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Cain v Agius [2003] VUSC 91; Civil Case 148 of 2001 (22 October 2003)

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

CIVIL CASE No. 148 of 2001

BETWEEN:

KEVIN & WENDY CAIN
Plaintiffs

AND:

ROBERT F AGIUS
Defendant

Mr. Ozols for the claimants
Mr. Hurley for the defendant

JUDGMENT

This is an application by the defendant dated 8 September 2003 and filed on 9 September 2003. The application is made pursuant to rule 15.25 of the Civil Procedure Rules 2002, seeking that the claimants provide the further sum of Vatu 140,000 for security for costs on the action.

Before the coming into force of the Civil Procedure Rules of 2002, an application for security for costs was made and granted in favour of the defendant.

The claimants reside outside Vanuatu. They have no assets in Vanuatu apart from the amount of security ordered and paid into the trust fund of their counsel.

This application is for the payment of an additional sum of 140,000 Vatu for security for costs made under the new Civil Procedure Rules 2002.

I deal with this application as if it is an application seeking to vary an order for security previously done.

Rules 15.23 states:

“The Court may... vary an order for security for costs if the court is satisfied that:

(a) the security is no longer necessary; or

(b) there are other special circumstance.”

Mr. Hurley submits that the costs of time spent and the preparation of the sworn statements are well over the amount of security already paid.

The additional amount of Vatu 140,000 for security is necessary to cover the subsequent costs incurred for the time taken and the preparation of sworn statements.

Mr. Ozols concedes to this effect. The coming into force of the new rules constitute special circumstances warranting for further amount of security for costs to be ordered.

ORDER

1. The claimants shall provide the further sum of Vatu 140,000 for the security for costs on the action within 14 days from the date of this Order.

2. The costs are for the claimants. They be agreed if not taxed.

DATED at Port-Vila this 22nd day of October 2003

BY THE COURT

Vincent LUNABEK
Chief Justice