BHP STEEL BUILDING PRODUCTS
(VANUATU) LIMITED
Plaintiff
AND:
FRANCOIS MARCHAND
Defendant
AND:
ALAIN LEW
Third Party
Coram: Justice Oliver A.SAKSAK sitting in Chambers
Mr. Alain Lew in person and as Authorised Representative of the Plaintiff
Mr. Francois Marchand, Defendant in person.
JUDGMENT ON TAXATION OF COSTS
Following Consent Orders sealed by this Court on 23rd Marc 1998, the Defendant conseconsented to paying the costs of and incidental to the claims and
action taken by the Plaintiff
against the Defendant to be taxed if not agreed.
The Plaintiff submitted a Bill of Costs in the sum of VT1.796.745 which
the Defendant has disputed on grounds that it is an unreasonable
amount. The Court heard
this Application simultaneously with that in respect to costs in Civil Case No. 154 of
1996. The
Defendant advanced the same argument that he agreed only to pay costs in the sum
of VT1.200.000 as costs of both cases.
The Plaintiff also advanced the same arguments and submissions as in
regard to Civil Cases No. 154 of 1996. The Plaintiff submits
that they are entitled to all
the costs as set out in their Bill of Costs.
I have examined the File submitted to the Court by Counsel for the
Plaintiff. I find that the Bill of Costs is based on an hourly
rate of VT20.000 per hour.
This is a reasonable and normal rate charged in Port Vila by solicitors. Claims for costs
on
a solicitor-own-client basis is based on the rate of VT20.000 per hour and this is a
reasonable rate. See Hudson & Co. –v- Greater Pacific Computers Ltd.,
(Judgment dated 10th February 1998. p.11.)
In that case I held that where a Defendant disputes the amount of costs
on the grounds of unreasonableness, the onus is on him
to prove that the times and amount
claimed are in fact wrong (see Ante p.3). Here I find that the Defendant did not produce
evidence to discharge that duty.
The main File is quite voluminous. It contains papers of about 55
centimeters thick. These show the amount of work and time put
into the case by counsel.
Apart from the main File, there are six other files belonging to the Plaintiff Company in
relation
to financial statements. In the light of these documents, I find that in fact
Counsel for the Plaintiff has undercharged for
three services rendered. He has omitted to
charge for two services and he has overcharged on seven items. Further I find that
most of
his charges are reasonable indeed, the total costs claimed is reasonable and I would not
make any taxation on it.
Following are my findings on examination of the main File:-
Items/Services Which Are Overcharged And Which Would Have Been Taxed.
Date |
Hour/Rate
Claimed |
Amou>Amount/VT
Claimed |
Hour/Rate
Allowed |
Amount/VT
Allowed |
24/05/96 |
1 hr @ VT20.000 |
20.000 |
� hr only |
10.000 |
27/05/96 |
3 hrs @ VT20.000 |
60.000 |
2 hrs only |
40.000 |
28/05/96 |
� hr @ VT20.000 |
10.000 |
� hr only |
5.000 |
26/08/96 |
3 hrs VT20.000 |
60.000 |
2 hrs only |
40.000 |
05/11/96 |
1 � hrs |
30.000 |
1 hr only |
20.000 |
12/12/96 |
� hr |
5.000 |
1/10 hr only |
2.000 |
02/07/97 |
1 hr |
20.000 |
� hr only |
10.000 |
TOTAL |
VT205.000 |
|
VT127.000 |
The hours allowed are theerumber of hours as shown
by Counsel in the File. The sum of VT205.000 is an overcharge of which only
VT127.000
would been allowed.
2. Items/Services for Which Counsel Has Undercharged
Date |
Hour/Rate
Claimed |
Amount/VT
Claimed |
Hour/Rate
Actual |
Amount/VT Actual |
27/01/97 |
1 hr @ VT20.000 |
20.000 |
2 hrs |
40.000 |
10/03/97 |
1 � hrs only |
30.000 |
3 hrs |
60.000 |
21/04/97 |
1 hr only |
20.000 |
1 � hrs |
30.000 |
Total Amount Undercharged = |
VT130.000 |
Fhe examination of the File File, I find that the actual number
of hours that Counsel should have claimed are as per column
4 and the actual amount which
he should have claimed are as per column 5. The total amount of costs which should have
been
charged is VT130,000 but only VT70,000 has been claimed for.
3. Items/Services Which Counsel Has Not Charged
Date |
Service Rendered |
Hour/Rate as shown in File but omitted |
19/08/97 |
Perusing all records of Bank Accounts,
Banking Records of Mr. & Mrs. Marchand,
A/c of the Business etc;
A/c of Mr. Lew & Mr. Marchand.
Preparing notes on Banking accounts for purpose of letter to Marchand’s solicitors |
4 hours @ VT20.000 |
19/08/97 |
Preparing letter to Clayton Utz;
Perusing records & Banking Account etc |
3 hours @ VT20.000 |
24/09/97 |
Perusing letter of 19/09/97 from Mrs.
Marchand and preparing a reply |
1 hour @ VT20.000 |
Had these services been claimed for, I would have disallowed the
VT60.000 for 3 hours of work done on 19th August 1997. But I would have allowed
VT80.000 for services rendered on 19th August and VT20.000 for services
rendered on 24th September 1997. In effect the sum of VT100.000 which should
have been claimed is omitted.
Summary
What all these boil down to is this-
(a) That Counsel has overcharged by VT205,000.
(see column 3 of Chart (1))
(b) That Counsel has undercharged by VT230,000.
(see column 5 of Chart (2) plus column 3 of Chart (3))
(c) That the correct amount of professional costs should have been
VT1.690.000 + VT230.000 = VT1.920.000-VT205.000 (overcharged)
= VT1.715.000 + VT106.745 as
disbursement costs which cannot be disputed.
The actual and correct amount of costs against the Defendant would
therefore be = VT1.821.745. This is indeed an increase from
the total sum claimed as at
20/03/98 which is VT1.796.745.
Conclusion
In the circumstances therefore, I reject the Defendant’s
submission that the costs claimed by the Plaintiff in the sum of
VT1.796.745 is
unreasonable. Further, I reject the Defendant’s submission that the sum of
VT1.200.000 is sufficient
to cover the costs of the Plaintiff in both Civil Cases No. 154
and 83 of 1996. The reason for rejecting this submission is
simple. These cases were
separate cases and documents show that work or services rendered in respect of each case
were
different.
Having found as I have, it is hereby certified the sum of VT1.796.745
representing professional fees and costs plus disbursements
is a reasonable amount which
the Defendant is liable to pay to the Plaintiff.
AND IT IS HEREBY ORDERED THAT the Defendant pays to the Plaintiff the
sum of VT1.796.745 within 14 days from the date of this
taxation.
It is further ordered that there be no order as to costs of the
taxation.
Dated at Port Vila, this 9th day of July 1998.
BY THE COURT
Oliver A. SAKSAK
Judge.
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