: 19 August 2002
Date of decision: 15 April 2003

ORAL DECISION OF NELSON, J

On the 10^th September 2001 following an application by the Judgment Creditor, this Court made a judgment summons order against the Judgment Debtor for payment of the sum of $358.60 being the balance said to be owing on the original judgment entered in this matter.

Subsequently, the Judgment Debtor filed applications to not only stay the issuing of a warrant of committal for non-payment of this sum but also to review the judgment summons order that had been made by the Court. At the hearing of this application the parties agreed it was not necessary to call oral evidence and that the Court could determine the matter based on the affidavits filed. It was clear that the issue or the matter at issue was the question of costs incurred by Judgment Creditor's counsel subsequent to the entering of judgment but after the original debt had been paid and satisfied by the Judgment Debtor.

It was argued by the Judgment Debtor that these costs were not properly incurred and should not be allowed by the Court to form part of the original judgment or the judgment summons order. The amount of the judgment summons order was, as I have stated $358.60. It appears from the documents produced before the Court that this amount was in fact a mixture of the costs of Judgment Creditor's Counsel and accrued interest.

As to the issue of interest, Judgment Creditor's counsel clarified in her oral submissions that this was interest estimated to be due and owing up to the end of November 2001. Why the end of November 2001 as opposed to the end of October 2001 or December 2001 was considered applicable was not explained, but it seems this estimate was included in the judgment summons application as it was not known exactly when the Judgment Debtor would pay off and satisfy his liability.

This is a dangerous practice because the Judgment Debtor is only liable for interest actually accrued up to the date of settlement. He is not liable for interest estimated to some other date which may be arbitrarily chosen. A judgment summons application should reflect a fixed claim for interest up to the date of filing and it should also make provision for interest up to the date of settlement of the debt by the Judgment Debtor. The Court does recognise that the present Judgment Summons form inadequately provides for such matters but it is clear these forms should be amended so that it properly reflects what the Judgment Debtor is liable in law to pay.

In this particular matter, counsel for the Judgment Debtor conceded quite properly that post-judgment interest is payable on the original judgment at the prescribed rate. I note there has been a delay in having this matter argued and disposed of, as the Court file went missing for a period of time. This is not the fault of either of the parties, I consider it necessary however to fix the amount in dispute and I do so at $358.60 which is the amount claimed by the Judgment Creditor as outstanding and in respect of which the original judgment summons order was made by the Court, Because of the decision I have reached, it is not necessary to go further and calculate what represents interest and what represents costs.

The central question is whether the Judgment Creditor's counsels costs portion of the $358.60 is properly payable by the Judgment Debtor. No break-down of these costs was provided but it seems clear from the documentation before me that the costs were incurred in making application for the judgment summons order, filing and issuing and serving the judgment summons application and like matters which are normally required in the issuing of a judgment summons application. As such these applications are governed by the Judgment Summons Rules 1965 in particular Rules 30 to 32 thereof.

The effect of Rule 31(1) and 31(2) is that where the Court orders payments by instalments, jurisdiction is given to the Court to allow to the Judgment Creditor the costs of a judgment summons application and to allow such costs to be added on to the amount of the judgment. Rule 31(2) provides that such costs shall form part of the judgment "for all purposes" unless the Court orders otherwise.

Rule 30 and Rule 31(3) indicates that such costs include Court fees as set out in the 2^nd Schedule, translation and witnesses fees, together with solicitors costs as per the 3^rd Schedule to the Rules. The 3^rd Schedule allows the princely sum of $12.60 for counsels costs. In 1965, this may have been a kings ransom. But clearly, the 3^rd Schedule scales are grossly out of date and are in need of urgent revision.

Rule 32 goes on to provide that "all costs" (and it is significant that it states "all costs") incurred by the Judgment Creditor in enforcing a court judgment by execution against the goods of a Judgment Debtor, ''or other process'' shall be deemed to be due pursuant to the original judgment. The words ''other process'' are sufficiently wide in my view to include the costs of a judgment summons application and this Rule gives the Court a discretion to approve all costs of a Judgment Creditor incurred in enforcing his or its judgment. This would include the reasonable costs of Judgment Creditor's Counsel. I find that the quantum claimed is not unreasonable and I allow Judgment Creditor's Counsels claim.

For completeness, I add two further matters:

1. There is a similar discretion given to the Court to award such costs under Rule 31 of the District Court Rules 1971.

2. The Court file shows that in this particular case a default summons was issued for the original amount claimed of $1,807.88, which amount the Judgment Debtor eventually paid to the Judgment Creditors counsels office. The default summons was served on the Judgment Debtor on 23 June 2001 and that default summons advised the Judgment Debtor that he had 7 days to dispute the debt or if he admitted the claim, to pay such sum into Court ''and no further costs will be incurred''. It is clear from the words contained further on at the end of the default summons form that the Judgment Debtor is warned that if he does nothing, judgment would be entered and steps could be taken to enforce that judgment. It should be apparent from all this that such further steps could result in further costs being incurred. In this case the Judgment Debtor chose to do nothing until more than one month later on 26 July 2001 when he sent his wife to Judgment Creditor's counsels office to negotiate repayment terms. By that time Judgment Creditor's Counsel, being the diligent counsel we know her to be had already entered judgment and proceeded to issuing of a judgment summons. The Judgment Debtor cannot now come before the Court and complain about the further costs occasioned because of his inactivity and untimely response to the initial proceedings.

For these reasons, the Judgment Debtor's application is dismissed and costs of $150.00 are awarded to the Judgment Creditor.

JUDGE