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Lawrence v Stevens [2008] VUSC 66; Civil Case 55 of 2007 (29 January 2008)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 55 of 2007

BETWEEN:

AIDEN LAWRENCE
Claimant

AND:

MRS. MONIQUE STEVENS
First Defendant

AND:

THE MINISTER OF LANDS
Second Defendant

AND:

THE DIRECTOR OF LAND RECORDS
Third Defendant

Coram: Justice C.N. TUOHY

Counsels: Mr. Sugden for Claimant
Mr. Leo for 1st Defendant
Ms. Williams and Mr. Botleng for 2nd and 3rd Defendants

Date of Conference: 29th January 2008
Date of Decision: 29th January 2008

ORAL RULING

1. The first defendant has made an application for security for costs in this matter by written application, filed as long ago as 6th September 2007. At the last conference on 13th November I made an order that any sworn statements in response by the claimant were to be filed and served by 7th December 2007 and indeed a sworn statement in response to the first defendant’s brief sworn statement was filed on 16th November.

2. The conference today is the first conference since 13 November 2007. Mr. Leo appeared on behalf of Mr. Nalyal who has with virtually no notice had to devote his time to a criminal case. Mr. Leo sought to adjourn the application for a security for costs as he was not ready to argue it. The Court was not prepared to adjourn the application for security for costs for a number of reasons.
   
3. First, it has been before the Court for some months now. Secondly it is a very simple matter. The sworn statements in support and in opposition are remarkably brief and can be read and absorbed in a matter of seconds or minutes. The law involved in well known and is set out very clearly in R 15.19 and 15.20. Furthermore, it is the Court’s duty to manage cases expeditiously so that the parties can get their dispute heard in Court as soon as possible. With the present pressure on the Court, if there was to be an adjournment of this application, it would have to be for a period of minimum two and more likely three months. Therefore in my view, Mr. Leo is a competent counsel and ought to be able to argue this matter at very short notice. Therefore his application for adjournment was declined and I heard argument.
   
4. R 15.19 provides that the Court may order a Claimant to give security for costs only if the Court is satisfied that one of the matters listed in R 15.19 exists. Here there is no suggestion that any of the circumstances set out in R 15.19 (a) – (e) inclusive exist. The case in based on the last subparagraph (f), that the justice of the case requires the making of the order.
   
5. Here the sworn statement in support of the application is remarkable for its brevity. It consists of five one sentence paragraphs. In substance, it alleges that the claimant is unemployed and that he doesn’t have any assets and that the first defendant believes that if an order for costs is made against him, he would not be able to pay it. In other words the sole ground for requesting an order for security for costs is that the Claimant has no assets or ability to pay costs in the event that the Claimant is unsuccessful.
   
6. Mr. Sugden has cited some fairly old but nevertheless good authority to the effect that such an allegation of itself is insufficient to justify the Court in making an order for security for costs.
   
7. However, more to the point, the Claimant has filed a sworn statement stating that he is not without assets, but indeed owns a house at Fresh Wota which is unencumbered and worth in the vicinity of VT 4,000,000. Therefore, the sole factual basis relied upon by the first Defendant is contradicted.
   
8. Mr. Leo has suggested that I should disbelief the Claimant’s assertion that he owns that house. However, there is absolutely no reason for me to disbelief his sworn statement. It may be that he could have supported it by annexing some documentary evidence. Nevertheless, he has stated that clearly on oath and there is not one skerrick of evidence to suggest that he is not telling the truth. I therefore, as I must, accept his sworn evidence. Therefore, he is not without assets, he has assets which would be amply sufficient to pay any order for costs in this case. The application for security for costs is therefore refused.
   
9. Having heard this decision, Mr. Sugden applied for costs on the application for security for costs on the basis that his client has been successful and expended legal costs in opposing the application. I think there is no answer to this application for costs. Once the Claimant filed a sworn statement showing that he did have assets it would have been appropriate for the first defendant to have withdrawn the application in which case, she probably would have escaped without an order for costs.
   
10. However, she did not do so, she maintained the application which required preparation and argument today. However, not much time has been required, about 40 minutes this morning and probably an equal sort of time in preparation. I will fix costs in the basis of one and half hours time at VT 10,000 an hour. There will be an order for costs in respect of this application in favour of the claimant in the sum of VT 15,000.
    

Dated at Port Vila, this 29th day of January, 2008

BY THE COURT

C.N. TUOHY
Judge