Krishna Nair v. Madhu Sudhan

• Jurisdiction: Fiji
• Judge: Master U.L. Mohamed Azhar
• Judgment Date: 11 June 2019
• Date: 11 June 2019
• Docket Number: Civil Action No. HBC 88 of 2015
• Counsel: Ms. R. Chand for the Plaintiff,Mr. Anil J. Singh for the Defendant
• Court: High Court (Fiji)

IN THE HIGH COURT OF FIJI

WESTERN DIVISION

AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No. HBC 88 of 2015

Between:

Krishna Nair of 310 Larkspur Dr. E Palo Alto CA 94303, USA, Retired Chef

Plaintiff

v.

Madhu Sudhan of Nasau, Nadi, Farmer

Defendant

Before:

Master U.L. Mohamed Azhar

Date of Ruling: 11^th June 2019

Counsels:

Ms. R. Chand for the Plaintiff

Mr. Anil J. Singh for the Defendant

RULING

Introduction

01. “I have found in my experience that there is one panacea which heals every sore in litigation, and that is costs”. That is the observation of Lord Justice Bowen in Cropper v Smith (1884) 26 Ch. D. 700 (CA) at page 710. Therefore, the rules of the courts in all jurisdictions not only give the courts power to award cost, but also give discretion to secure a cost that a party may be liable to pay to the other in future in any litigation. The Court's Rules in Fiji are not exception. Both the High Court Rules (Or. 23 r. 1) and the Magistrate's Courts Rules (Order XXXIII Rule 4) provide such discretion to the respective courts in Fiji to order for security for cost. The summons before me is the one which was filed by the defendant under the Order 23 rule 1 of the High Court Rules seeking to exercise the discretion of this court and to order the plaintiff to provide security for cost. The defendant sought the following orders in the said summons:

• 1. THAT the Plaintiff do deposit with the Court within twenty-one (21) days of making such order to give security for the costs of the Defendant in the sum of $20, 000.00 (Twenty Thousand dollars) or such sum as the Court may think just, pending of such security and all further proceedings in the above action be stayed;

• 2. THAT in the event that such security is not provided within twenty – one (21) days from the date of the Order herein, the action be struck out against the Defendant;

• 3. THAT the costs of this application be awarded in favour of the Defendant on an indemnity basis;

• 4. THAT further and/or other relief as this Honourable Court may deem just.

02. The summons is supported by an affidavit sworn by the defendant himself. The plaintiff opposed the summons and filed his affidavit in opposition, which was followed by the plaintiff's affidavit in reply. At the hearing of the summons both counsels make orals submissions and the counsel for the defendant tendered his written submission too. On the hand the counsel for the plaintiff sought time to file her submission and she later filed the same.

03. The factual background of this matter is that, the defendant owns the Certificate of Title No 20162 known as Nasau (part of) Lot 3 on DP No 4968 in the District of Nadi and containing more or less an area of 15 acres, 1 rood and 39 perches. The plaintiff entered into a Sale and Purchase Agreement on 22.06.2011 with the defendant to purchase 2 acres of the said land at a price of FJ$ 60,000.00. Though the agreement provided for the plaintiff to pay only FJ$ 40,000.00 initially and to pay the balance $ FJ$ 20,000.00 upon receiving final approval of survey plan, he paid a sum of FJ$ 52, 430.80 at request of the defendant. The balance of FJ$ 7,569.20 was to be paid upon completion of title. However, the defendant allegedly breached the agreement, which triggered the plaintiff to sue the former for the following reliefs:

• a. Specific performance of the said agreement.

• b. Damages for breach of contract in lieu of or in addition to specific performance.

• c. Alternatively judgment in the sum of $52,430.80 together with accrued interest at the rate of 13.5% per annum until final determination of this action.

• d. Interest on the Judgment sum at the rate of 5% per annum from the date of issuance of the Writ of Summons until full payment.

• e. Alternatively the Defendant be ordered to complete the transaction and apply for new certificate of title of the said lot of two acres comprised in CT 20162.

• f. Costs of this action on Solicitor client indemnity basis.

• g. Such further and/or other relief as this Honourable Court may deem just and expedient.

Law

04. The Order 23 of the High Court Rules, which contains 4 rules therein, provides for the discretion of the court to order to provide security for cost and deals with the other connected matters. Whilst the rule 1 deals with the discretion of the court, the other rules 2 and 3 deal with the manner in which the court may order security for cost and supplementary power of the court. The rule 4 prohibits any such order being made against the state. The rule 1 reads as follows:

Security for costs of action, etc (O.23, r.1)

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

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

(b) that the plaintiff (not being a plaintiff who is suing in a representative capacity) is a normal plaintiff who is suing for the benefit of some other person and that there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so, or

(c) subject to paragraph (2), that the plaintiff's address is not stated in the writ or other originating process or is incorrectly stated therein, or

(d) that the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of the litigation,

Then, if having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the plaintiff to give such security for the defendant's costs of the action or other proceedings as it thinks just.

(2) The court shall not require a plaintiff to give security by reason only of paragraph (1) (c) if he satisfies the Court that the failure to state his address or the mis-statement thereof was made innocently and without intention to deceive.

(3) The references in the foregoing paragraphs to a plaintiff and a defendant shall be construed as references to the person (howsoever described on the record) who is in the position of plaintiff or defendant, as the case may be, in the proceeding in question, including a proceeding on a counterclaim.

05. A cursory reading of the above rule clearly indicates that, the power given to the court is a real discretion, which is simply understood from the word ‘may’, used in the said rule. Lord Denning M.R. when interpreting the same word used in the Companies Act 1948 held in Sir Lindsay Parkinson & Co. Ltd v. Triplan Ltd [1973] 2 All ER 273 at 285 that;

Turning now to the words of the statute, the important word is “may”. That gives a judge a discretion whether to order security or not. There is no burden one way or other. It is a discretion to be exercised in all the circumstances of the case.

06. The next important phrase in that rule is ‘if having regard to all the circumstances of the case, the Court thinks it just to do so’, which requires the court to consider all the circumstances of the case before it, in exercising the said discretion and to come to a conclusion that ‘it is just to do so’, before making any order and 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. Sir Nicolas Browne Wilkinson V.C in Porzelack K G v. Porzelack (UK) Ltd, (1987) 1 All ER 1074 at page 1077 as follows:

“Under Order 23, r1(1) (a) it seems to me that I have an entirely general discretion either to award or refuse security, having regard to all the circumstances of the case. However, it is clear on the authorities that, if other matters are equal, it is normally just to exercise that discretion by ordering security against a non-resident plaintiff. The question is what, in all the circumstances of the case, is the just answer”.

07. It follows that, it is no longer an inflexible or rigid rule that a plaintiff resident abroad should provide security for costs. The Supreme Court Practice 1999 (White Book), in Volume 1 at pages 429 and 430, and in paragraph 23/3/3, states clearly and explains the nature of the discretion given to the court, it reads that;

The main and most important change effected by this Order concerns the nature of the discretion of the Court on whether to order security for costs to be given. Rule 1 (1) provides that the Court may order security for costs, “if having regard to all the circumstances of the case, the Court thinks it just to do so”. These words, have the effect of conferring 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. It is no longer, for example, an inflexible or rigid rule that a plaintiff resident abroad should provide security for costs. In particular, the former O.65, r.6s, which had provided that the power to require a plaintiff resident abroad, suing on a judgment or order or on a bill of exchange or other negotiable instrument, to give security for costs was to be in the discretion of the Court, has been preserved and extended to all cases by r.1 (1).

In exercising its discretion under r.1 (1) the Court will have regard to all the circumstances of the case. Security cannot now be ordered as of course from a foreign plaintiff but only if the Court thinks it just to order such security in the circumstances of the case.

08. When considering all the circumstances of the case, the courts in Fiji should consider the plaintiff's country of origin too. The reason for that consideration may be explained in the following manner. Many jurisdictions recognize and enforce the foreign judgments in their jurisdictions, as if those judgments had, originally, been given by their local courts. This recognition may be based on bilateral or multilateral treaties or understanding on mutual assistance. Fiji is...