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Singh v Natadola Bay Resort Ltd [2012] FJHC 879; HBC142.2011 (21 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Miscellaneous Action No. HBC 142 of 2011

IN THE MATTER of LEGAL PRACTITIONERS DECREE 2009 (Section 79 (1) thereof.

AND

IN THE MATTER of the High Court of Fiji Rules Order 62 Rule 26.

BETWEEN:

ANAND KUMAR SINGH
of Suva, Barristers & Solicitor and KOHLI & SINGH a duly registered law firm of 77 Cumming Street, Suva.
PLAINTIFFS

AND:

NATADOLA BAY RESORT LIMITED
a limited liability company having its registered office at Provident Plaza, Suva.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. R.P. Singh for the Plaintiff
Mr. Sharma S for the Defendant

Date of Hearing: 2nd November, 2011
Date of Ruling: 21st February, 2012

DECISION

1. INTRODUCTION
   

1. The Plaintiffs have instituted this action by way of originating summons in terms of the Order 7 rule 2 of the High Court Rules of 1988. The Plaintiffs are seeking an order for taxing of Bill of costs, charges and disbursements delivered to the Defendant. On 25th October, 2011 the Plaintiffs filed another summons in terms of Order 33 rule 3 of the High Court Rules of 1988 seeking Determination of three preliminary issues. The affidavit in opposition to originating summons as well as to the summons dispute the facts. The Defendant not only dispute the bill of costs that submitted, but also dispute any agreement to retain the solicitors and also state that there was no agreement for fees and also dispute the reasonableness of any such agreement if there was one. The Plaintiff has not submitted any fee agreement, and upon the evidence it is clear that the facts are disputed and this matter cannot be dealt by way of originating summons to determine the alleged fees including a fee for a solicitor from Sydney amounting AUS $22,400. The affidavit in support allege that the Ex-Chairman of Defendant Mr. Filix Anthony, had informed that the board approval was obtained to retain the Plaintiffs, but no such approval submitted and the existence of proper authority to retain the Plaintiffs is an issue before the court. The taxation of costs would not be possible by way of originating summons when the facts are disputed as to retaining the Plaintiffs by the Defendant.
   

2. FACTS
   

2. The 1st and 2nd named Plaintiffs are solicitors and they are seeking to recover the fees from the Defendants for the alleged legal services that they have rendered.
   
3. The Plaintiffs have instituted this action for the recovery of the alleged unpaid fees in terms of Order 7 rule 2 of the High Court Rules of 1988, by way of originating summons.
   
4. The Plaintiffs' substantive claim before the Court is by way of Originating Summons seeking "that their bill of costs, charges and disbursements delivered to the aforesaid Natadola Bay Resort Limited (NBRL) be referred to the Master as the Taxing Officer to be taxed ....."
   
5. The Originating Summons does not state either the particulars of claim or the grounds of the claim, contrary to Order 7 Rule 3. The supporting Affidavit of Anand Kumar Singh filed on 19th May 2011, however purports to state the claim as the default by the Defendant to pay the bill of costs rendered by the Plaintiffs for the purported bill of costs, for the alleged retention of the Plaintiffs as solicitors and alleged delivery of legal services on behalf of the Defendant.
   
6. The Defendants position is set out in paragraph 16 of the Affidavit of Vera Madigibuli filed on 11th October 2011 and states as follows;
   

"That the said Bills of Costs rendered by the Petitioner have been and remain disputed on substantial grounds and the issues in contention as between the parties and in summary include:-

(i) The very substantial queries, issues and grounds as raised and particularized in the request for particulars contained in Annexure "B";

(ii) whether there was in existence any agreement with the Petitioner, and if so, what the precise terms and conditions of appointment as Solicitors were;

(iii) the precise nature, extent and scope of legal services allegedly provided and if so, the details of the same;

(iv) Provision and return to the Company of all its files, papers, documents in relation to the alleged services and Bills of Costs authenticating and verifying the scope of services;

(v) The particulars purportedly supplied by the Petitioner being incomplete or deficient in terms of the request made and incomplete or deficient in terms of the request made and incomplete or deficient in terms of failure to provide requested supporting documents;

(vi) The issue of whether the sums claimed in the Application are or have already been partially or fully paid by the Company.

(vii) The question of whether or not the said Bills of Costs as rendered are fair and/or reasonable in all the circumstances;

(viii) The question of whether the said Bills of Costs should be subject of a full ventilation process i.e. an issuance of a Writ of Summons;

(ix) The question of the alleged debt being disputed by the Company on substantial grounds and whether it is proper and regular that the Plaintiffs file a Writ of Summons to recover the alleged debt in lieu of revoking the Summary procedure.

The foregoing is not an exhaustive list, but sets out in summary form several matters in dispute as between the Petitioner and the Company."

7. It is plain from the foregoing, therefore, that the alleged bill of costs by the Plaintiffs are disputed on several grounds including:
   
   • (i) Who engaged the Plaintiffs?
     
   • (ii) What were the alleged terms and conditions of the Plaintiffs engagement?
     
   • (iii) What, if any, was the nature and extent of services rendered?
     
   • (iv) The quantum of fees and disbursements payable, if any, and so forth.
     
8. The affidavit in support indicate that Mr. Filix Anthony, who was the Chairman of the Defendant requested for the legal services, but was unable to submit a written request. Even if there was such a written request, was he authorized to do such an act is another issue, considering the Defendant is a limited liability company, quite distinct from the ex-chairman who was only an appointee by the government. The voluminous documents filed with the affidavit in reply would clearly indicate the disputed facts between the parties and circumstances that has led to alleged accrual of substantial amount of fees.
   
9. The Plaintiffs alleged claims for legal services are unliquidated, unproven and disputed totaling more than F$481,078.43 (Four Hundred and Eighty One Thousand Seventy Eight Dollars and Forty Three cents) together with additional sum of A$64,410.00 (Sixty Four Thousand Four Hundred and Ten Australian dollars) and is presently before the Court by way of Originating Summons. Clearly, given the serious factual issues are in dispute, this Originating procedure is not appropriate.
   

100. JURISDICTION
     

10. The Jurisdiction of the Master of the High Court is governed by Order 59 of the High Court Rules. Significantly, Order 59 Rule 2 sets out the specific matters in respect of specific causes and matters (a – l) in respect of which jurisdiction is conferred.
    
11. The only limb of Order 59 Rule 2, relates to Order 59 Rule 2 (f) – 'costs'.
    
12. The matter before this Court is an unliquidated, unproven and disputed claim in respect of alleged legal services rendered for FJ$481,078.43 together with additional sum of AUS$64,410.00.
    
13. The Order 62 rule 36 deals with the requisite documents for purpose of rule 29 which deals with the procedure of the taxation. Neither rule 29 nor rule 36 deals with an instance where the taxing officer is required to tax a bill of cost of a solicitor as in the present application before me.
    
14. Order 62 rule 29 further states that the proceedings for the taxation must begin after the judgment, direction, order, award or ther determination was entered, signed or otherwise perfected or in cases to which subparagraph (b) applies, within three months after services of the notice given to him under Order 21, rule 2 or Order 22, rule 3. There are provision for the extension of the time, upon the application for leave for extension.
    
15. The taxing of the costs begins with the production of the requisite documents to the taxing officer and the documents are detailed in Order 62 rule 36.
    
16. Order 62 Rule 3 and which sets out the general principles pertaining to 'Costs'. Order 62 Rule 3 (2) states
    

"No party to any proceedings shall be entitled to recover any of the costs of those proceedings from any other party to those proceedings except under an order of the Court."

17. The Plaintiff's claim is not for 'costs' ordered by the Court, but is an unliquidated, unproven and disputed claim for legal services. The Plaintiffs' substantive application by way of Originating Summons is for an Order that it be referred to the Master as Taxing Officer to be taxed.
    
18. The taxation sought by the Plaintiff is in terms of the provisions contained in the legal practitioner Decree
    

"Practitioner may sue for and recover costs

79. – (1) Every practitioner shall be entitled to sue for and recover the practitioner's costs pursuant to any agreement made in accordance with the provisions of this Part, or in the absence of such agreement in accordance with the scheduled of fees established by regulation pursuant to this Part, together with any proper disbursements, in respect of services rendered whether as a legal practitioner.

(2) It shall not be necessary for a practitioner to have such costs taxed prior to instituting proceedings for recovery of those costs. In the absence of taxation no claim may be made by the practitioner for any costs which are, pursuant to such agreement or the appropriate schedule of fees, as the case may be, left to the discretion of the taxing officer.

19. There is no express provision in the Legal Practioners Decree for taxation of costs, and there is no special interpretation for the words 'costs' or 'taxation' and the meaning contained in the High Court Rules should be given to them in the absence of special meaning.
    
20. Assuming the meaning given in the High Court Rules of 1988 the costs should be taxed by the court when there is a dispute in accordance with the rules of taxation contained in the High Court Rules. Mishra Prakash & Associates v. Lautoka General Transport Ltd. [2008] FJHC 367, HBC 136 of 2007 Master Udit in an action to recover the fees of a solicitor from a client by way of summary judgment held
    

'[60] If the reasonableness of the bill was the solitary issue, I would have directed the Plaintiff's solicitors to have it taxed. Conversely, the defendant emphatically denies owing any money. The denal is fortified by ......'

21. It is clear that Master Udit has held in the said case that if there is only a dispute as to the reasonableness of the fees, still he could give directions for taxing the fee, meaning taxing by the court and that is by the taxing officer which includes the Master in terms of the Order 62 rule 1 (2) which interprets the word "taxing officer". So, there is jurisdiction for the taxing officer to deal with any disputed fees between parties but that can be done when there is an action filed for the recovery of the fees, or under Section 77 (2).
    

Section 79 of the Legal Practitioners Decree states as follows

"79. – (1) Every practitioner shall be entitled to sue for and recover the practitioner's costs pursuant to any agreement made in accordance with the provisions of this Part, or in the absence of such agreement in accordance with the scheduled of fees established by regulation pursuant to this Part, together with any proper disbursements, in respect of services rendered whether as a legal practitioner.

(2) It shall not be necessary for a practitioner to have such costs taxed prior to instituting proceedings for recovery of those costs. In the absence of taxation no claim may be made by the practitioner for any costs which are, pursuant to such agreement or the appropriate schedule of fees, as the case may be, left to the discretion of the taxing officer." (Emphasis added)

The Section 79 (1) states that 'sue for and recover' and these words contemplate that a practitioner must institute legal proceedings if he wishes to recover fees and disbursements that are due by a client.

22. The principles underlying these provisions and the nature and extent of their application is well documented in Mishra Prakash & Associates v. Lautoka General Transport Ltd. [2008] FJHC 367, HBC 136 of 2007. In that case, the Plaintiffs solicitors did have instruction to act. They did provide the legal services and thereafter, raised bill of costs for payment. The Plaintiff solicitors issued a Writ of Summons for recovery of monies due based on bill of costs to which a defence was filed. The Plaintiffs solicitors then filed an application for Summary Judgment but this application was refused by the Master of the High Court, but in refusing the said summons for the summary judgment further held that if the issue was only as to the 'reasonableness' of the fee, then that could have been dealt by a direction for taxation.
    
23. Section 77(2) of Legal Practitioners' Decree reads as follows
    

'2) a client may apply to the Court or a Judge thereof for a review of any such agreement and, if in the opinion of the Court or Judge such agreement is unreasonable, the amount payable thereunder may be reduced or the agreement cancelled and such costs shall be payable or shall be determined in such manner as to the Court or Judge may seem fit. The Court or Judge may also make such order as to the costs of such review as to the Court or Judge may seem fit. (Emphasis is added)

24. This provision is applicable when there is an agreement between the parties and this can be directly referred to the court for review and the court can determine the cost in such an instance. This is only when there is an agreement between Solicitor and Client and without that court cannot exercise the discretion provided in the said provision. In the matter before me there is no agreement hence the discretion given above cannot be exercised, to determine taxation directly by court without an action for recovery of fees in terms of Section 79(2).
    

4. CONCLUSION
   

25. The originating summons seeks to refer the matter for taxation of the fees that are allegedly overdue to the Plaintiffs from the Defendant. The Defendant deny the authority to the Plaintiffs to act on behalf of it. No fee agreement submitted. So, clearly Section 77(2) of the Legal Practitioners' Decree is inapplicable and the solicitor needs to file an action for the recovery of the alleged fees through an action in terms of Section 79(2) of the Legal Practitioners' Decree. Since the material facts including the retention of the solicitors, are disputed this matter cannot be dealt by way of originating summons. The originating summons is converted to a writ and the Plaintiff is directed to file a statement of claim within 14 days from today. Considering the nature of the application, and the importance of the legal arguments no cost is awarded for this application.
    

5. FINAL ORDERS
   

1. The originating summons is converted to a writ of summons.
   
2. The Plaintiff is granted 14 days to file and serve a statement of claim.
   

100. No cost is awarded for this application.
     

Dated at Suva this 21st day of February, 2012.

Mr. Deepthi Amaratunga
Master of the High Court
Suva