Moala v Samoa National Provident Fund Board [2019] WSSC 21 (5 June 2019)

SUPREME COURT OF SAMOA
Moala v Samoa National Provident Fund Board [2019] WSSC 21

Case name:	Moala v Samoa National Provident Fund Board
Citation:	[2019] WSSC 21
Decision date:	5 June 2019
Parties:	Papalii Tavita Moala v Samoa National Provident Fund Board
Hearing date(s):
File number(s):
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Patu F M Sapolu Temporary Justice of the Supreme Court And Former Chief Justice
On appeal from:
Order:	-
Representation:
Catchwords:	costs – determining reasonable contribution –party and party costs – reasonable contribution -
Words and phrases:
Legislation cited:
Cases cited:	Kuwait Asia Bank EC v National Neutral Life Nominees Ltd [1991] 2 NZLR 457 Morton v Douglas Homes Ltd (No.2) [1984] 2 NZLR L20 Tofilau Eti Alesana v Samoa Observer Co Ltd and Savea Sano Malifa
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

PAPALII TAVITA MOALA of Ululoloa, Businessman.
Plaintiff

A N D

SAMOA NATIONAL PROVIDENT FUND BOARD a body corporate established pursuant to the National Provident Fund Act 1972.
Defendant

Counsel:
R Drake for plaintiff
S Leung Wai for defendant

Decision: 5 June 2019

JUDGMENT OF SAPOLU J
TEMPORARY JUSTICE OF THE SUPREME COURT
AND FORMER CHIEF JUSTICE

Relevant legal principles

1. The relevant legal principles and authorities on the jurisdiction of the Court to award costs have been set out in the memorandum as to costs of counsel for the defendant. I will refer to those principles and authorities in the order that they are set out in counsel’s memorandum.

Exercise of discretion

2. The Court has a broad discretion in awarding costs but the discretion has to be exercised judicially. In Civil Remedies in New Zealand (2003) p.717, para 19.2.2, it is stated:
   • “Although the Court’s discretion as to costs is seemingly unfettered, it must of course be exercised judicially. Therefore, it is possible to make some general statements about how the discretion is likely to be exercised in the ordinary run of cases.
   • “The two most important general propositions are:
   • (a) Costs normally ‘follow the event’ so that an unsuccessful party must pay costs to the successful party.
   • (b) Costs are usually awarded on a ‘party and party’ basis, rather than a ‘solicitor and client’ or ‘indemnity’ basis. Except in rare cases, a successful party can only expect to receive a contribution towards the actual legal expenses reasonably incurred”.

Party and party costs

3. The general approach in Samoa, following New Zealand decisions, is to require the unsuccessful party to make a ‘reasonable contribution’ towards the costs ‘reasonably and properly incurred by the successful party’.
4. In Morton v Douglas Homes Ltd (No.2) [1984] 2 NZLR L20, 625, Hardie Boys J stated that the aim ‘is not to fix solicitor’s and counsel’s remuneration, but to impose on the unsuccessful party an obligation to make a reasonable contribution towards the costs reasonably and properly incurred by the successful party’.
5. In Kuwait Asia Bank EC v National Neutral Life Nominees Ltd [1991] 2 NZLR 457, 460, Cooke P said:
   • “[The] guiding principle has been that, except where there is special reason for awarding costs on a solicitor and client basis, orders should be limited to a reasonable contribution towards the successful party’s costs on a party and party basis”.
6. In Tofilau Eti Alesana v Samoa Observer Co Ltd and Savea Sano Malifa (1998) (unreported decision of Bisson J delivered on 16 September 1998) His Honour stated that this Court is not barred by the scale of costs under the Supreme Court (Fess and costs) Rules 1971 and that an unsuccessful party to litigation may be required ‘to make a reasonable contribution towards the costs reasonably and properly incurred by the successful party’.

Determining reasonable contribution

7. In Holden v Architectural Finishes Ltd [1997] 3 NZLR 143, pp. 147 – 148, McGechen J sets out, inter alia, the factors to be considered in determining a reasonable contribution. Some of these factors are:
   • (a) The length of the hearing,
   • (b) The amount of money involved,
   • (c) Whether arguments lacking substance (but not necessarily frivolous or vexatious) were advanced,
   • (d) Poor pleading and/or presentation of the case,
   • (e) The degree of success achieved by the parties,
   • (f) Whether the hearing was lengthened or shortened by the conduct of either party.
8. Other factors which are relevant to determining a reasonable contribution in a particular case are set out in Civil Remedies in New Zealand (2003) pp 219-220, para 19.2.6.

No rule that a ‘reasonable contribution’ means two thirds of the successful party’s costs

9. There is no rule that a reasonable contribution to the successful party’s costs means two-thirds or around two-thirds of the successful party’s costs. As the Court of Appeal observed in Apia Construction and Engineering Ltd v Samoa National Provident Fund [2017] WSCA 6:
   
   • “In appropriate cases costs of up to two-thirds of actual and reasonable costs may be possible. However, there is no rule to that effect and each case must be considered according to its own particular circumstances”.

This case

10. The plaintiff’s statement of claim pleaded two causes of action. At the end of the hearing, the plaintiff withdrew its second cause of action in the face of defences raised by the defendant.
11. The plaintiff’s remaining cause of action raised three issues. Two of these issues were resolved in favour of the plaintiff and one in favour of the defendant. As a result, counsel for the defendant submitted that in practical terms the plaintiff has to pay $8,006.76 to the defendant but the plaintiff had claimed in his statement of claim payment of the sum of $21,773.56 from the defendant. In effect, the plaintiff was therefore unsuccessful.
12. The main issue here was one of statutory interpretation regarding certain provisions of the National Provident Fund Act 1972 and in particular s.25. Section 25 is a complex provision and it cannot be said that the opposing interpretations advanced by both parties were hopeless or without substance. In a sense, this was a test case regarding the correct interpretation of s.25.
13. The legal costs claimed by counsel are also about the same. The difference appears to be that one counsel has charged for matters in respect of which the other counsel has not charged costs. Perhaps, counsel are also claiming different rates for the same kind of work.
14. In all the circumstances, I have decided that each party is to pay his/its own costs.

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TEMPORARY JUSTICE OF THE SUPREME COURT
AND FORMER CHIEF JUSTICE