Tominaga v Moehau [2022] TOCA 18; AC 16 of 2022 (7 October 2022)

IN THE COURT OF APPEAL OF TONGA
CIVIL JURISDICTION AC 16 of 2022
NUKU’ALOFA REGISTRY [CV 20 of 2020]

BETWEEN 1. HIROSHI TOMINAGA

2. LESIELI NAMOA

Appellants

AND 1. SIONE ‘ATILI MOEHAU

2. NUKU’ALOFA INVESTMENT LTD

3. SIOSAIA MOEHAU

Respondents

Coram: Hansen J

de Jersey J
Harrison J
Heath J

Counsel: Mr. William C Edwards SC for the Appellants
Mr David Garrett SC for the Respondents

Decided on the papers

Date of Judgement: 7 October 2022

JUDGMENT OF THE COURT

[1] The Lord Chief Justice on 2 September 2022 refused the defendants’ appellants’ discovery application. The appellants now seek leave to appeal against that refusal.

[2] The defendants sought an order that the plaintiffs discover their tax returns showing the sale of the subject property to the defendants and the price received.

[3] The issue is payment of consumption tax on the purchase price. In his ruling, the primary Judge noted his query at the hearing how the plaintiffs’ tax returns could be relevant to any issue, producing a concession the pleadings did not support he application.

[4] The only reference to consumption tax is in paragraph 18 of the statement of claim – that “Seller B” shall be responsible for it. But as the pleadings progressed, it seems not to have become a live issue.

[5] As Counsel for the respondents submits, “the main issue is the price paid for the subject property, and whether that price was in Tongan pa’anga or US dollars”.

[6] The learned primary Judge was right to refuse the application. Seeking access to the plaintiffs’ tax returns was plainly a “fishing expedition”.

[7] Counsel for the respondents says they would accept an order to disclose whether consumption tax was paid, and if so, in what amount.

[8] That appears a reasonable solution, so there should be an order that plaintiffs disclose any documents showing what if any consumption tax was paid on the transaction referred to in these proceedings, within 14 days.

[9] That being an order made on the plaintiffs’ concession. The defendants should nevertheless pay the plaintiff’s costs to be assessed if not agreed.

Hansen J

de Jersey J

Harrison J

Heath J