Westpac Bank Samoa Ltd v Tapusoa [2005] WSSC 51 (1 January 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

WESTPAC BANK SAMOA LIMITED
a duly incorporated company having its registered office at Apia.
Plaintiff

AND:

ATONIO VAINUU TAPUSOA
formerly of Ululoloa, Businessman and lately of 58 Ambury Road, Mangere Bridge, Auckland, New Zealand
Defendant

Counsel: Ms R Drake for the plaintiff

RULING OF VAAI J AS TO COSTS

1. By statement of claim dated the 16^th December 2004 the plaintiff claimed $153,151.60 from the defendant who resides at Auckland, New Zealand being the outstanding balance of monies advanced to the defendant.

The plaintiff also sought interest and solicitor’s costs.

2. The plaintiff was granted leave to effect service of the statement of claim and summons on the defendant at Auckland, New Zealand.

3. As the defendant did not respond the plaintiff moved for formal proof and an affidavit of formal proof dated 21^st July 2005 was sworn by one Mele Tuamasaga an employee of the plaintiff. In paragraph 20 of the affidavit Mele Tuamasaga also sought recovery of legal fees of $25,495.54 and disbursements of $773.41.

4. I questioned the bill of costs bearing in mind the amount of work involved in obtaining judgment and ordered the bill of costs to be submitted.

5. A bill of costs dated 5^th October 2005 was filed which meant that when Mele Tuamasaga swore her affidavit for formal proof on the 21^st July 2005 she had not seen any bill of costs.

6. The bill of costs is essentially for preparing and engrossing the statement of claim; attending to application to effect service overseas; attending to affidavit of formal proof, court appearances and other miscellaneous matters.

7. It is accepted that the defendant pursuant to the security documents he executed was responsible for all legal costs involved in the recovery of any outstanding monies. On the strength of that covenant Ms Drake has assessed her legal fees on 17.5% of the outstanding loan plus disbursement and Value Added Goods and Services Tax.

8. Normally contingency fees are charged by agreement between the client and counsel and normally includes all expenses and disbursements. Ms Drake’s client is Westpac, the plaintiff in these proceedings, and Westpac has obviously agreed to pay Ms Drakees fees on a contingency basis of $25,495.54 plus disbursement of $773.41. But this court will not order the defendant to pay that amount of costs bearing in mind the amount of work involved and despite the covenant in the security documents which binds the defendant to be responsible for all legal costs.

9. The Judicature Ordinance 1961 grants the Supreme Court jurisdiction, power and authority which may be necessary to administer the laws of Samoa.

Section 40 provides for a Rules Committee to make, alter, or revoke rules .............. fixing scale of fees and costs payable ........”

The 1971 Supreme Court (Fees and Costs) Rules (as amended in 1989 as to fees only payable to the Registrar) were made pursuant to Section 40 Judicature Ordinance 1961 and does set out scale of costs but at the same time provides the court with a discretion to fix a sum greater than that set out in the scale.

10. The Supreme Court (Fees and Costs) Rules does not fetter the jurisdiction of the court to grant costs; the court has an unfettered discretion to award or not to award costs. The discretion must of course be exercised judicially and this is consistent with the long standing authority of the House of Lords in Donald Campbell & Co Ltd. V Pollack (1927) AC 732.

11. It follows that the quantum of costs to be awarded is equally discretionary. The general rule assumes that where the applicant succeeds it will have incurred costs because the respondent’s conduct made it necessary for the applicant to bring the proceedings. If the applicant fails, the respondent will have incurred costs defending an action which ought not to have been brought against it.

The complexity; the protracted nature of the proceedings and the conduct of the parties are only some of the factors to be considered when determining quantum of costs.

12. The plaintiff in these proceedings have over a number of years engaged in money lending as well as recovery litigation so that when it engages counsel for recovery work they forward the relevant information for facilitating court action. Principally this is a debt collection exercise and the defendant is not asked to respond to the application for costs.

13. As I have indicated I will not grant the costs claimed. I consider three to four hours work to be a very conservative estimate of the work involved. I also make allowance for the quantum of the debt.

I consider costs of $2,500 plus disbursements of $773.41 to be reasonable costs in the action. I order those costs against the defendant.

JUSTICE VAAI