OF Nelson Properties v Sia' Aga [2010] WSSC 54 (11 June 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

O.F. NELSON PROPERTIES LIMITED
a company duly incorporated and having its registered office at Apia
and carrying on business at Palauli in Savaii.

Plaintiff

AND:

SALU SIA'AGA, LELEISI'UAO OTINERU, SAVEA AU, LEMOA ESEKA,
LATU ASO, MATA'AFA TU'UUTA, MA'I MEKI, AUTAGAVAIA UIESE
and TOLUONO PENE, TOLUONOE FETI, TOLUONO MAMERE, TOLOUONO
HAN, TOLUONO NOME, being true heirs of TOLUONO MATENA LEALI'IFANO,
all Matai, appearing personally and in their capacity as representatives of
Alii and Faipule of Vailoa, Palauli.
Defendants

Presiding Judge: Justice Slicer

Counsel: R Wendt and V G Kruse for the Plaintiff
T Malifa for the Defendants

Hearing: 15 February, 30 March, 6, 15 April, 29 April and 24 May 2010
Judgment: 11 June 2010

JUDGMENT (NO.2) OF SLICER J

1. Following the judgment of this Court delivered on 29 April 2010, the successful Plaintiff sought orders for costs on the action, two hearings, an appeal and interlocutory matters including two applications for injunctions and separately for Contempt of Court.
   
2. The history of proceedings are stated in the primary decisions of Sapolu CJ ([2008] WSSC 19]), Slicer J ([2010] WSSC 29 April) and of the Court of Appeal ([2008] WSCA 14).
   

PROCEEDINGS

3. The original trespass occurred in July 2004, following which the Plaintiff commenced proceedings in trespass. Following unsuccessful attempts of resolution, the Plaintiff obtained an Interlocutory Injunction on 27 September 2004. The subsequent Contempt proceedings resulted in adverse findings and admonishment. Further legal resources were required to advise the Plaintiff during aborted negotiations of December of that year. The action progressed to a hearing held on 20, 21 December 2006, 26 November 2007 and 22 April 2008 with reasons and judgment published on 28 April 2008.
   
4. The matter was appealed to the Court of Appeal which heard the matter on 16, 17 September 2008 and published its reasons on 19 September. The primary Judge and Court of Appeal either reserved or remitted the question of costs. The parties again trespassed on and occupied the land. Further contempt and injunctive orders were sought and/or obtained. The matter came to this Court for hearing the balance of proceedings, in the light of the appellate decision, on 15 February, 30 March, 6 and 15 April 2010 with judgment delivered on 29 April.
   
5. The proceedings were long, and complex, the documents voluminous, the evidence extensive and the proceedings protracted. The advice of senior counsel outside of Samoa was sought and obtained. At one stage, the Attorney General was invited by the Court of Appeal to advise the Court in the matters of public interest and Constitutional importance during its hearing.
   
6. The Plaintiff is entitled to its costs which ought to follow the event (Colgate-Palmolive Co and Anor v Cussons Pty (1993) FCR 225). Those costs are ones arising from the interlocutory proceedings, both of the defended hearings and the appeal.
   
7. The questions remaining are those of quantum and whether indemnity or party/party costs ought to be awarded.
   

QUANTUM

8. The Plaintiff submitted an itemised Bill for an amount of $178,219.74. The statement of fees claimed;
   

"All times costed services rendered for all conferences, consultations, research, correspondences, opinions and advices in regard above-named court case; to all attendances to teleconferences, and procedures relating to said court case; to perusal and review of all documentations and electronic mails in relation thereto; to all matters incidental; due care, skill and consideration...$142,072.50."

9. The Court and the Defendant were entitled to receive a little more information and detail. The Plaintiff was not required to produce an item by item statement and the integrity of the calculation is not doubted. But the short statement makes assessment difficult. The Court is obliged to do the best it can.
   
10. The figure of $140,000.00 represents 700 hours work of a solicitor at an hourly rate of $200.00. Some of the work performed by secretaries and paralegal staff would be charged at a lower rate. The advice of senior counsel and counsel's fee on the hearing would be higher. Comparative cost analysis suggests that each day of trial requires more than 3-5 days preparatory or interlocutory work. The employment of 2 counsels for the preparation and hearing of the appeal was reasonable. A rough calculation, albeit to the advantage of the Plaintiff shows that 14 days hearing time (including procedural and interlocutory hearings or Court attendance) would require some 70 days of gainful work. Given that, experience shows that much work is performed outside of the sitting times an estimate of 700 hours work is not unreasonable. To that must be added time spent in the preparation and drafting of affidavits and of written submissions. The cost per hour for a solicitor, counsel and paralegal employee has varied over the last 6 years. In the recent appeal of Worship Centre v Hotel Millenia, the Court of Appeal accepted as a reasonable starting point senior counsel's fee of $350.00 per hour. The hourly rate of $200.00 stated above is an appropriate or average figure to take into account the cost differentials over some 6 years.
    
11. As the appellate and primary Judge in two of the three hearings, I can attest to the amount of work required in the conduct of these proceedings.
    
12. The claimed figure of $142,000.00 is not unreasonable.
    
13. The disbursements of $12,820.76 accord with my own experience, in the conduct of this case, of the volume of photocopies required the need for translation and the necessity of employing process servers. The filing fees and stamp duty costs are fixed as is the 15% VAGST component.
    
14. The quantum of fees is assessed at $178,200.00.
    

INDEMNITY COSTS

15. The Plaintiff seeks assessment of its costs on an indemnity basis.
    
16. The components of the action can be broken into five parts namely;
    
    1. the interlocutory applications for injunctive relief and the contempt proceedings taken in 2004 and advice required for the attempted negotiations;
       
    2. the hearing before the Chief Justice;
       
    3. the appeal to the Court of Appeal;
       
    4. the interlocutory proceedings in 2009/10 involving injunctive relief and further contempt sanction;
       
    5. the continued hearing in 2010.
       
17. The principle governing indemnity costs have been clearly stated in this jurisdiction. In Polynesian Limited v Samoa Observer [1999] WSSC 35, the Court adopted the principles as stated in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 240. The general principles are:
    
    1. The Court ought not depart from the ordinary rule that costs be ordered on a party and party basis unless there are special and identified circumstances
       
    2. Those circumstances require some special or unusual feature in the case which include:
       
       1. That a party has acted unreasonably in pursuing a wholly unmeritorious or hopeless claim or defence
          
       2. A case which is commenced or pursued for an ulterior motive
          
       100. A party shows willful disregard of the known facts or clearly established law.
            
18. A contempt of an order made in the course of the proceedings or repetition of a breach of an injunctive order are clearly special circumstances. Persistence with a claim or the aggravation of damages in the conduct or persistence with conduct during the course of the hearing would also come within the principles stated above.
    
19. There is a broad discretion in relation to an award of costs.
    
20. Ordinarily costs should be awarded to the successful party. Where the State is a party and the question involves a matter of public importance or one affecting the operation of a Constitutional question a Court might require the parties to pay their own costs or make an order in favour of the unsuccessful party (Ta'amalo and another v The Attorney General (unreported CA 2/95 B, August 1995; A v L (unreported CA 21/93, March 1994; The Attorney General v Saipaia Olomalu [1980-1993] WSLR 42). In these proceedings the Plaintiff was a private, not a State entity. The appeal was one of public importance and involved an important interpretation of the Constitution. The Defendants were entitled to 'test' the validity of statutory enactments and common law principles in the light of the Constitution. They ought not be punished by indemnity costs.
    
21. The same can be said with less force on the hearing before the Chief Justice. The Court accepts the Plaintiff's contention that the Defendants persisted with their defence and counterclaim though obduracy. But they did confine their argument to the Constitutional point. In doing so they shortened the proceedings and permitted the Court to concentrate on a matter of public importance. They will not be punished in costs which will be assessed on a party/party basis.
    
22. The interlocutory costs are different. The Defendants chose to use 'direct action' and occupation as their remedy. They were entitled to test the law, even by a token trespass and subsequent proactive action. They were entitled to seek declaratory relief. But they chose to occupy and harm the Plaintiff's land. They repeated that conduct in face of a decision of the Court of Appeal of Samoa. Some of the Defendants committed contempt of orders of their Supreme Court. They ignored injunctions granted by their Judges. In challenging the law of Samoa they disobeyed their own institutions, and placed themselves, their titles and village above the law. Indemnity costs are awarded.
    
23. The hearing, continued in 2010, initially concerned, in part, the plea of limitation and a contention about the meaning of the decision of the Court of Appeal. The Defendants prolonged the hearing with a repetition of their rejected challenge. They made little attempt to concede the question of quantum of damages. They maintained their obduracy. Indemnity costs are awarded.
    
24. The Court has reached different conclusions on the differential assessment of costs. It is necessary, as best one can, to determine the proportions of the award. The following percentage assessments will be used:
    

Interlocutory Proceedings 2004/05	at 10%	= $17,820 at 90%	$16,038
Hearing before Chief Justice	at 25%	= $44,550 at 66%	$29,403
Appeal	at 30%	= $53,460 at 66%	$35,283
Interlocutory Proceedings 2009/10	at 10%	= $17,820 at 90%	$16,038
Hearing 2010	at 25%	$44,550 at 90%	$40,095
TOTAL			$136,857

25. Costs are assessed in the sum of SAT$136,857.00.
    

ORDER

1. The Defendants or their estates pay the Plaintiff costs in the sum of $136,857.00.
   

JUSTICE SLICER