IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
CIVIL JURISDICTION
Civil Case No. 7 of 1997
BETWEEN:
HUDSON & CO
Plaintiff
AND:
GREATER PACIFIC COMPUTERan>
Defendant
Coram: Mr Justice Oliver A.
SAKSAK
Mrrt SUGDEN for the
Plaintiff
Mr John MALCOLM for the
Defendant
JUDGMENT
This matter was dealt with in
Chambers held in Open Court on 26th June 1997.
The DefenApplicant sought
orders by way of a Summons dated 27th March 1997 in accordance with with Order 57
Rule 1 of
the High Court (Civil Procedure) Rules, 1964 that:
a) p; &nsp;&nThe note of Costs
sub submitted by the Plaintiff dated the 13th day of December 1.996 for an
amount
of VT 2,107, 121 be ; andn>
1">
class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
b) &nbssp; The Defendant provide
an invoice in taxable form.
p>
The brief facts of the case are
that on or about the 3rd September, 1996 the DefenDefendant/Applicant had
instructed the
Plaintiff, a firm of Barristers and Solicitors to provide
legal services to the Defendant/Applicant on its normal terms and
conditions; These were that the Defendant/Applicant being the client was to
pay VT 20, 000 per hour for all time spent
by a legal practitioner working
on the client's matter or matters and further that the client was also to
pay for all
expenses and out of pockets incurred by the Plaintiff in
relation to the clients matters. It is claimed that the Plaintiff
provided
legal services to the Defendant up to 13th February 1997 when the Plaintiff
filed a Writ of Summons claiming
for the outstanding sum against the
Defendant. It is claimed that at the Defendant's request, monthly bills were
delivered
and as at 13th December 1996 the total account including all
outstanding bills amounted to VT 2,107,121.
In support of the application
for taxation Counsel for the Defendant intended to rely on the Affidavit of
Mr Jan Mark
Pozdena, the Managing Director of the Defendant company. Mr
Malcolm served the Plaintiff and the Court with a copy each of
the said
Affidavit. The affidavit was not filed and no notice of intention to use the
affidavit was given to Mr Sugden.
Notice is required under Order 40, Rule
21. In my opinion that affidavit could not be admitted into evidence and I
so
rule.
In his submission Mr Malcolm
urged the Court to consider the matter as a matter for taxation. He told the
Court that the
matter started on 12th February 1997 and not on the date on
which the Bills were sent. As such the matter is still within the
12 months
rule. Mr Malcolm did not refer any provisions to the Court relating to this.
He further argued that if the
Courts refuses taxation, Mr Pozdena would be
left without remedy to challenge. He argued that taxation is the only avenue
for a client to challenge a solicitor's account. Further, that solicitors as
officers of the Court must do an honest job
and deliver an honest bill. Mr
Malcolm told the Court that he did not dispute that the Plaintiff is
entitled to a judgement
but opposed any judgement given at this stage before
the case for taxation is heard. If Judgement were given, that it be stayed.
Finally Mr Malcolm told the Court that there must be some sureness as to who
owns what and how much and that justice
required that the matter be taxed.
Mr. Sugden in response said that
was no evidence of the note of costs or invoice before thee the Court.
Secondly Counsel
referred the Court to the Orders of this Honourable Court
dated the 27th Day of May 1997 and told the Court that pursuant to
paragraphs 6 and 7 of the said Order, Counsel had written to the Chief
Registrar asking for the matter to be listed for
hearing. Mr Malcolm
conceded and told the Court that the letter should be determined and
judgement be entered.
Mr Sugden further agued that
here was no note of costs before the Court. He submitted that if the Court
gave judgejudgement
it could not be stayed as there was also no application for
stay before the Court. He further argued that the Court would be
clogged if
every solicitor's bill was brought for taxation.
Mr Sugden relied on his own
affidavit dated 23rd May 1997. Mr Sugden read relevarts of his
affidavit avit and Counsel
for the Defendant/Applicant agreed that the unread
parts should be taken as read. This is the only admissible documentary
evidence before this Court on which the Court bases its judgement.
Mr Malcolm er objected to
paragraph 7 of Mr Sugden�s affidavit on the grounds that it was hearsaearsay. I
am bound to
accept that and accordingly rule that part of the affidavit is
inadmissible as evidence.
The issue I have to decide is
whethenot the sum of VT 2, 107, 121 claimed by the Plaintiff as
as
outstanding from the
Defendant/Applicant should be taxed. In answering that
issue I have to ask myself also the question:
Does the Defendant/Applicant
hav right to clam for taxation of costs?
No rules or legislation in
Vanuatu has been referred to me and I find none. Thee I have had to
resorresort to the law
in England. Section 68 of the Solicitors Act 1957 states:
"(1) &nnbsp; Subjectbject to the
viprovisions of this Act, no action shall be brought to recover any costs due
to
a solicitor until one month after a bill thereof has beenvered dance with thth the requirements set out in the nthe next fext
following subsection:
By this provision the answer to
my question would be in the affirmative. However that is a limited or
restricted right
in the sense that it can and should be exercised only
within one month. One month here means one calendar month. If the Defendant
has failed to apply for Taxation within that time and the Plaintiff has
clearly established that he did deliver his bills,
that right is lost.
From the evidence before me, Mr Sugden has deposed to the fact thatelivered monthly bills to M to Mr Pozdena
as often as he
could. (See paragraph 13 of his Affidavit).
In paragraph 21 Mr Susays:
"I then drew bills to date in
all matters and forwarded a letter with the bills, a copy of which is
annexed and marked
"F��
He then referred the Court to
the correspondences that ensured ove following days annexed aned and marked
"G",
"H"; "I" and "J" respectively.
I fint what is said at
paragraph 13 is not consistent with what is said at paragraph 21.
The Bills referred to in
paph 21 are:
le class="Mss="MsoNormalTable" border="0" cellspacing="0" cellpadding="0" width="638" style="width: 478.8pt; border-collapse:
collapse; margin-left: 36.0pt">
|
a) 14th October 1996
|
VT ">VT 365, 168 |
|
b) 16th October 1996
|
VT 158, 430
|
c) 22nd October
1996
|
VT 117, 280 |
|
d)28th October 1996
|
VT 360, 770 |
|
e) 31st October 1996
|
VT 228, 247
|
|
f) 19th November 1996
|
VT 330, 250
|
|
g) 19th November 1996
|
VT 101, 122 |
|
h) 19th November 1996
|
VT 192, 164 |
|
i) 20th November 1996
|
VT 174, 006 |
|
k) 13 December 1996 |
VT 72, 620
|
| 4pt">
l) 13th December 1996
|
VT 110, 414 |
|
m) 13th December 1996
|
VT 57, 102 |
Int">In a letter dated 12th February
1997 referenced "LEGAL MATTERS" which is referred to in the affidavit as
Annexure "F", Mr Sugden says this at the first paragraph:
"We refer to recent
communications and enclose bills in respect of all matters in which we act
for you until such
times as you dismiss us (by Notice to the Court in
matters involving Court Proceedings)�.
From this I draw the conclusion sion
that all bills as listed above from a) to m) were only enclosed in the
letter of
the 12th February 1997 to the Defendant company and that they were
not sent to the Defendant company earlier. I find no evidence
to suggest
that bills were sent earlier by the Plaintiff.
Furthermore, the second
paragraph of Mr Sugden�s letter reads:
"If these bills are not paid
in full within 30 days we will issue process to recover these sums as well�
(emphasis,
mine)
The Defendant fant faxed the
Plaintiff on the same day saying at second paragraph of Annexure "G":
"Again we have come up with a
different figure as per advises and again I still contest the full amount of
close
2, 5 million vatu.�
span lang="EN-GB" style="font-size:12.0pt">Already by this this statement the
Plaintiff was aware that the Defendant was disputing the amount being
claimed. The defendant acknowledged receipt of the
letter of 12th February
1997 together with copies of the bills by letter dated 13th February 1997.
The letter is Annexure
"I".
However, contrary to whao what the
Plaintiff stated in their second paragraph to their letter of 12th February
1997, they
issued a Writ of Summons dated and filed the 13th day of February
1997.
In my judy judgment, clearly the
Plaintiff was bound to abide by his undertaking to afford the Defendant 30
days to pay.
When the Plaintiff filed a Writ of Summons on 13th February
1997, clearly he did so without regard to the Defendant's right
to have the
bills taxed. The Defendant/Applicant applied by way of a Summons for Orders
to have the bills taxed which
was filed on 27th March 1997. The
Defendant/Applicant was in my judgement within the one month requirement.
Finally, therefore as to the
issue of whether or not the Defendant had a right to have the amount of VT
2,107,121 taxed
is answered in the affirmative.
Therefore, the the following Orders
are granted.
1) & p;&nssp; THAT>THAT the note
of costs submitted by the Plaintiff dated 13th Day of December 1996 for an
mountT 2,11 be taxed.
2) ;&nbssp; THAT>THAT the
Plaintiff provide an Invoice in taxable form.
: 1">
3) &nnbsp;;&nspp; THAT>THAT the Writ
of Summons issued by the Plaintiff dated the 13th day of February 1997 is
adjourned sine die.
4) &nbssp;&nnsp;& THAT>THAT any or
all subsequent actions by the Plaintiff in connection with or incidental to
rit omons tayed pending the Taxation.
5) p; &nTHAT the
Plaintiff pays the Defendant's costs of the summons to be taxed if not
agreed.
2 July 1997.
BY THE COURT
OLIVER A. SAKSAK
JUDGE
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/vu/cases/VUSC/1997/17.html
