IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0346 OF 1998

Between:

HUANG TZUNG-HAO and
YANG MAN-HWA
Plaintiffs

and

A TEAM CORPORATION LIMITED
YU-SHIN-HO
Defendants

Mr. R. Naidu for the Plaintiffs
Mr. S. Maharaj for the Defendants

DECISION

By summons dated 27 March 2003 the defendants have applied for an order that this action be struck out on the ground that the plaintiffs have failed to file and serve on the defendants the ‘Plaintiffs’ List of Documents’ and ‘Affidavit Verfying’ same pursuant to orders made on Summons for Directions and/or in the alternative an order that the plaintiffs do provide security for costs of this action in the sum of $15,000.00 by way of cash deposit.

I have before me for my consideration an Affidavit in Support and a Reply thereto from Pratap Singh who is the Attorney for the defendants under a Power of Attorney registered No. 32088. As ordered, both counsel filed written submissions and I have considered them.

The pleadings in this case are complete and it only leaves Pre-trial Conference to be held and an application by the plaintiff is pending before the Deputy Registrar in this regard awaiting a decision in the present application by the defendants for ‘security for costs’.

Although the application for security for costs includes an order for ‘action to be struck out’ I notice that there is already an Affidavit Verifying Plaintiff’s List of Documents filed 9 April 2003. Hence I do not have to deal with application to strike out.

Security for costs

As for security for costs the application is made under Order 23 r. (1)(a) of The High Court Rules 1988 which provides:

1(1)	Where, on the application of a defendant to an action or other proceeding in the High Court, it appears to the Court –

(a)	that the plaintiff is ordinarily resident out of jurisdiction, or

(b)	…..

(c)	…..

(d)	…..

then if, having regard to all the circumstances of the case, the Court thinks it is just to do so, it may order the plaintiff to give such security for the defendant’s costs of the action or other proceeding as it thinks just. (emphasis mine)

The defendants are entitled to make the application. The onus is on them to prove that the plaintiff is “ordinarily resident” out of jurisdiction and this they have done. In fact there is no dispute on this aspect.

The power to make an order for security for costs is entirely discretionary (vide Aeronave S.P.A. v Westland Charters Ltd [1971] 1 W.L.R. 1445). It is stated in The Supreme Court Practice 1988 Vol 1 Or. 23/1-3/3:

“On the other hand, as a matter of discretion, it is the usual ordinary or general rule of practice of the Court to require the foreign plaintiff to give security for costs, because it is ordinarily just to do so, and this is so, even through by the contract between the parties, the foreign plaintiff is required to bring the action in England (see Aeronave 1445, supra).

Discretionary power to order security for costs

The wording of the said Or.23:

“…confers upon the court a real discretion and indeed the Court is bound, by virtue thereof, to consider the circumstances of each case, and in the light thereof to determine whether and to what extent or for what amount a plaintiff (or the defendant as the case may be) may be ordered to provide security for costs.” (Supreme Court Practice, ibid, supra) 

On the facts and circumstances of this case pursuant to the said Order and in the exercise of the Court’s discretion this is a proper case in which the application for security for costs ought to be granted.

Time for making application for security

The fact that the application was not made long before the close of pleadings or even subsequently when order for interrogations were made, is no bar to making the application. It is the plaintiffs’ counsel’s submission that it would be unfair to order ‘security costs’ at this stage of the proceedings. He says that it is an abuse of the process of the Court to come to court at a ‘very late stage in the day’. In this regard the following ‘Notes’ to Or.23/1-3/2 in the Supreme Court Practice (supra) under the caption ‘Time for making application for security’ are pertinent to the issue before me and I have borne these in mind in considering the application:

The right to security is not waived by service of the defence, and an order for security may be made at any stage of the proceedings (Re Smith (1896) 75 L.T. 46, C.A.; and see Arkwright v Newbold [1880] W.N. 59; Martano v. Maan ((1880) 14 Ch.D. 419, C.A.; Lydney, etc. Iron Ore Co. v. Bird (1880) 23 Ch. D. 358).

An application for security may be made after judgment for the costs of further proceedings directed by the judgment as e.g. the taking of an account before an Official Referee (Brown v. Haig) [1905] 2 Ch. 379)

Delay in making an application for security for costs, however, may be relevant to the exercise of court’s discretion to order security. Although in most cases delay is not a decisive factor, it may be treated as important, especially where it has led, or may have led the plaintiff to act to his detriment, or may cause him hardship in the future conduct of the action (Jenred Properties Ltd v. Ente Nazionale Italiano per il Turismo, Financial Times, October 29, 1985, C.A.).

It is to be noted that there was an application herein to dissolve the mareva injunction granted herein and which the Court did conditionally. The order made on 1 December 1996 was as follows:

The Mareva injunction granted on 9 July 1998 is ordered to be dissolved upon condition that the defendants deposit into Court the sum of $33,659.53 within 21 days from the date of this decision to abide the determination of this action. Failure to comply with this order will mean that the Mareva injunction will remain until the trial of this action. It is further ordered that this action be entered for trial with the least possible delay with liberty to either party to apply. The costs of the hearing are to be paid by the defendants to the plaintiffs in the sum of $200.00 within 14 days.

Order for security for costs was also applied for and as stated above I made ‘no other orders as sought’ at that stage with liberty to apply generally.

It appears that the mareva injunction is still intact as the conditions attached to the said order were not fulfilled. Hence a certain sum of money would still be in the defendants’ bank to satisfy any judgment that may be pronounced in favour of the plaintiff.

Conclusion

I have considered the pleadings filed in this action and as required I have looked at the plaintiffs’ prospect of success as well as the defence filed by the defendants.

In the outcome, bearing in mind all the circumstances of the case, on the authorities and in the exercise of the Court’s discretion I grant the application and I order that the plaintiffs provide security for costs in the cash sum of $7500.00 to be deposited into Court within 28 days of this Order AND it is further ordered that the Pre-trial Conference be held within six weeks from the date of this decision and application made to enter the action for trial without further delay thereafter.

D. Pathik
Judge

At Suva
22 July 2003