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Harimaya & Sons (PTE) Ltd v Gawaga Ltd [2010] FJMC 55; Civil Case 58 of 2008 (26 May 2010)

IN THE MAGISTRATE'S COPURT AT LAUTOKA

CIVIL CASE NO 58/08

HARIMAYA & SONS (PTE) LTD
PLAINTIFF

GAWAGA LIMITED
DEFENDANT

RULING

1. The Plaintiff has filed this case on the 14th July 2008 to recover a sum of US$ 10,578.00 among other reliefs.
   
2. The writ of summons had been served on the 16th July 2008 and the defendant has filed the notice of intention to defend on the 17th of July 2008.
   
3. On the 24th July 2008 the defendant has filed a notice of motion seeking the plaintiff to be ordered to give a security for the defendant's cost since the plaintiff company is located out side the jurisdiction of Fiji.
   
4. The case has been called on the 30th July 2008 to hear the notice of motion and the defendant had sought an adjournment to file an affidavit in support of the motion saying that the defendant has overlooked that.
   
5. On the 4th of September the defendant has filed an amended notice of motion along with an affidavit seeking orders for the plaintiff to give security for the defendant's cost, to stay the proceedings until the security is given, and for costs of the application.
   
6. On the 01st October 2008 the matter has been fixed for hearing of the amended notice of motion for the 5th of November 2008. On the 05th November 2008 the Plaintiff had sought an adjournment on the basis that the counsel for the plaintiff was out of the country. Thus the matter has been adjourned to 09.12.08 for hearing of the notice of motion and the plaintiff had been asked to file any necessary affidavits within 14 days and 7 days have been given to the defendant to reply.
   
7. On the 9th December 2008 the plaintiff has been granted another date with the consent of the defendant to file the affidavit. On the 12th December 2008 the plaintiff has filed an affidavit in response.
   
8. On the 29th January 2009 the case has been adjourned to 18.02.09 for hearing.
   
9. On the 18th February 2009 when it was fixed for hearing the case has been just adjourned to 01.04.09 and the defendant has not objected for the adjournment although it appears that the plaintiff has not appeared.
   
10. On the 01st April 2009 both parties have not appeared and the case has been adjourned to 03.06.09.
    
11. On the 3rd June 2009 the case has been adjourned for mention only to 19.08.09 and the defendant has not objected for the adjournment.
    
12. On the 19th August 2009 again the case has been adjourned to 09.09.09 for mention and no party has objected to the adjournment.
    
13. On the 09th September 2009 the case has been adjourned to 30.09.09 for settlement on security for costs.
    
14. On the 30th September 2009 finally the Plaintiff has sought a hearing date on the issue of security for costs.
    
15. On the 23rd December 2009 the matter was fixed for hearing for 12.05.10 and the matter was taken up for hearing and the both counsel were heard on the issue on security for costs.
    
16. The contention of the defendant is that since the plaintiff company is resident out side the jurisdiction of Fiji and since the Plaintiff has no assets in Fiji the court should order the plaintiff to give security for the costs of the defendant. Further the defendant has stated that the Plaintiff Company is situated in Singapore and it does not have any branches in the Fiji Islands and that Singapore is not a scheduled country under the provisions of Reciprocal Enforcement of Judgements Act. The defendant has stated that in the event of the defendant succeeding in its defence and counter claim it would not be able to recover its costs.
    
17. Although the defendant has not filed the defence, in the affidavit filed in support of the amended notice of motion the defendant has set out the grounds of the defence and the counter claim. Further the defendant has asked for 5000 dollars to be deposited as security for costs.
    
18. The plaintiff has filed an affidavit with one paragraph in response to the defendant's notice of motion and has said that the plaintiff has an agent registered in Fiji. However the counsel for the plaintiff informed court on the 12th May 2010 that the plaintiff's address remains the same and the plaintiff need not have a branch in Fiji.
    
19. The counsel of the defendant informed court that they rely on the earlier submissions and the authorities tendered to court. Further the counsel for the defendant said that there had been several adjournments sought by the plaintiff and they ask for costs for this application.
    
20. At this juncture it is pertinent to ascertain the law applicable to this issue. The order xxxiii Rule 4 of the magistrate's court rules reads as follows;
    

4(1) Where a plaintiff does not or does not ordinarily resides in Fiji, the court may either on its own motion or on the application of any defendant require any plaintiff in any suite either at the commencement or at any time during the progress thereof to give security for costs to the satisfaction of the court by deposit or otherwise or to give further or better security.

4(2) The court may direct that security for costs shall be given in any cause or matter in which a similar direction could be given had the action be taken in the High Court.

21. The order xxxiii Rule 5 of the Magistrate's Court rules stipulates that where the court orders costs to be paid or security to be given for costs by any party the court may if it thinks fit order all proceedings by or on behalf of that party in the same suit or proceedings, or connected therewith, to be stayed until the costs are paid or security given accordingly but such orders shall not supersede the use of any other lawful method of enforcing payment.
    
22. The defendant submitted lengthy submissions on security for costs. It has been stated in Aeronave Spa V Westland charters Ltd (1971) 3 All E R 531 that;
    

"It has been the practice of the courts to make a foreign plaintiff give security for costs. But it does so as a matter of discretion, because it is just to do so. After all if the defendant succeeds and gets an order for his costs, it is not right that he should have go to a foreign country to enforce the order."

23. In the Fiji High Court case, Badrul Nisha V Nisar Ali Shah No 197/2006-2 it has been stated that one of the essential elements in an application of this nature is the timing of the application. The defendant has made this application for security for costs in eight days after the writ of summons was served on him. Therefore it can very well be considered as a timely and prompt application.
    
24. There is no dispute regarding the fact that the plaintiff company is a company based in Singapore. Although the defence is not yet filed the defendant has submitted the grounds for defence and counter claim. The plaintiff did not raise any tenable objection with regard to this application. In the circumstances I do not see any reason as to why this court should not order security of costs to be deposited by the plaintiff.
    
25. The only issue the court has to decide is the amount of security for costs. It appears that "the amount of security awarded is in the discretion of the Court, which will fix sum as it thinks just, having regard to all the circumstances of the case. It is not the practice to order security on a full indemnity basis. The more conventional approach is to fix the sum at about two thirds of the estimated party and party costs up to the stage of the proceedings for which security is ordered; but there is no hard and fast rule. It is a great convenience to the court to be informed what are the estimated costs, and for this purpose a skeleton bill of costs usually affords a ready guide." – page 720, Sloyan V Brothers Christian Instruction (1974) 3 All E R 715.
    
26. Thus it is the discretion of the court to order the amount of security for costs which should not be illusory or oppressive. It should be noted that the defendant has not provided an estimated cost apart from asking for 5000 dollars. However having considered the nature and the circumstances of the case I order the plaintiff to deposit 3000 dollars as security for costs.
    
27. The parties in this case have not taken any steps pending the application for security for costs. Therefore I do not see any reason to specially stay the proceedings. Yet I order that the defence of the defendant to be filed only after the security for costs is given.
    
28. The next issue the court has to consider is the costs for this application. The defendant has asked for 1500 dollars costs in the defendant's submissions for security for costs. The ground for asking for costs for this application is shown as the prolongation of the matter since 2008. Even when the plaintiff's counsel addressed the court he mentioned that cost for this application be granted since the plaintiff has sought many adjournments in this case.
    
29. I have set out the events of this case since its inception from paragraph 1 to paragraph 15. It is clearly evident that both parties are equally responsible for this case to be prolonged this far. I have not seen a single instance that the defendant has objected for an adjournment. Any party has a right to expedite a matter without delay. Yet that right should be exercised diligently and such intention should be manifest on record. I do not think it is proper to penalize one party only when both parties appear to have been slack to expedite this matter.
    
30. I cannot imagine as to why it took two years to solve this issue regarding security for costs. Trivial issues which are incidental to the main claim are not meant to be contested for this long or delayed without any reason for this long under any circumstances. If the parties had a genuine intention to proceed with the main issues at least they should have arrived at a settlement with regard to security for costs without waiting for two years. More than 80 per cent of the adjournments have been done with the expressed or implied consent of both parties. Accordingly I do not see it reasonable or just to award costs for this application.
    
31. I order the plaintiff to give security for costs in the sum of 3000 dollars. The amount to be deposited in courts within 14 days. Since the matter is delayed unnecessarily I inform the plaintiff that the matter may be struck out if this amount is not deposited within the prescribed period.
    
32. The defendant is ordered to file the defence in 28 days from today if the security for costs is deposited.
    
33. No cost for this application is ordered.
    

Rangajeeva Wimalasena
Resident magistrate

Lautoka
26.05.2010